Criminal Defense of Immigrants


§ 6.11 A. Immigration Holds in Criminal Cases

Skip to § 6.

For more text, click "Next Page>"

If an immigration hold is placed before the client is actually released onto the streets, the criminal custodian will maintain the client in the criminal detention facility and inform the immigration authorities to come pick the client up to transfer the client into immigration detention.  Because many clients with criminal histories are subject to mandatory immigration detention, without possibility of bond, these clients can then pass months or even years in mandatory immigration detention while they contest removability before the immigration judge, and on appeal to the Board of Immigration Appeals, or United States circuit courts of appeal.


Criminal law enforcement agencies are required to inform the DHS of noncitizens taken into criminal custody for controlled substances violations. [1]

Specifically, the DHS must be informed if the law enforcement official:

(1)  has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States (e.g., as an illegal entrant or visa overstay),

(2)  expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the aliens, and

(3)  requests the Service to determine promptly whether or not to issue a detainer to detain the alien, the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.[2]


The law enforcement agency must also provide the DHS with any record available that “reasonably relates to the [noncitizen’s] status in the United States, or that may have an impact on conditions of release.”[3]


The DHS generally will respond to such notification in one of three ways: (1) immediately interview the detainee by phone to determine alienage and present immigration status; (2) immediately dispatch an immigration officer to interview the detainee in person at the detention facility; or (3) indicate to the state or local official that the Service cannot or will not pursue any investigation of the detainee. If, after a telephone interview, the ICE agent believes the detainee to be deportable, s/he will verbally request that the state or other local officials maintain the individual in custody.[35]

Once DHS becomes aware of a suspected deportable noncitizen, through notification by local authorities or through its own investigatory processes and periodic visits to local jails and prisons, it may file an immigration “hold” or “detainer” with the local, state, or federal law enforcement agencies who have custody of the person.


                Additionally, if the defendant has signed a form agreeing to voluntary departure[5] under safeguards,[6] the DHS has custody of the noncitizen.  However, the client or counsel retains the right to revoke the request for voluntary departure.  To revoke a request for voluntary departure the attorney must present a G-28 Form to the DHS or the border patrol showing that the attorney is authorized to represent the alien.


                If your client has a detainer, you are put on notice that DHS may pick up your client after criminal charges are disposed of or after your client’s sentence has been completed.  Therefore, you should consult an immigration attorney about the client’s deportation defenses, if any, and attempt to obtain a criminal disposition which will not render the client deportable.  A criminal defendant with a detainer must first post bond or be granted O.R. in the criminal case before the defendant will be picked up by DHS at which point bond will be set if there is no mandatory detention.  Immigration bond is unavailable for most criminal grounds for deportation because they trigger mandatory deportation without possibility of bond.  See § § 6.37-6.42, infra. 

[36] INA § 287(d), 8 U.S.C. § 1357(d). 

[37] Id. 

[38] 8 C.F.R. § 287.7(c).

[39] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 8:7 (National Lawyers Guild 2007).  8 C.F.R. §   287.3 provides: “(d) Temporary detention at Service request. Upon a determination by the Service to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Service.”

[40] See § § 15.29-15.33, infra.

[35] Form I-274.



Aarti Kohli, Peter L. Markowitz, and Lisa Chavez, Secure Communities by the Numbers: An Analysis of Demographics and Due Process (October 2011). This report found that young Latinos are imprisoned and removed at rates higher than is true of the immigration population generally. The report states: -- approximately 3,600 US citizens have been apprehended by ICE through S-Comm (at 4); -- 39% of the people identified for deportation by ICE in our study reported having a U.S. citizen family member (at 5); -- 93% of the people identified for deportation through Secure Communities are from Latin American countries, compared to 53 percent of the foreign-born population of the United States as a whole and 77 percent of the undocumented population (at 5-6); -- 83 percent of individuals identified through S-Comm were detained pending removal proceedings compared to 62 percent of all people apprehended by DHS (at 7); -- individuals in our sample population spent an average of 28 days in detention and 28% spent more than one month in detention (at 7); and -- 27 percent of people identified through S-Comm were charged as removable under a crime-based ground (at 9 tbl.3). Thanks to
The TRUST Act, which went into effect Jan. 1, prevents local law enforcement from detaining noncitizens pursuant to an immigration hold or detainer, beyond the time that they otherwise could be released from criminal custody. See Immigrant Legal Resource Center, Guide, California TRUST Act: A Guide for Criminal Defenders, This Guide discusses how the TRUST Act works and defense strategies in light of the Act. For more information on ICE holds and immigration enforcement generally, please see

First Circuit

Morales v. Chadbourne, ___ F.3d ___, 2015 WL 4385945 (1st Cir. Jul. 17, 2015) (U.S. citizen, who was kept in custody due to immigration detainer, after she was entitled to release, was subjected to new seizure for Fourth Amendment purposes).

