An immigration hold is placed on an individual who has been arrested for a criminal charge and is taken to jail. ICE (Immigration Customs Enforcement) checks the list of inmates in the jail on a regular basis. When they see that an inmate is deportable they contact the jail and place a hold on the inmate. An immigration hold may be placed on a person who is in the United States illegally because he/she entered the USA without inspection or overstayed a visa. An immigration hold may also be placed on a person in the United States legally – including a permanent resident – when a conviction to the charge(s) is a violation of the terms of a visa, an aggravated felony, or a crime involving moral turpitude.
Before ICE can take custody of the individual the criminal charge must be disposed of – including any sentence that must be served. In the event that a person successfully defends against the criminal charge an immigration hold may remain in place for a person in the USA illegally. The immigration hold will be lifted for the person who is in the United States legally and successfully defends against the criminal charge.
Once the criminal case has been disposed of, ICE has 48 hours (excluding weekends & holidays) to transfer the inmate from the county jail to an immigration holding facility. There are cases where ICE has a contract with a local jail and the person is transferred into the custody of ICE but not actually moved to a different detention center. The 48 hour rule is not always complied with. When the rule is not complied with the recourse is to file a writ with the federal court. The problem with this process is, the minute you take action in the federal court ICE will pick up the detained person. In my practice the situation is better taken care of by contacting ICE, requesting that they take action and at the same time filing a request for bond or ROR.
It is strongly advised that when a friend or loved one – who is not a United States citizen – is arrested, you immediately retain an attorney experienced in criminal defense and removal defense. The final disposition of the criminal case will be critical to the defenses available in immigration court. Hiring one attorney who knows how to handle the case in criminal court in order to protect the immigrant’s interests in immigration court is critical.
Kyndra L Mulder, Esquire, has been an attorney for over 25 years. She practices 100% immigration law including criminal defense for the immigrant. Attorney Mulder provides representation to immigrant clients throughout Florida in criminal and immigration court.