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.

This week I had a person’s loved one contact me to tell me that she was very frustrated and upset. She began to tell me in the middle of the night immigration officers (Immigration Customs Enforcement – ICE) made their way into his home and arrested the boyfriend and took him to the Hudson County Jail. She could not understand why.

She began to tell me the following: Her boyfriend was previously (over 10 years ago) convicted of a gun charge and sentenced to time in prison. He was a permanent resident (green card holder) and had been living here since childhood. In fact, he entered the U.S. almost 30 years ago. His parents and siblings were all in the U.S. and either U.S. Citizens or Permanent Resident. She could not understand why her boyfriend was again arrested for a crime he committed over 10 years ago and for which he paid his dues to society (afterall he spent over a year in prison for that offense). She continued to say that he had been out of prison for almost 10 years and had completed parole. Why would they come after him now? She was very upset and couldn’t figure out what was happening and why the *?&%#!! now???!!!!?!!. (I’ll leave out some of the language used although it was a worthy reaction)

These fact patterns are actually very common in my practice. As such, I decided that perhaps I should write about this topic and address some of the frequently asked questions. So, here it is . . . . .

Who can be deported or removed from the United States?

Essentially, anyone that is not U.S. citizen can be deported or removed. This can include someone that may entered the country illegally (through the Mexico border perhaps) overstayed their authorized stay (a tourist), violated terms of their authorized stay (a foreign student who stopped attending school) or even a permanent resident (green card holder).

How can Immigration (ICE / DHS) deport or remove a permanent resident (green card holder)?

Having the status of permanent resident does not guarantee that you can stay in the U.S. Convictions of certain crimes could cause someone to be placed in removal or deportation proceedings. These crimes can include (but are not limited to) crimes involving moral turpitude, aggravated felonies and controlled substance offenses (drugs). If Immigration decides that an individual has been convicted of a deportable/removeable offense, they can start removal proceedings.

What happens when Immigration (ICE /DHS) decides to start removal proceedings?

ICE / DHS will issue a Notice to Appear requiring the person to appear in front of an Immigration Judge. This can precede or follow the arrest of the person or simply require the person to appear on his own in front of an Immigration Judge.

Why would Immigration (ICE / DHS) arrest someone?

Although this is a loaded question, I’ll try to provide a general answer. Immigration arrests someone if they feels the person is a flight risk, security risk and/or danger to the community.

Why did Immigration (ICE / DHS) wait so long to arrest the loved one?

Good question . . . Although we likely will never know the one answer to the question, I can tell you that the increase in technological advances and databases certainly contribute. In addition, the fact that there has been less enforcement against illegals without criminal history has unfortunately caused a giant increase of enforcement against individuals with criminal backgrounds.

Where does Immigration (ICE / DHS) take someone from New York City after an arrest? Most individuals from New York City are held in New Jersey in places such as the Hudson County Jail or Essex County Jail. Immigration can however theoretically move these individuals anywhere. That is why it’s important to act fast!!!!!!!! I cannot emphasize this enough. Hire a lawyer and do it fast. We have had family members tell us their loved one was sent to Texas before they had a chance to even hire a lawyer.

What is the next step after Immigration arrests someone?

The very first step is to try to have the person released on bond and have them rejoin their loved one. Thereafter, you can fight tooth and nail to try to put the immigration problem behind you.