Dec 30

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Are You A Non-Citizen Who Has Been Arrested?

If so, you may be interested to find out how you will be affected under the new policy just put into place by Immigration and Customs Enforcement (“ICE”) on December 21, 2012.

YOU WILL NOT be transferred from local police custody to federal immigration custody if you do not have a prior felony or misdemeanor conviction and are arrested for any of the following common offenses:

  • Possession of controlled substance (misdemeanor)
  • Under the influence of controlled substance
  • Drunk in public

    ICE’s Director, John Morton, who wrote the new policy.

  • Minor in possession of alcohol
  • Burglary
  • Trespassing
  • Theft – grand and petty
  • Auto theft (misdemeanor)
  • Embezzlement
  • Possession or use of fake driver’s license
  • Resisting arrest
  • Reckless driving
  • Driving on suspended license
  • Lewd conduct in public
  • Violating restraining order
  • Stalking (misdemeanor)
  • Loitering
  • Disturbing the peace
  • Possession of burglar tools (misdemeanor)
  • Receiving stolen property (misdemeanor)

While this may seem like good news, the policy is actually the same news that was given by ICE’s Director back in June 2010, just in different language.  Let’s examine why this “new policy” is really just the same policy:

  • A lot of the offenses listed above are called “wobblers” which can be charged as felonies or misdemeanors.  Although as a misdemeanor, ICE would not place a hold on you, as a felony they would!  The majority of wobblers are charged by the D.A. as felonies due to the type of controlled substance, value or property, or suspects criminal record.
  • The D.A.’s Office is notorious for overcharging suspects.  This means, it is unlikely you will just be charged with just one of the offenses that would make you safe.  For example, you will likely be charged with Reckless Driving AND DUI – which would give ICE the authority to place a hold on you.
  • ICE is only looking at the complaint or charging document when making a decision on who to detain.  Thus, they just see the words “burglary” or “resisting arrest” with no knowledge of whether the crime alleged involved violence, threats or assault.  If they decide that it did, guess what: they can detain you!
  • Policy does not apply to the immigration agents at the border, called CBP.  This is significant because many immigrants get detained at the border or paroled in due to an old conviction or arrest that had already been resolved and dealt with by the justice system.
  • ICE can still maintain a hold on you even if you are not convicted!  This means, that even after justice is served and you have your day in court, you will not be released.  Rather, ICE can ask the local jail to hold you for 48 hours more so they can transfer  you to their custody.

Note: This policy of placing a hold on you after arrest, not after conviction, goes against ICE’s own priority that states: ICE’s finite enforcement resources are dedicated, to the greatest extent possible, to individuals whose removal promotes public safety, national security, border security, and the integrity of the immigration system.  

What is the Good News?

Since it is always important to end on a good note, let’s talk about the positive aspect of the “new policy”.  The new policy will bring greater transparency to ICE holds or immigration detainers by developing a new form by which the ICE officer must specify exactly which ground the individual is being detained.

Permanent link to this article: http://blog.weismanlawyers.com/are-you-an-immigrant-who-has-been-arrested/


  1. Ross

    How much power does the DA have in a certain municipality to prosecute heavily or be lenient? And, is this a federal statue or a state/city wide? i.e. will California throw the book at someone while Rhode Island will fine them $15?

    1. Kara R. Weisman

      Hi Ross,

      Thank you for you thoughtful questions.

      The DA has ALL of power to prosecute heavily or be lenient. Some people think that the victim has the power and commonly say – “Did she or he press charges?” But, the victim does not decide whether charges are brought by the DA – they are simply a witness to the crime. In general, each DA’s office charges crimes according to the community’s values as the charges will ultimately be decided by a cross-section of that community.

      This is not a federal or a state/city statute. Rather, it is a federal policy, created by an entity called Immigration and Customs Enforcement (“ICE”). ICE is under the control of the Department of Homeland Security. The Director, Mr. Morton, often comes out with these policy memos that are treated like internal laws within ICE- which all of the agents are expected to follow.

      However, even though ICE will place holds on non-citizens in accordance with this policy, you are right in that each city or county jail may treat the hold request differently depending on the expense and their immigration law views. Please read: http://blog.weismanlawyers.com/kamala-harriss-ground-breaking-advisory-opinion/
      for more information.

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