You’re responding to a 2:00 a.m. jail call. Your client’s at the county jail charged with DWI, possession of marihuana, and unlawful carrying of a weapon. Luckily you’re able to get a reasonable bond set, BUT . . . by the time you get to the jail to post your client’s bond, immigration has placed a detainer. Your case is shot. Or is it? And your client is going to be deported. Or is he?
Two years ago, Immigration and Customs Enforcement (ICE), the immigration enforcement division of the Department of Homeland Security, began emphasizing the removal of criminal aliens from the United States. ICE began working with local law enforcement to help them identify all non-U.S. citizens arrested. The number of immigration detainers multiplied for persons arrested for even minor traffic violations like driving without a license and misdemeanor offenses. Misconceptions have grown over what rights persons with immigration holds have.
The purpose of this article is to guide criminal defense attorneys on how to handle incarcerated clients with immigration holds.
Legal Authority for Immigration Holds
The Department of Homeland Security can place a detainer advising a state prison, or another law enforcement agency, that ICE seeks custody of an alien presently in their custody. 8 CFR Sec. 287.7(b). The law enforcement agency shall hold the person for up to 48 hours, excluding Saturdays, Sundays, and holidays, to allow ICE to assume custody. 8CFR Sec. 287.7(d). The regulations empower the Department of Homeland Security to issue detainers “for the purpose of arresting and removing the alien.” 8 CFR Sec. 287.7(a) These regulations create three ground rules necessary to understand when dealing with an Immigration hold.
First, an immigration detainer does NOT give ICE immediate custody of your client. A detainer is like a lien. ICE will not take custody of your client until the law enforcement agency detaining him is set to release him. In other words, ICE will not move him, consider the particulars of the case, or (in a worst-case scenario) deport him until he bonds out, the charges are dropped, or he’s completed his sentence. This gives the family and the criminal defense attorney time to map out a plan for dealing with ICE and the Immigration Judge once they get custody of your client. It also gives the criminal defense attorney the chance to explore ways to tailor a plea or sentence to mitigate the client’s immigration exposure.
Second, pending charges cannot be the basis for the detainer. The only legal basis for an immigration detainer is either your client is illegally in the United States, or he is legally in the United States, perhaps as a Lawful Permanent Resident, but has been convicted in the past of a deportable offense.
Third, just because your client is in jail and has an immigration hold does not mean he will be deported or that he will not be released once he is transferred to immigration’s custody. Unless your client has a conviction that subjects him to the mandatory detention or has been previously deported, he is eligible for an immigration bond, to be set initially by the ICE officer who reviews his case once he transferred to their custody. If the ICE officer does not set a bond amount, or sets too high a bond amount, an Immigration Judge can hold a Bond Redetermination Hearing to reconsider your client’s bond amount.
Once the immigration bond is paid, your client will be released pending a future hearing date with an immigration judge. Even persons illegally in the U.S. are eligible for bonds. If an immigration bond is set and paid, the client will have several months before his hearing with an immigration judge. Even if he is ordered to return to his country, it can often be under a voluntary return order, giving your client up to 120 days to leave the U.S. on his own without the penalty of a deportation order.
What to Ask Clients Detained with Immigration Holds
You’ve made the trip to the jail to bond your client out, only to find out he’s got an immigration hold. Before returning to the office, ask your client these questions:
What is his immigration status? Does he have legal status in the U.S.? If he is illegally in the U.S., check if he has an application pending (usually an I-130 petition) through a family member (spouse, parent, sibling). If he has a pending petition, does he have a copy of the receipt or approval notice sent by immigration? Someone without legal status in the U.S., but with a pending petition through a family member, is in better position to secure an immigration bond with ICE and an Immigration Judge.
Has he been deported before? If your client has been deported before, his immigration rights to a bond are severely harmed. Even if your client has a lawful permanent resident card (the “green card”), make sure he has not been previously deported.
What was he arrested for? Does he have any priors? Prior convictions will affect his bond setting by both an ICE officer and an Immigration Judge.
What family with lawful status do they have in the U.S.? Family ties will affect bond settings.
Preparing for Immigration
Let’s go back to the opening scenario. Your client is arrested for DWI, possession of marihuana, and unlawful carrying of a weapon. By the time you try to pay the bond, your client has an immigration hold because your client is illegally in the U.S.—or he is a Lawful Permanent Resident (he has his “green card”) but was previously convicted of a deportable offense. Remember that immigration will not take custody of your client until the state is ready to release your client. This gives you time to address the immigration aspects of his case, pursuant to Padilla vs Kentucky, with your client, his family, and an immigration attorney.
Remember, there are ways of ways of tailoring a sentence or conviction (like pleading to a lesser included offense) that can decrease or eliminate your non-U.S. citizen client’s exposure to deportation. As Justice Stevens wrote in Padilla vs Kentucky, “Counsels who possess the most rudimentary understanding of the deportation consequences of particular criminal offenses may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduce the likelihood of deportation, avoiding a conviction for an offense that automatically triggers removal consequences.”
Once the criminal bond is posted, he will be moved to ICE within 48 hours. There will be two chances at getting the detainee an immigration bond, first with the ICE officer who makes the initial bond setting and, if that doesn’t go so well, a second chance before an immigration judge. A hearing with an Immigration Judge can be scheduled usually within less than one week after filing a Motion for a Bond Redetermination Hearing with the Immigration Court. If the client is in the U.S. illegally—but has a visa petition pending through a family member and lives with family members with legal status in the U.S.—having copies of the visa receipt and proof of the family’s legal status ready to give the ICE officer when the client is transferred to ICE can help secure an immigration bond immediately upon being transferred to ICE custody.
If an immigration bond is set and paid, even under a worst-case scenario, the client will be free for typically 8–10 months by ICE while awaiting a hearing with the immigration judge and complying with any voluntary return order issued. This can give the criminal defense attorney time to resolve the criminal charges in a way that minimize the client’s immigration exposure and leaves the door open for him to stay in the U.S.—or legally return to the U.S. at some future time.
Fernando Dubove received his B.A. and J.D. from the University of Texas at Austin. In 1987, he served as Assistant Director in Texas for a Washington, D.C.,-based immigrant and refugee rights organization. He served as the staff trial attorney for the Diocesan Migrant and Refugee Services in El Paso. He is now in private practice with offices in Dallas and Tyler. Fernando is the author of “Immigration Implications for Criminal Convictions,” published in the Voice of the Defense, and co-author of “The North American Free Trade Agreement: Immigration and Labor Considerations,” published in the Texas Bar Journal. He is a member of the American Immigration Lawyers Association. The Dallas Observer named him the best Immigration Attorney in Dallas. Born in Argentina, Fernando is fluent in Spanish and English.