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The New ICE Detainer Form

Many deportation cases start with an arrest for other offenses.  Even if the offense is minor (such as driving without a license), a person may find himself kept in custody because of something called an “ICE hold”.  A person receives an “ICE hold” when ICE sends the local jail a form called an “immigration detainer.”  This detainer allows the jail to hold the person for a certain amount of time for ICE to decide whether to take him into immigration custody.

Within the last month, ICE has made several important changes to the immigration detainer.  These changes are one more step in the Federal government’s policy to focus their deportation efforts on “high-priority” defendants.  Changes include the following:

  • The immigration detainer is now very clear that a local jail can hold a person for ICE for no longer than 48 hours (weekends excluded).  Under the old form, jails would sometimes hold people for ICE longer than 48 hours.  There should be no confusion with the new form.
  •  The new form allows ICE to require that a copy of the detainer be given to the person held.  Until now, it has been difficult for defendants or their lawyers to get a copy of the actual detainer.  That is expected to change.
  •  The new form allows ICE, if it chooses, to make the detainer effective only upon conviction of the charge for which the person is in jail.  This is a significant change.  Up until now, immigration detainers would become effective as soon as a person was eligible for release from state custody (for example, by posting bond).  This process led to many people being placed in deportation proceedings because of minor criminal charges.  Under the new system, if ICE marks the “conviction only” section, persons who post bond for minor offenses can be released from jail and may not automatically be referred for deportation.
  •  The new form helps persons who are crime victims or witnesses by providing a number that law enforcement can call for advice.  This should help people who may be eligible for U, T, and S visas make their claims to avoid deportation.

Change often comes slowly, and many jails may not recognize or understand the significance of the new form at first.  It is therefore important to know your rights.  If you or someone you know is arrested and subject to an “ICE hold”, ask for a copy of the immigration detainer.  Read it carefully, and insist that the jail respect it.  Remember that the jail can only legally hold someone for immigration as provided under Federal law and regulations.  If there is a problem, contact a qualified immigration attorney immediately for help.