Third Circuit

Galarza v. Szalczyk, __ F.3d __ (3d Cir. Mar. 4, 2014) (immigration detainers cannot compel a law enforcement agency to detain suspected aliens subject to removal; defendant-county was free to disregard the detainer, and therefore cannot use as a defense that its own policy did not cause deprivation of plaintiff's constitutional rights).

Fifth Circuit

Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. Jul. 18, 2012) (denial of drug rehabilitative treatment to prisoners with ICE detainers did not violate prisoner's due process rights or the equal protection clause; BOP policy was rationally related to BOP's legitimate interest in preventing prisoners from fleeing).

Ninth Circuit

Miranda-Olivares v. Clackamas County, ___ F. Supp. 2d ___ (D. Or. Apr. 11, 2014) (8 CFR 287.7 does not require law enforcement to detain suspected noncitiens upon receipt of a Form I"247; county officials violated fourth amendment rights to due process by holding noncitizen in custody of jail solely on the basis of an immigration detainer, which constituted a new seizure; ICE detainer is not sufficient basis for jail to reasonably conclude it had probable cause to detain past the release date; county may be held liable for any period of unlawful detention), citing Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. Mar. 4, 2014) (finding immigration detainers are not mandatory).

Eleventh Circuit

United States v. Blas, 2013 WL 5317228 (SD Ala. September 20, 2013) (right to bail under 28 U.S.C. 3142 trumps ICE detainer); see Lena Graber, Practice Advisory, NIP/NLG


DETENTION " SECURED COMMUNITIES PROGRAM ENDED Nov. 20, 2014 DHS Memorandum terminating secured communities program.
Arapahoe County, Colorado, agreed to pay $30,000 to Claudia Valdez who was illegally held by the county jail for three days on an ICE detainer in 2012. See ACLU website, Thanks to Hans Meyer, Esq
Attorney General Kamala D. Harris issued an information bulletin to California law enforcement agencies on their responsibilities and potential liability for complying with Immigration and Customs Enforcement (ICE) federal detainer requests. She informed then of the new requirements they face since enactment of the California Transparency and Responsibility Using State Tool Act (TRUST Act) and new federal case law that creates a legal liability risk for local law enforcement agencies that voluntarily comply with federal detainer requests. To view Attorney General Harriss information bulletin click here:
Revised 2012 ICE Detainer Guidance: Who It Covers, Who It Does Not, & the Problems that Remain. The National Immigrant Project (NIP) and the Immigrant Legal Resource Center (ILRC) announce Practice Advisory regarding the December 2012 ICE Detainer Guidance & Form: In December 2012, Immigration and Customs Enforcement (ICE) announced new ICE detainer guidance and issued a new detainer form which it claimed would result in the issuance of fewer detainers. The attached Practice Advisory provides guidance surrounding what this change actually means. In particular, the advisory discusses who will continue to be captured by the new ICE detainer guidance, who will be helped, and the administrative and procedural problems that remain.
Christopher N. Lasch, How the Courts Upholding of Federal Immigration Enforcement Authority in Arizona v. United States Casts Doubt on the Validity of Federal Immigration Detainers, 46 Loyola Los Angeles L. Rev. --- (forthcoming 2013) (federal government lacks the authority to issue immigration detainers as it has being doing with great frequency in recent years). First, Lasch argues, the regulation DHS relies on gives its agents more power to arrest than Congress authorized. The INA lets immigration officers arrest individuals pursuant to an immigration arrest warrant or where a person is likely to escape before a warrant can be obtained. Lasch at 74-76. The detainer regulation, 8 C.F.R. 287.7(d), in contrast, either requires or permits local officers to detain a person for no reason other than to give DHS time to investigate whether the person may be removable. Lasch at 78. This is far in excess of the scope the statute allows, and the Arizona Courts interpretation of preemption doctrine suggests that this overbroad view of the statute cannot withstand a constitutional challenge. Lasch at 72-73, 80. Moreover, as the Arizona Court noted, Congress authorized local officers to arrest people on suspicion of civil immigration violations only when operating pursuant to a 287(g) program. Officers acting pursuant to a 287(g) agreement receive training in immigration law and operate, according to the statute, as adjuncts of the Secretary of Homeland Security. ICE, however, issues immigration detainers without regard for whether the local law enforcement agency has entered into a 287(g) agreement with DHS. This means that officers who receive an immigration detainer lack the training and cooperative agreement that Congress contemplated. Lasch at 78-80. Secondly, the authorizing regulation runs up against the Fourth Amendment by condoning detention without the probable cause required for an arrest. As Lasch recounts, the Arizona Court explained that SB 1070s show me your papers provision was not facially unconstitutional because the inquiry about immigration status happened during the course of an authorized, lawful detention or after a detainee has been released. Arizona v. United States, 132 S. Ct. 2492, 2509 (2012). The detainer regulation does exactly the opposite. It requires the local law enforcement agency to maintain custody of a prisoner who is not otherwise detained. Lasch at 73. That is, it kicks in only when all other justification to detain has ended. In this way, Lasch contends, it is a Fourth Amendment seizure carried out without the reasonable suspicion or probable cause that the Fourth Amendment requires. Lasch at 73-74. Both claims are intuitively rather intriguing. ICE, acting pursuant to a regulation, is either telling or asking local police to do what Congress has not allowed them to do even though"as Lasch points out"it has enacted a number of statutory provisions detailing the circumstances under which local police may help the federal government police immigration law. And in doing as ICE wants, local police deny people their liberty without the prerequisites enshrined in Fourth Amendment jurisprudence: reasonable suspicion or probable cause. ICEs new guidance on when to issue immigration detainers may limit the number of instances that irk Lasch, but theres no indication that the agency plans to cease using them. Indeed, the Secure Communities program that has become the Obama Administrations immigration policing initiative of choice dramatically amplified the importance of detainers, Lasch writes. Lasch at 62. The administrations recent announcement about the end of 287(g) comes with the promise of a greater role for Secure Communities. Thanks to for this summary.
ICE Secure Communities program automatically shares all fingerprints with ICE taken by any local law enforcement agency upon arrest, even though the charges are minimal or the defendant is found innocent.
Mar. 28, 2008 The head of Immigration and Customs Enforcement, Julie L. Myers, announced to the House Appropriations Committee that at least 304,000 immigrant criminals eligible for deportation are behind bars nationwide. The annual number of deportable immigrant inmates was expected to vary from 300,000 to 455,000, or 10 percent of the overall inmate population, for the next few years. She said DHS intended to speed the deportation of immigrants convicted of the most serious crimes by linking state prisons and county jails into federal databases that combine FBI fingerprint files with DHS immigration, border and antiterrorism records. In fiscal 2007, ICE statistics indicate 164,000 immigrant inmates were charged in removal proceedings with immigration violations to prepare the way for deportation, and 95,000 immigrants with criminal histories were deported.
Christopher N. Lasch, Enforcing the Limits of the Executive's Authority to Issue Immigration Detainers, 35 WILLIAM MITCHELL LAW REVIEW, No. 1 (2008).

