An ICE hold refers to a written request from U.S. Immigration and Customs Enforcement (ICE) to a local jail or other law enforcement agency that has taken a person into custody after a lawful arrest. The request asks that the jail or agency detain the person for an additional 48 hours after his/her scheduled release date.
The purpose of the request is so that ICE agents can have extra time to determine if they want to detain the arrestee for deportation proceedings. ICE holds are often referred to as:
- “ICE detainers,”
- “immigration detainers,” or
- “immigration holds.”
Note that ICE is the primary investigative agency for the U.S. Department of Homeland Security (DHS). ICE’s mission is to advance homeland security by enforcing federal rules regarding
- border control,
- customs, and
- immigration laws.
If you have a loved one or family member that is subject to a hold, it is critical for you to contact an immigration attorney for help. A skilled immigration lawyer can challenge the legality of a hold and work to get your loved one released.
What is an ICE hold?
Whenever local law enforcement agencies arrest someone in a criminal case, the arrestee’s name and fingerprints are transmitted to the FBI and ICE. If ICE believes the arrestee may be in the U.S. illegally, ICE can request that the county jail or agency of the federal government detain the arrestee and “hold” him/her for an additional 48 hours, excluding weekends and holidays. This hold is referred to as an “ICE hold.”1
Many people think that an ICE Hold is a warrant, but it is not. An “ICE Hold” (also known as an immigration hold or immigration detainer) is a “hold” placed on an individual detained at a local jail.
ICE officers request an ICE detention so that they can have extra time to investigate the arrestee to:
- decide whether they want to take custody of the detainee, and
- initiate deportation proceedingsor removal proceedings.2
Note that an immigration hold, on its own, does not mean that an arrestee will be deported or taken to an ICE detention center or field office. It simply provides ICE with some extra time to decide whether it wants to initiate deportation proceedings against an undocumented immigrant.3
What happens if ICE takes a person into custody?
ICE will take an arrestee into custody if it decides that he/she is in the U.S. illegally, and it then transfers the person to a detention facility.
The agency will then likely commence removal proceedings and issue a Notice to Appear (NTA), which outlines the legal reasons why the detainee should be deported.
ICE defendants then may either be:
- released on bail (via an immigration bond),
- released on their own recognizance, or
- subject to mandatory detention pending the outcome of the removal case.4
People held by ICE usually have the right to have their case presented to a judge in an immigration court.
What happens if an arrestee is not taken into ICE custody?
If ICE does not take custody of an arrestee after 48 hours, the local law enforcement agency is required to release the person. The agency cannot legally hold a person beyond the 48-hour period.
Similarly, a jail or local sheriff’s department must release arrestees following detainer requests if ICE determines that they are either:
- U.S. citizens, or
- not subject to deportation.
Do law enforcement agencies have to comply with an ICE hold?
No. ICE asserts that it has authority to issue an immigration detention request under federal law.5
However, law enforcement agencies do not have to comply with a request, and they can legally deny one. This is because an immigration detainer is not a type of judicial warrant, and it is not supported by probable cause.
How can you help a loved one get released?
If a loved one or a family member is the subject of an ICE hold, it is imperative that you contact an immigration attorney for help.
An immigration lawyer can contact the local ICE office that has jurisdiction over the case and request that the agency lift its detainer.
If the arrestee is a U.S. citizen, an attorney can try to provide a field office with:
- a copy of the arrestee’s birth certificate,
- a copy of a U.S. passport, or
- naturalization certificates.
If your loved one is eventually taken into ICE custody, an attorney or law firm can:
- help the person get released from detention, and
- represent him/her in immigration court.
Please note that all communications with a lawyer are protected by the attorney-client relationship. This means an attorney cannot disclose your confidences without your consent.
You need to remember that a criminal bond and an ICE bond are not the same thing. Let’s go back to the example. If your family pays the $10,000 criminal bond, you will normally be transferred to ICE under the authority of the ICE hold within 48 hours. Once you are in ICE custody, an ICE officer will decide if you can be given an ICE bond, and if so, how much it will be. If ICE sets a bond for you, this is a different bond than the criminal bond, and someone will have to pay the ICE bond in order for you to be released from ICE custody.
You should know that if ICE sets you a bond that is too high for you or someone else to pay, most of the time you can have a hearing before an Immigration Judge and ask him or her to lower the bond.
However, sometimes the law will not allow ICE or an immigration judge to give you an immigration bond. This is what the law calls “mandatory detention.”
Legal References:
- See ICE website, “ICE Detainers: Frequently Asked Questions (FAQs).”
- See same.
- See same.
- See 18 U.S. Code 3142.
- See also 8 C.F.R. 287.7.
