ICE Holds and Bail Bonds: What You Need to Know About Recent Law Changes

With recent changes in immigration enforcement, there has been a sharp increase in ICE holds placed on individuals arrested for a criminal offense. This has caused a lot of confusion for families, especially cosigners who post bail for their loved ones, only to find out that the defendant is not actually released.

If you’re considering bailing someone out of jail, it’s crucial to understand how ICE holds work and why bail money is non-refundable, even if the defendant is transferred into immigration custody.

Understanding ICE Holds

An ICE hold (also known as an immigration detainer) is placed by U.S. Immigration and Customs Enforcement (ICE) on individuals suspected of being in the country unlawfully. This means that even if someone posts bail for a criminal charge, they may not be released from jail if ICE has placed a hold on them. Instead, they could be transferred to federal immigration custody at any time, even if their criminal case is still pending.

Key Points About ICE Holds and Bail

1. Bail for Criminal Charges Does NOT Prevent ICE Detention
   • When a person is arrested for a criminal offense, they can usually post bail to be released from county jail while awaiting trial.
   • However, if ICE has placed a hold, they will not be released, even if bail is posted. Instead, they will be transferred to federal immigration detention, regardless of whether their criminal case has been resolved or is still pending.
2. Bail Money is NOT Refundable
   • If a cosigner posts bail for a defendant who then gets transferred to ICE, they do not get their money back.
   • Bail is paid to secure release from criminal custody, but it does not guarantee release from federal immigration detention.
3. Criminal Jail and Federal Immigration Jail Are Two Different Systems
   • Local or state county jails hold individuals charged with criminal offenses under state laws.
   • ICE detention centers are federal facilities that enforce immigration laws, including violations under 8 U.S. Code § 1325, which makes unlawful entry into the U.S. a criminal offense.
   • Bail posted for criminal charges does NOT count toward any federal immigration bond.
4. Immigration Bonds Are Separate and Require a Different Process
   • If a defendant is transferred to ICE custody, their family may need to pay for a separate federal immigration bond to secure their release.
   • Immigration bonds are handled through ICE or an immigration judge, not through a bail bond company.

What Should Cosigners Do?

If you’re considering posting bail for a loved one who may have an ICE hold, it’s important to understand the process.

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