Our office is contacted quite often by family members whose loved ones were arrested by police for a criminal offense. The issue of a detainer usually arises when a non-U.S. citizen is the defendant in the criminal case. Although the criminal court may decide to grant bail, often times Immigration through the Immigration Customs Enforcement (ICE) will issue a “detainer”, which is a request to the jail not to release the person without notification to ICE because of the immigration issue. The key word was “request”. Yes, it is technically only a request and not an order to the officials at the jail. In addition, the request is for a period not to exceed 48 hours, not including federal holidays or weekends. Keep in mind that the issuance of the detainer does not mean that there is an Immigration Warrant. ICE can issue a detainer for simply an Immigration investigation.
What can someone do if there is a detainer by Immigration (ICE) due to an arrest in New York City? The first thing that needs to be done is to make sure the loved one is represented by competent criminal defense counsel and immigration counsel. Sometimes, the issue of the detainer can be worked out with an official from ICE. ICE through the Department of Homeland Security may issue a DHS Bond.
What if Immigration (ICE / DHS) refuses to issue a DHS Bond? If there is a refusal by ICE or DHS to issue bond, one can apply to the Immigration Court for a Bond reconsideration. At that stage, an Immigration Judge will decide whether the person is subject to release through bond or whether the person is subject to mandatory detention. Even if eligible for release on bond, the loved one will need a strong advocate to increase the chances of release on bond and to make a valiant effort to assure the bond is as low as possible.
What should be done when a loved one is arrested by local law enforcement such as NYPD? First try to ascertain the immigration status of the loved one. If the person is a US citizen, there should not be an immigration detainer. If the person is a green card holder (permanent resident), the person can still be placed in removal proceedings depending on the criminal issues involved. In addition, anyone who has violated their immigration status (such as a person with a student visa who has stopped attending school), may also be placed in removal proceedings.
Once you ascertain, the persons immigration status, one must carefully consider any past criminal history to determine the next strategy. Any criminal history may further impact what happens to him as a result of the detainer.
The bottom line is you will need to make sure that an immigration lawyer deals with the immigration issue. My experience has been that when there is both a criminal issue and an immigration issue, the immigration issue usually is the bigger issue to deal with. For example, here in New York City a person without any immigration status and charged with petit larceny (“petty” larceny) for stealing a pair of $30 sunglasses, may have a criminal case against them and an ICE detainer. In that particular case, most likely the criminal case will be dealt with rather quickly by criminal defense counsel. However, although petit larceny is usually not considered a serious offense in the criminal court system in NYC, Immigration officials consider this offense a “crime involving moral turpitude” and may consider such a person deportable for a conviction for that offense, as well as for being illegal in the country. So, the bigger problem to deal with will usually be the immigration issue. All too often, individuals do not recognize this and end up in immigration custody for an unreasonable period of time.