ICE Holds

Typically, when an individual has been arrested and a bond has been set, the individual will be released once the bond amount has been paid – usually by a family member, friend or bond company. However, this is not always the case for individuals in jail who have an “immigration detainer” or “hold” placed on them – even if someone has posted a bond to secure their release.

The Immigration and Nationality Act controls immigration detainers, and covers in relevant part:

What is an immigration detainer?

An immigration detainer (Form I-247) is a notice that the Department of Homeland Security (“DHS”) issues to federal, state and local law enforcement agencies (“LEA”) to inform the them that Immigration and Customs Enforcement (“ICE”) intends to assume custody of an individual who is currently in the LEA’s custody – even if a bond has been set and paid.

An immigration detainer serves three key functions:

1) to notify an LEA that ICE intends to assume custody of an individual in the LEA’s custody once the individual is no longer subject to the LEA’s detention (in other words, once the bond has been posted);

2) to request information from an LEA about an individual’s impending release so ICE may assume custody before the individual is released from the LEA’s custody; and

3) to request that the LEA maintain custody of an individual who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody.

Why does ICE issue detainers?

Detainers are crucial for ICE to be able to identify and ultimately remove individuals who are currently in federal, state, or local custody.

ICE relies on the cooperation of state and local law enforcement agencies in this effort.

Essentially, by issuing a detainer, ICE is requesting that a law enforcement agency notify ICE before releasing an individual and to maintain custody of the individual for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, to allow ICE to assume custody.

What happens if ICE does not assume custody of the individual after 48 hours?

If ICE does not assume custody after 48 hours (excluding weekends and holidays), the local law enforcement agency is required to release the individual. The LEA may not lawfully hold an individual beyond the 48-hour period.

So, importantly, when seeking the release from jail of an individual by posting his or her bond, it is vital to determine whether or not there is an immigration detainer or hold in place. If so, the individual will not be immediately released from jail – even if you have posted the bond – and forced to remain in custody for 48 hours (excluding weekends and holidays) to give ICE an opportunity to come and take them. If this happens, it is likely that the money used to post the individual’s bond will be forfeited.

*Edward “Eddie” Cawlfield is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered legal advice. For specific legal advice about any case please schedule a free consultation at 972-369-0577.