Criminal Defense of Immigrants

(B)  Immigration Holds.  Before the immigration authorities can lodge an immigration hold against a defendant, the defendant must be in criminal custody.  If the defendant avoids a custodial sentence entirely, the defendant is not in custody and the immigration authorities have no opportunity to place a hold.  See § 6.19, supra.  Some sentences to custody are so short, or place the defendant in a custodial setting in which the immigration authorities have no opportunity to notice the presence or background of the defendant, that no immigration hold is in fact placed.  For example, in some jurisdictions, the immigration authorities do not check the immigration status of persons in work furlough programs, school furlough programs, drug treatment programs, sheriff’s work programs, probationary sentences without custody, weekend custody sentences, other very short custodial sentences, and the like.  In these circumstances, no immigration hold would be placed against the defendant.