U.S. Immigration and Customs Enforcement (ICE) is the federal agency tasked with, among other things, taking custody of and removing undocumented immigrants from the United States.
One of the tools ICE has at its disposal is known as a detainer, also called an immigration hold, which is a written request from ICE to a federal, state, or local law enforcement agency to hold a suspected undocumented immigrant who is already in custody for an additional 48 hours, so that ICE has time to come and assume custody of that person.
If ICE has issued an immigration hold to a law enforcement agency that currently has you or a loved one in custody, it means that ICE wants to take you into its custody so that the government can pursue deportation or other immigration proceedings against you.
An immigration hold is a very serious matter. However, with quick and skilled legal assistance, you may have the ability to get the hold lifted. Here’s how.
Immigration Holds Are Voluntary, and Not All Law Enforcement Agencies Follow Them
The first important thing to understand about immigration holds is that they are merely requests. For the most part, the law enforcement agency that has you or a loved one in custody does not have to comply with them.
So, the fact that ICE has issued an immigration hold does not necessarily mean the law enforcement agency will follow it.
A skilled immigration attorney can find out quickly whether the law enforcement agency that has you or your loved one in custody intends to comply with an ICE immigration hold. If not, or if the attorney can talk the law enforcement agency out of complying, then the immigration hold might never go into effect, and it should not impact any right you may have to be released from custody.
Immigration Holds Are Not Arrest Warrants
One important fact an experienced immigration attorney may want to learn, in the event you face an immigration hold, is why you are in custody to begin with, and what right law enforcement has to keep you detained.
Here’s why that’s important. By law, the police or other law enforcement agencies can only arrest and take you into custody if they have probable cause to believe you have committed a crime. Even with probable cause, they can only keep you in custody for a limited period of time before they must charge you with a crime or release you. And, even if you have been charged, you can only remain in custody if you cannot make bail, if a judge denies you bail, or if you are convicted and sentenced to a term of incarceration.
An immigration hold from ICE is not an arrest warrant. On its own, it generally does not give law enforcement any legal right to arrest you, or to keep you in custody past the time when you have a right to be released.
That means that if you have a legal right to be released from custody, an immigration hold, on its own, should not legally serve as a new reason to keep you in jail. Holding on to you in that situation, just because ICE has issued an immigration hold, may amount to a violation of your constitutional rights.
An experienced immigration lawyer can act quickly to determine whether someone has a legal right to be released from custody (either because they haven’t been charged, have been given bail, have won their case, or have completed a sentence), so that prompt action can be taken to get that person out of custody before ICE shows up.
ICE Sometimes Issues Mistaken or Illegal Immigration Holds
ICE has been known to use immigration holds aggressively as a tactic to round up undocumented immigrants. Sadly, that has led to mistakes and abuses in the immigration hold process.
For example, ICE has in the past issued immigration holds for a person in custody who they mistakenly believe is someone else. ICE may also issue immigration holds for invalid or illegal reasons, such as because someone has a common Mexican name, or was arrested on a charge ICE associates, undocumented immigrants, or because a local police officer has a “hunch” or a “gut feeling” that a person he arrested is in the country illegally.
A skilled immigration attorney can take swift action to explore the reasons for ICE’s issuance of an immigration hold, and to challenge those reasons in court if they appear mistaken or illegal.
Immigration Hold? Here’s What To Do.
If you find out that ICE has issued an immigration hold for you, then these tips can help to protect your rights:
- Do not tell anyone about, or discuss in any way, your immigration status. No one can force you to answer questions. Say you want to speak with a lawyer and then say nothing more.
- Do not lie about anything. Ideally, you should not speak to law enforcement at all, but if it happens, then never, ever lie. In particular, do not lie about your immigration status. Lying about your status is a crime. Staying silent, however, is not a crime.
- Seek the help of an experienced immigration attorney immediately. An attorney may need to take quick action on your behalf to get an immigration hold lifted. Do not wait to contact an attorney.
Get Experienced Immigration Legal Help Today
An immigration hold means ICE wants to take someone into custody within the next 48 hours, because it thinks the government may have the right to deport that person or to take other action against that person that could affect their immigration status.
However, an immigration hold does not necessarily mean that ICE or anyone else has the right to take someone into custody, or that someone has done anything wrong.
To protect your or your loved one’s ability to remain in the United States, and to exercise your Constitutional rights, contact an experienced immigration rights attorney immediately upon hearing that ICE has issued an immigration hold for you or your loved one.