When someone who is in the United States without proper documentation(whether they entered the country lawfully but overstayed their visa or entered unlawfully at the outset) is arrested and charged with a crime, ICE (Immigrations, Custom and Enforcement) may opt to file a ¿detainer¿ against them while in jail.
The detainer is a document that essentially tells a jail that the person named is not to be released either on bond or when they finish their sentence. Rather, the person continues to be held pending physical transfer to ICE custody. Once transferred to ICE custody, removal (deportation) proceedings likely will be initiated.
ICE may or may not choose to take custody of the person before the criminal case has concluded. If they take physical custody of the person before trial, they may move him to a facility under ICE rather than the state¿s jurisdiction. You should consider that if transferred to ICE custody before trial and later convicted, your cousin will not receive jail time credit against his sentence for the time spent solely in ICE custody.
If ICE does not take physical custody of your cousin before the end of the criminal case and your cousin ultimately is convicted, he may have to serve any sentence imposed in the criminal case before being be transferred to ICE custody for removal proceedings.
If you use a bondsman, you will pay a premium amount of 10 to 20% which you will not get back. If you make the bond and ICE has a valid detainer, you are putting the money up for nothing since your cousin won¿t be released from jail, but merely kept in jail on the ICE detainer or transferred to ICE custody.
All that being said, ICE is not perfect. Sometimes they don¿t file the required documentary support along with the detainer, which could provide a defense to immigration proceedings. If your cousin made bond, was transferred to ICE custody and the detainer was found to be invalid, your cousin could remain free on bond throughout the criminal case.
I recommend you contact an immigration attorney in your area who can find out if a detainer already has, or in his or her experience, is likely to be lodged against your cousin. An immigration attorney also can tell you whether your cousin is eligible for bond in an immigration proceeding and provide an individualized opinion on whether posting a bond in the criminal case makes sense financially.
-- Jeralyn Merritt
