When an individual is arrested by local law enforcement agency (LEA) and is discovered to be a noncitizen, they will notify Immigration and Customs Enforcement (ICE). In cases where ICE issues a detainer, the noncitizen will remain in LEA custody and will only be relinquished into ICE custody once the LEA’s jurisdiction has ended.
How do detainers affect bail?
It is the right of all criminally accused to be given the right to post bail and be allowed to go home while awaiting trial. Unfortunately, for noncitizens who have received a detainer from ICE, the court determines this as an opposing factor when determining bail. In some cases they do not set bail at all because it is believed that the noncitizen will be less likely to appear at their criminal trial. Sometimes the prosecution will even convince the judge to set a higher bail amount than necessary when they discover that an ICE detainer has been issued.
This means that many immigrants who have detainers end up spending a lot more time in jail than inmates without detainers. They usually must remain in jail during the pre-trial period since they cannot receive bail, which would never happen for those who are U.S. citizens. In the case of United States v. Trujillo-Alvarez, it was found that ICE has no authority to detain anyone who has been granted a release order pending trial unless it is for removal purposes, according to the Bail Reform Act, 18 §U.S. Code 3142.
If a judge has set bail for a noncitizen and they pay it, they still have to wait 48 hours in LEA custody for ICE to pick them up for potential removal processing based on their detainer. If ICE does not come within the 48 hour period, the detainer expires and the noncitizen may leave.
Before even paying criminal bail, it is important that you speak with an immigration attorney about your case. These kinds of cases can be extremely complicated and require the knowledge of a lawyer who is experienced in both criminal and immigration law.
Get in touch with Musa-Obregon Law PC in New York, NY today if you or a loved one is a noncitizen who is facing criminal charges. Free evaluation offered.