A conviction leading to a prison sentence poses a considerable challenge, particularly for immigrants to the United States. Such criminal offenses can carry even more severe ramifications, as a clear violation of state and federal laws may jeopardize an individual’s ability to remain in the country after release. This is also contingent on whether release is granted before U.S. Immigration and Customs Enforcement (ICE) issues an immigration detainer. Please continue reading as we explore how an immigration detainer works and how an experienced New Jersey Immigration Lawyer can help contest one.
How Does an Immigration Detainer Work?
An immigration hold, also referred to as an immigration detainer, is an official request from ICE that requests a local or state law enforcement agency to hold someone in custody, even after they would have otherwise been released from criminal proceedings, for potential deportation.
Upon arrest, an individual’s fingerprints are transmitted to both the FBI and ICE. Should ICE determine if an individual is subject to removal, it may issue a detainer to the correctional facility. This detainer essentially requests that the individual remain in custody for an additional period, typically 48 hours, extending beyond their scheduled release.
This request provides the U.S. Department of Homeland Security (DHS) with sufficient time to plan for and assume custody of an immigrant. The impetus for such actions arises when DHS possesses probable cause to believe that the immigrant is subject to removal from the country. This typically occurs if the immigrant has been convicted of a crime that poses a demonstrable safety or national security threat, such as burglary, kidnapping, homicide, sexual assault, or drug trafficking.
Is Local Law Enforcement Obligated to Enforce an Immigration Hold?
It’s important to reiterate that an immigration detainer is an administrative tool used by ICE to apprehend individuals who are subject to deportation after they are released from criminal custody. However, they are not necessarily a judicial warrant. Therefore, local, state, or federal law enforcement agencies are not legally required to execute this order. Instead, they have the discretion to decide whether an immigration detainer alone justifies continued detention, and prolonged confinement beyond an imposed sentence ultimately violates an individual’s constitutional rights.
If you have been subject to an immigration detainer issued by ICE, but have been released by the detention facility, continued caution is essential. ICE may still initiate procedures ot the you into custody within the public sphere. Regretfully, the methods employed in such sections may be more severe than if custody had been established within a secure, supervised, and private setting.
For more information, please don’t hesitate to contact a determined attorney at the Law Offices of Aditya Surti, LLC.