ICE Holds and Criminal Charges: What Non-Citizens Need to Know About Custody and Release
For non-citizens facing criminal charges in the U.S., what happens after an arrest isn’t always straightforward. Even if your criminal case gets resolved quickly—or you’re granted release by the court—you could still end up in immigration custody due to what's known as an ICE hold.
This situation is more common than many people realize. You think you're about to be released after resolving your criminal case—then you're transferred directly into immigration detention instead. At Bernard Law, we’ve seen how devastating this can be for individuals and their families. In some cases, we've even helped clients avoid ICE custody through strategic legal decisions during the criminal process.
This blog will walk you through what ICE holds are, how they work, and what legal strategies may be available to reduce the risk of immigration detention—especially for non-citizens with past convictions or immigration complications.
What Is an ICE Hold?
An ICE hold, also known as an immigration detainer, is a request made by U.S. Immigration and Customs Enforcement (ICE) to a local jail or law enforcement agency. When someone who is not a U.S. citizen is arrested and booked into custody for a criminal matter, ICE may place a detainer on that person if they suspect the individual is removable (i.e., deportable) under immigration law.
The detainer requests that the jail notify ICE before releasing the individual and hold them for up to 48 hours beyond their scheduled release, giving ICE time to take custody. ICE holds can be issued for undocumented immigrants, visa holders, lawful permanent residents, DACA recipients, or anyone whose immigration status is in question—especially if there are past criminal convictions or prior immigration violations on record.
The Problem with ICE Holds
ICE holds are not criminal warrants. They don’t require judicial approval, and local law enforcement agencies are not legally obligated to honor them—although many do. That means you could resolve your criminal charges in court and still be transferred directly to ICE custody afterward, without even being allowed to return home.
This creates a huge problem for non-citizens. Instead of going home after a bond hearing, court dismissal, or a plea deal, you may find yourself facing deportation proceedings. This is especially true if you’ve had past immigration issues or convictions that raise red flags in ICE’s system.
Can You Be Released on Your Criminal Case and Still Be Detained by ICE?
Yes—and this is the key point. Criminal release does not equal freedom for non-citizens. Here’s how it often plays out:
You're arrested and booked on a criminal charge.
The judge sets bond or you enter a plea that results in time served.
You’re scheduled to be released.
But ICE has filed a detainer—and instead of going home, you’re picked up and taken to an immigration detention center.
This means even a favorable outcome in your criminal case can lead to detention or deportation if immigration consequences aren't carefully considered from the start.
What Can You Do to Avoid an ICE Hold?
There’s no guaranteed way to avoid an ICE detainer, but there are steps that can reduce the risk—especially if you act fast and have the right legal support.
Resolve Your Case Quickly
The longer you remain in jail, the more likely ICE is to detect your arrest and issue a hold. An experienced criminal defense attorney can help you pursue early case resolution—through a dismissal, bond negotiation, or fast-tracked plea—that gets you out before ICE gets involved.
Consider the Immigration Consequences Before Accepting a Plea
Not all plea deals are created equal. Some convictions (even misdemeanors) can lead to automatic deportation or bar you from future immigration relief. A smart plea strategy considers both the criminal outcome and your immigration status.
Work with a Criminal Defense Attorney Who Understands Immigration Risks
Even if your Chicago criminal defense lawyer isn’t an immigration attorney, they should understand how charges, convictions, and custody status affect immigration enforcement. At Bernard Law, we regularly help non-citizens make informed decisions with their immigration exposure in mind.
Be Honest About Your Immigration Status
Your attorney can’t protect you if they don’t know the full picture. Be honest about your status, past charges, and any history with ICE or immigration court. This helps your lawyer build a strategy that takes all risks into account.
Real-World Example: Preventing an ICE Hold with a Smart Plea
Bernard Law recently represented a non-citizen client who was in custody for a domestic violence charge. The concern wasn’t just the current case—it was that he had a prior domestic violence conviction, which could make him a priority for ICE enforcement if flagged while in jail. We knew that if he remained in custody too long, ICE might place a hold on him and initiate removal proceedings.
So what did we do? We worked quickly to negotiate a plea agreement on the new case that allowed him to resolve the charge and get out of custody fast—before ICE had a chance to intervene. While we typically explore every option before recommending a plea, in this case, the plea prevented a far more serious immigration consequence: being transferred to ICE detention and possibly deported. This strategy worked because we understood how the timing of custody and prior convictions intersect with ICE’s enforcement priorities.
What If ICE Already Placed a Hold on You?
If you or a loved one is already facing an ICE detainer, all hope is not lost—but you need to act fast. A defense attorney can still:
Negotiate for early release before ICE takes custody
Work with immigration counsel to prepare bond motions or defensive asylum claims
Assist with post-conviction relief if a past conviction triggered the hold
Time is critical, especially once immigration proceedings are underway. The sooner you involve a defense lawyer, the more options you may have.
At Bernard Law, we understand these situations aren’t just about charges or court appearances—they’re about your future, your family, and your right to stay in the United States. Whether you’re facing charges for domestic violence, gun possession, or DUI, we’ll help you make smart legal decisions that take your immigration risks into account. Contact us today for a confidential consultation.