Immigration Detainer

ICE may issue a document commonly referred to as a “detainer” to a local jail or correctional facility when it is seeking custody of an individual in that facility for purposes of instituting removal proceedings.  A detainer can be placed against a client pretrial without legal status because the person generally does not have grounds for remaining in the U.S. regardless of the outcome of the criminal case.

A client with legal immigration status is generally not subject to an immigration detainer before the conclusion of the criminal case, unless he or she has prior convictions rendering him or her removable or has been previously ordered removed. Detainers are also lodged against noncitizens serving prison sentences pursuant to conviction.

Generally, an immigration detainer is a request to a local law enforcement agency to detain a named individual for up to 48 hours after that person would otherwise be released (excluding Saturdays, Sundays, and holidays), in order to provide ICE an opportunity to assume custody of that individual.  The 48-hour period begins to run when the named individual is no longer subject to detention by the local law enforcement agency—that is, after the individual has posted bond or completed a jail or prison sentence.

Detainers are served like a warrant on local sheriff''s, state agencies, and sometimes even federal agencies on Form I-247 (Notice Of Action).The detainer may include important information, such as whether a client was previously ordered removed. Click here to see a sample detainer form I-247 (Notice Of Action).

IT IS POSSIBLE TO POST A BAIL BOND FOR AN INDIVIDUAL BEING HELD ON A CRIMINAL MATTER EVEN IF AN IMMIGRATION DETAINER OR IMMIGRATION HOLD HAS BEEN PLACED ON THE DEFENDANT!

If a detainer is placed pretrial against an individual and he or she posts bail, ICE must assume custody of him or her within 48 hours. If ICE fails to assume custody of the individual during the 48-hour period, the individual should be immediately released. The local jail or correctional facility no longer has the authority to detain an individual once the detainer has expired. Any additional detention is unlawful and in violation of state pretrial release laws, and could subject the facility to suit for false imprisonment.

Similarly, the state lacks authority to hold someone who has served his or her maximum sentence for the offense. In practice, however, jails and correctional facilities may be reluctant to release the detained individual.

Bond Considerations for a Client with an Immigration Detainer
An immigration detainer is often lodged against a client before he or she has an opportunity to post bond. In those circumstances, if the client posts bond, ICE has the authority to assume immediate custody of him or her. If ICE exercises its authority and takes your friend or loved one into custody, he or she may be sent to an out-of-state immigration detention facility for the institution of removal proceedings.

1. Identification
2. Immigration Detainer
3. In ICE / DHS Custody
4. The ICE Investigation
5. The Court Procedure & Posting The Immigration Bond