Abstract: "The Executive branch uses immigration detainers to control the release of non-citizens from state prisons and local jails by transferring local,state, and federal prisoners to the custody of the Department of Homeland Security (DHS) for "removal" proceedings. This Article surveys the recent history of immigration enforcement efforts targeting so-called "criminal aliens," and then focuses more narrowly on the Executive's current detainer practices. An examination of Congress's limited statutory grant of detainer authority to federal immigration officials shows the Executive branch has exceeded that authority by implementing regulations claiming to be based on a broad general authority to detain. Acting pursuant to these regulations, DHS routinely exceeds Congress's explicit grant of authority in two ways-by lodging immigration detainers without an initiating request from local law enforcement officials, and by placing detainers on persons who have not been arrested for controlled substance offenses. The article concludes with a brief consideration of the various procedural avenues by which DHS's abusive detainer practices may be challenged."
The Washington Defenders Associations Immigration Project, "Understanding Immigration Detainers: A Basic Primer for Defense Counsel" (Spring 2010), ; The American Immigration Councils Immigration Policy Center, "Immigration Detainers: A Comprehensive Look" (Feb. 17, 2010),
Every judicial ethics advisory committee that has examined and reported on the issue has concluded that courts no affirmative obligation exists to report on undocumented immigration. Cynthia Gray, A Judges Obligation to Report Criminal Activity, JUD. CONDUCT REP., Fall 1996, at 3; see, e.g., N.Y. Advisory Comm. on Judicial Ethics, Op. 05-84 (2005) (noting that while a judge must report misconduct by another judge or attorney who has violated the Code of Judicial Conduct or Rules of Professional Responsibility, no rule has been adopted regarding litigants or witnesses); see also Ala. Judicial Inquiry Commn, Op. 86-281 (1986) (no duty to report criminal offense discovered during course of trial); Ariz. Judicial Ethics Advisory Comm., Op. 92-15 (1992) (no duty to report illegal activity); Fla. Ethics Advisory Comm., Op. 78-4 (no duty to report illegal activity); Ill. Judicial Ethics Comm., Op. 02-01 (2002) (no duty to report illegal activity, though reporting is not prohibited); Me. Ethics Advisory Comm., Op. 01-1 (2001) (no duty to report illegal activity); Utah Ethics Advisory Comm., Op. 00-3 (2000) (no duty to report illegal activity); and Wash. Ethics Advisory Comm., Op. 02-9 (2002) (no duty to report illegal activity).
ICE Issues New Detainer Form - ICE press release issuing a new detainer form and announcing the launch of a hotline for detained individuals who believe they are U.S. citizens or victims of a crime.
The All-in-One Guide to Defeating ICE Hold Requests is available on the National Immigration Project's website: