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Immigration and Criminal Law

From TexICApedia

This article addresses common questions about immigration as it relates to criminal law. Here, learn about the relationship between the criminal and immigration systems and the consequences of criminal convictions on immigration cases. Understand how U.S. Immigration and Customs Enforcement (ICE) identifies immigrants in the criminal system and what to do if ICE contacts you while you are in jail.

Composed by American Gateways • Last Updated on January 23, 2023

Caution!

U.S. immigration laws, policies, and practices continue to change rapidly in 2026. Before making any decisions, consult an immigration attorney. One way to find an attorney is through the American Immigration Lawyers Association Find an Immigration Lawyer.

How are the criminal system and immigration system connected?

Although the immigration and criminal systems are two separate systems, 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.

Criminal convictions can also have serious consequences for your immigration case. They may affect your ability to avoid deportation or be released on bond while you wait for your case to be heard by an immigration judge.

For these reasons, it is essential to understand the relationship between these two separate systems.

How does ICE identify immigrants in the criminal system?

When the police arrest someone, the person's fingerprints are entered into national databases. U.S. Immigration and Customs Enforcement (ICE) reviews these databases to identify noncitizens it believes 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 telephone 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.

What should I do if ICE contacts me while I am in the local jail?

ICE often conducts telephone or in-person interviews at local jails to determine whether individuals have legal status. These interviews aim to obtain evidence to justify placing a "hold" against individuals so 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 used against you, and providing information such as your immigration status or 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.

What is an "ICE hold" or "ICE detainer"?

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 expected 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 requesting a copy of the hold is recommended.

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 expected release date. If ICE does not take you into custody during those 48 hours, you should contact your immigration attorney, family, and jail warden 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 them deportable.

If you are a citizen or have any legal status in this country, including Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), or U visa deferred action, you should talk to an immigration attorney to determine if the hold against you is valid.

Will I be released if I pay my criminal bond and I have an ICE hold?

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.

How could my criminal case affect my immigration case?

Criminal convictions—even for relatively minor crimes—can have serious immigration consequences. It is essential 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 and your ability to avoid deportation or return to the United States.

For people with legal status in this country, criminal convictions may result in the termination of their legal status and affect their 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 can last for a lifetime, and immigration law provides very few waivers or pardons for criminal conduct.

For this reason, do your best to avoid problematic convictions—not only to avoid deportation now but also to preserve eligibility to return legally in the future, such as through family- or employment-based visas.

What can I do to reduce the consequences of a criminal conviction on my immigration case?

The U.S. Supreme Court has held that noncitizens have a right to be advised about the immigration consequences of a guilty plea. In Padilla v. Kentucky, the Court held that criminal defense attorneys have a duty to advise noncitizen clients about the risk of deportation resulting from a guilty plea.

Let your criminal defense attorney know if you are concerned about how a conviction may affect your immigration case so that they know 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.

What happens after I am released from jail and transferred to ICE custody?

Once you are transferred to ICE custody, you will likely be taken to an ICE field office for initial processing.

If you have a prior final deportation order in your case, as opposed to a voluntary departure or return, that order may be reinstated. If you fear returning to your home country, tell immigration officials and speak with an immigration attorney about whether you may qualify for protection from removal.

If you do not have a prior deportation order, ICE may initiate removal proceedings, and you will most likely be transferred to an immigration detention center.

Once you are at the detention center, you may be able to request release on bond, unless your criminal or immigration history makes you ineligible for bond. Unlike criminal bonds, immigration bonds generally must be paid in full.

If bond is denied in your case, you may be required to continue your immigration case while detained.

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