Immigration and Criminal Law: Answers to Common Questions
This article contains answers to common questions about immigration in regards to criminal law. This article was written by American Gateways.
Although the immigration and criminal systems are two separate entities, they are closely related. This is because approximately 70 percent of ICE arrests occur after an immigrant is released from a local jail or state prison. Moreover, criminal convictions can have serious consequences for your immigration case and may affect your ability to avoid deportation or be released on bond while you are waiting for your case to be heard by an immigration judge. For these reasons, it is very important to understand the relationship between these two separate systems.
When police arrest someone, the person’s fingerprints are entered into national databases. ICE reviews these databases to identify non-citizens whom they believe are in the country illegally or whose legal status could be terminated based on the criminal charges against them. If ICE has evidence that a person does not have valid legal status in the country, it will place a “hold” requesting that the jail hold the person for 48 hours so that ICE has time to take the person into custody. ICE “holds” (also known as “detainers”) are explained in more detail below.
If you have never had any contact with immigration officials, it is possible that ICE may not be able to use your fingerprints to determine whether you have legal status in this country. In this case, ICE will often conduct telephonic or in-person interviews at the jail to determine if you have valid legal status in this country. You have the right to remain silent during these interviews.
As stated previously, ICE often conducts telephonic or in-person interviews at local jails to determine if individuals have legal status or not. The purpose of these interviews is to obtain evidence to justify placing a “hold” against individuals so that ICE may take them into custody and start removal proceedings.
You have the right to remain silent if ICE contacts you in jail or any other location. Anything you say to ICE could be against you and providing information such as your immigration status or your country of origin could affect your immigration case. For this reason, it is recommended that you remain silent and do not sign any document from ICE.
An ICE “hold” (also called a “detainer”) is a request from ICE asking that the jail keep you in custody for 48 hours beyond your normal release date so that ICE has time to take you into custody and initiate removal proceedings. You have the right to know if ICE has placed a hold on you, and it is recommended that you request a copy of the hold.
It is important to remember that ICE only has 48 hours to take you into custody, and it is illegal for the jail to detain you for more than 48 hours after your normal date of release. If ICE does not take you into custody during that 48-hour period, you should contact your immigration attorney, family, and the warden of the jail to demand your immediate release.
It is also important to note that ICE may only place a hold if it has evidence that a person does not have lawful status in the country or that the person’s criminal history makes him or her deportable. If you are a citizen or have any legal status in this country (including DACA, TPS, and U-visa deferred action) you should talk to an immigration attorney to determine if the hold against you is valid.
If you have an ICE hold, you will be transferred to ICE for deportation proceedings after you are released from jail. This applies even if you pay your criminal bond. You will be immediately transferred to ICE, and your criminal case will remain pending. In some cases, however, the criminal prosecutor may file a warrant to have you returned to local custody to finish the criminal case. This usually only happens in felony cases.
If you are undocumented, an ICE hold applies even if you are found innocent and cleared of all criminal charges. Once ICE has determined that you do not have legal status, it may take you into custody to initiate removal proceedings.
Criminal convictions—even for relatively minor crimes—can have serious immigration consequences, and it is important to understand these consequences before signing a plea bargain or going to trial. For people without lawful immigration status, a conviction may affect your ability to be released on bond while your immigration case is pending as well as your ability to avoid deportation or to return to the United States in the future.
For people who have legal status in this country, criminal convictions may result in the termination of your legal status and affect your ability to return to the United States legally in the future. Even if the conviction does not make you deportable, a conviction may still affect your ability to travel abroad, become a citizen, or qualify for bond while your immigration case is pending before the judge.
It is important to understand that the immigration consequences that result from a criminal conviction last for a lifetime, and immigration law provides very few waivers or pardons for criminal conduct. For this reason, it is important to do your best to avoid problematic convictions not only to avoid deportation now, but also to preserve eligibility to return legally in the future (for example, through family or work visas).
The Supreme Court has declared that non-citizens have the right to know the immigration consequences of a criminal conviction before signing a plea bargain or going to trial. It is the duty of your criminal defense attorney to consult with an experienced immigration attorney to provide you with this information. It is not enough for your criminal defense attorney to simply warn you that a conviction could affect your immigration status—you should be informed of the specific consequences of a particular conviction.
It is important that you let your criminal defense attorney know if you are concerned about how a conviction may affect your immigration case, so that he or she is aware that this is a priority. In some cases, it may be possible for your attorney to negotiate with the criminal prosecutor to avoid, or at least reduce, the negative consequences of a criminal conviction on your immigration case.
Once you are transferred to ICE custody, you will likely be taken to an ICE field office for initial processing. If you have prior final deportation order in your case (versus a voluntary departure or return), that order will be “reinstated” and you will be automatically deported without seeing a judge. The only exception is if you express credible fear of returning to your home country, and you request asylum.
If you do not have a prior deportation, ICE will initiate removal proceedings, and you will most likely be transferred to an immigration detention center. Once you are at the detention center, you may request that the immigration judge release you on bond (unless your criminal history makes you ineligible for bond) and continue proceedings outside of detention. Unlike criminal bonds, immigration bonds must be paid in full.
If bond is denied in your case, you will be required to continue your case while detained. More information about possible defense against deportation is available in the section titled “Guide for Detained Immigrants: Deportation Defenses.”