ICE Hold to Immigration Bond: Can the ICE Detainer Be Lifted?

Understanding Your Legal Strategy When Facing Both Criminal Charges and Immigration Detention in Texas

By Michael Lowe, Board Certified Criminal Law Specialist

Criminal Charges and Immigration Bond

In Texas, when a state trooper or local police officer arrests someone and takes them into custody, that person is fingerprinted as part of the arrest process. The process is the same no matter the crime—from DWI or unpaid traffic tickets to violent felonies like armed robbery or manslaughter.

This person is then placed behind bars and will remain there until something happens to allow their release. Their fingerprints are run through state and federal databases promptly and routinely.

When someone who is not a United States citizen has been arrested and fingerprinted by state or local authorities, federal officers may step into the process at the local jail seeking to “detain” that non-citizen. The Criminal Alien Program (CAP) is initiated when ICE places detainers on individuals the agency believes are subject to removal from the U.S. and are currently in federal, state, or local custody.

This means that I.C.E. agents may become involved whenever someone encounters law enforcement and is not documented as being a U.S. citizen or someone with federal authorization to be in the country. It happens all the time here in Dallas and across Texas.

Important to understand: When ICE becomes involved in Texas criminal cases, it may be because they’ve found a criminal record related to the arrested person—or it may simply be that the federal government cannot confirm the individual is within the United States legally. In other words, this person may be entirely innocent of any wrongdoing and still be caught in the I.C.E. web while reeling from their initial arrest.

What Exactly is an I.C.E. Hold?

When the federal government steps into the local or state arrest process to “detain” a person, this is called an “immigration hold,” “I.C.E. hold,” or “H/F Immigration.” Here’s an example of what you might see on a jail website:

Example of an ICE hold notation as it appears on a county jail website

What happens is I.C.E. files an official document with the jail notifying officials that I.C.E. has an interest in this person and requesting that the jail: (1) notify I.C.E. in advance before the person is released; and (2) hold that person for a 48-hour window past the release date so I.C.E. can transfer custody to federal authorities.

Once that I.C.E. documentation is filed, a completely different federal case begins for this non-citizen—one that is independent from the state or local case.

This person now has two battles to fight: the criminal matter under Texas law, and simultaneously, the immigration case under federal law. With them come two custody issues: release from state/local custody, and then release from I.C.E. custody.

What is an Immigration Bond?

Under the state criminal system, an individual must fight for a state bond to be released from state custody pending trial. When I.C.E. becomes involved, the person must battle a second time, arguing to a federal immigration judge that an immigration bond is warranted. Only if this second bond is allowed and posted will they be released to their families while both cases proceed.

There are times when a non-citizen can be released from I.C.E. custody on personal recognizance; however, many must pay an immigration bond before being freed. (View the official I.C.E. immigration bond form here.)

Immigration bonds are not the same as standard criminal bonds. The immigration bond is a separate bond that must be posted in addition to any bond posted on the state or federal criminal case. The federal immigration judge will decide whether to allow bond and determine the amount.

You are well advised to hire an immigration attorney to advise whether you can even get an immigration bond. Current ICE guidelines and BIA opinion in the Yajure Hurtado case hold that persons who entered the U.S. “without inspection” cannot be considered for an immigration bond. This is a critical issue to discuss with an experienced immigration lawyer.

Not everyone in I.C.E. custody will be eligible for an immigration bond. Some non-citizens may be prohibited from being bonded out under the Immigration and Nationality Act (I.N.A.) and must remain in federal custody until removal/deportation proceedings are completed.

Best Legal Strategy: What NOT To Do

If your loved one is sitting in county jail with an immigration hold, here are critical mistakes to avoid:

1. Don’t Immediately Post Bond on the State Case

If you do this, ICE will pick your loved one up and take them into federal immigration custody. Removal proceedings will begin. Without a clear strategy for success in immigration court, your loved one will likely be deported.

And here’s the worst part: the criminal case does NOT disappear. It stays pending forever. A warrant for their arrest will remain indefinitely active, meaning they will likely never be able to legally return to the U.S.

2. Don’t Plead Guilty or No Contest Without Immigration Advice

Taking a plea bargain without understanding the immigration consequences from an experienced immigration lawyer is a recipe for disaster. A conviction or any sentence can—and likely will—have adverse effects on your loved one’s ability to win their removal hearing or obtain an immigration bond.

Knowledge is power. If your loved one knows their rights BEFORE going to court on the criminal case, they will make better decisions.

3. Don’t Skip Hiring Both a Criminal Defense Lawyer AND an Immigration Lawyer

If you needed back surgery, would you hire your family doctor to perform it? Of course not. Surgeons and primary care doctors have completely different training.

Immigration law and criminal law have virtually no common elements. There are very few, if any, excellent criminal defense lawyers who are also excellent immigration lawyers—and vice versa. You need specialists in both areas working together.

Best Legal Strategy: What You SHOULD Do

Step 1: Hire a Qualified Criminal Defense Lawyer First

If you are in state custody, you have the right to fight your state case. A good criminal lawyer may find defenses you didn’t know existed. While an outright dismissal, no bill, or not guilty verdict may be difficult to achieve, it is not impossible—and it may be your best opportunity to remain in the U.S. or legally re-enter at a later date.

Step 2: Explore Every Avenue for Dismissal

Look for ways to get your state case dismissed, no-billed, or a not guilty verdict. Yes, these outcomes are difficult to achieve—but I have accomplished this on many occasions for my clients.

Step 3: Get Immigration Counsel on Every Criminal Decision

If dismissal isn’t achievable, you need immigration advice about the consequences of each option available on your criminal case. Will you be deported if you go to trial and lose? Will you be eligible for an immigration bond if you accept a plea agreement for a lower-level offense? These are questions only an immigration lawyer can answer—and you need this information before making any decisions.

Important Information for Dallas-Area Cases

The Dallas Field Office for Homeland Security’s Immigration and Customs Enforcement (ICE) is located at:

8101 North Stemmons Freeway

Dallas, Texas 75247

(214) 424-7800

I.C.E. detainees who are no longer in state custody are typically processed at the Dallas Field Office but are not housed there. Instead, detainees will be transported to the Lew Sterrett Justice Center (111 Commerce Street, Dallas, Texas 75207) and within a week, moved to either the Rolling Plains Detention Center in Haskell, Texas, or the Prairieland Detention Facility.

About the Author

Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for many years after first serving as a felony prosecutor for the Office of the District Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has tried to verdict over 150 criminal trials in both state and federal systems.

For a free consultation on your case, visit www.DallasJustice.com or call our office today.