What it means:

When the non-citizen was taken into local custody, his or her fingerprints were run through some federal databases, and if ICE believes that the person may be subject to removal, they file a “detainer” with the local jail using Form I-247 (the form changed in June 2011, but the old form is still used regularly). The detainer is commonly referred to as an “ICE hold” or an “immigration hold”, and what it does is request (not require) that the jail basically do two things: (1) notify ICE in advance of when they plan to release the person, and (2) hold the person for an additional 48 hours – not counting weekends and holidays – beyond that release time so that ICE has an opportunity to take custody of the person.

An ICE hold is not an order of removal. It does not mean that the person will be removed as soon as you pay the local bond and ICE takes custody. An ICE hold normally just means that removal proceedings can begin – for many (but not all) this includes the right to be released from ICE custody, to see an immigration judge, and to apply for relief from removal. Some aliens may be released by ICE on their own recognizance or on electronic monitoring, but others may have to pay a bond. You should know that immigration bonds can be more expensive than local bonds (the minimum amount is $1,500.00), they have to be paid in full (there are no “10% bonds”), and they have to be paid by someone who is a U.S. citizen or permanent resident.

What you can do:

For a variety of reasons, jail officers will sometimes tell you that you cannot post a local bond because of an ICE hold, or that you should not post a bond because of an ICE hold. They usually will not explicitly say that you can’t post a bond – they will normally avoid it by asking “why would you pay the bond? they are not going to be released anyway.”

This may leave you with the impression that they will not accept a bond, even if they have not actually said that they wouldn’t. The truth is that under normal circumstances, an immigration hold does not mean that you cannot post a local bond – it means that once the local bond is paid, ICE will be contacted, and the 48 hour period will begin, in the same way it would begin if the person was going to be released because they had a trial and won, or lost a trial and finished their sentence, or for any other reason. In many cases (but not all), paying a local bond will not change what happens when the person goes into ICE custody (because the local case will still be pending). If your intention is to pay a local bond, then an ICE hold alone should not prevent you from doing so.

What should be done:

This depends on a number of particular factors, including the person’s immigration and criminal history, the charge for which they were arrested, and the ICE office that would take custody of the person. It may not always be a good thing for someone to go into ICE custody more quickly. A person may have a prior criminal conviction that makes them ineligible for an immigration bond, or an old deportation order that would prevent them from seeing an immigration judge – the time in local custody could be used to reopen those old cases so that the person goes into ICE custody in a better position.

It is very important to consult with an immigration attorney before paying a local bond, because once that local bond is paid, ICE will probably take custody of the person within a few days, and removal proceedings could begin. In many cases, however, this is what would have happened anyway, and the local charge may not affect it. In those cases, it may be best for the person to go into ICE custody promptly so that they can get a separate bond from ICE and apply for any relief from removal that they might have.

What the Obama Administration HAS announced:

The President is forming a high-level group that will:
- review the approximately 300,000 cases currently pending in removal proceedings to identify cases that should be considered “low priority”
- formulate rules for federal agents to follow in deciding when to start removal proceedings
- give direction for cases where final orders of removal have already been issued.

Cases that are considered to be “low priority” may be administratively closed or simply not acted on. This means “low priority” cases will not receive any status. Some “low priority” cases will be allowed to apply for an “employment authorization document” (EAD), which can be used to obtain a Social Security number for work, and (in some states) a driver’s license – but an EAD is TEMPORARY, and it does NOT provide any kind of immigration status.

In the future, the criteria for deciding how to handle different types of cases will be explained, but right now, all that has been announced is that the government will review existing cases and close some in order to focus on others. The government will be doing this – at this time, there is nothing you can do to initiate or advance the process.

What the Obama Administration HAS NOT announced:

There has not been a grant of amnesty of any kind, and there has not been any new immigration benefit created. There is no status to apply for, there is no fee that can be paid, there is no form that can be completed – anybody telling you otherwise may be mistaken or trying to scam you.

People who are deemed to merit “low priority” treatment from immigration authorities could avoid removal from the US, but they would not be eligible for any temporary or permanent immigration status.

The criteria by which people would be considered “low priority” have not been announced, and there has been no guarantee that people meeting any set of criteria would be automatically given any kind of benefit. This is why it could be a serious risk for anybody to attempt to put themselves into removal proceedings in hopes of getting a benefit that the government has not defined.

Do not let yourself fall victim to fraud.

This post is available for download as a PDF flyer in English and Spanish here.