ICE Holds-To post or not to post bail?

To Post or Not to Post Bail for a Non-Citizen Client: Strategic Considerations

Introduction: In most criminal cases, getting your client out of jail pending trial is a top priority. But when your client is a non-U.S. citizen, especially if undocumented or with certain prior convictions, posting bail or securing release can trigger an entirely different consequence: transfer to immigration (ICE) custody. Florida’s local law enforcement agencies cooperate closely with ICE pursuant to SB 168 (2019), meaning ICE is often alerted to non-citizens in custody. Thus, the well-intended act of freeing your client from county jail on bond could result in them being picked up by ICE at the jail’s door. This article examines the factors a Florida defense attorney must weigh when advising a non-citizen client about posting bail. It also covers how to mitigate risks if the client is released, and how to handle situations where remaining in custody briefly might actually benefit the client’s long-term immigration interests.

Understanding ICE Detainers and Jail Cooperation: An ICE detainer (Form I-247) is a request by Immigration and Customs Enforcement asking the local jail to hold a person for up to 48 hours after they would otherwise be released, so that ICE can take custody. Under current Florida law, counties generally honor these detainers. A detainer typically indicates ICE has some reason to believe the individual is deportable (e.g., a database hit or prior removal). Key points:

• If your client has an ICE detainer, it means that even if you post criminal bail, the jail will not release the client to the street – they will hold them for ICE (or ICE may even preemptively pick them up before the case resolves).
• How do you know if there’s a detainer? In Florida, many jail inmate lookup systems will note “ICE hold” or similar. You can also call the jail or have family inquire. If a client has foreign place of birth on record and no proof of citizenship, some jails almost automatically fax ICE. In practice, counties like Miami-Dade, Broward, Hillsborough, etc., will have ICE officers or 287(g)-designated officers screening bookings. Assume there is or will be a detainer if the client is undocumented or has prior deportations, unless you have information to the contrary.
• Even without a detainer, ICE can still arrest someone upon release if they are monitoring the case. (ICE often gets lists of foreign-born inmates or those who self-report foreign birth during booking.) The ILRC practice advisory explicitly warns that when clients subject to ICE interest are released on recognizance or bail, they “may be transferred to ICE instead of actually being released”.

When Posting Bail Helps vs. Hurts:

• Scenarios favoring release: If your client has lawful status and minimal risk factors (e.g., a green card holder with a single minor charge, no prior removals or outstanding immigration warrants), posting bail might carry little ICE risk. Also, if being out will meaningfully help the criminal case (gather evidence, attend treatment, avoid pressure to plead due to incarceration), that’s a big plus. Some non-citizen clients will prefer to be out even if ICE custody is a possibility, because they’d rather fight their immigration case than sit in criminal jail.
• Scenarios favoring not posting bail (at least immediately): If the client is undocumented with no relief and the criminal charge is relatively small, oddly, staying in criminal custody until disposition might avoid an early hand-off to ICE. For example, say your client is undocumented and picked up for a minor misdemeanor. If you post bail right away, ICE could take them, and they might be deported before the criminal case even resolves (ICE in some cases does remove people with pending charges if prosecutors don’t object strongly). On the other hand, if they stay in jail, you might be able to dispose of the case quickly (maybe even get time-served) without ICE interference, and then at sentencing the client might go into ICE custody for removal – but by then, maybe there’s a plan (like voluntary departure or coordination with an immigration attorney). Another scenario: your client has a strong defense to the criminal charge and would likely beat it at trial, but if released, ICE will deport them and they’ll never get their day in court. Keeping them in custody through trial preserves their ability to win acquittal and avoid a removal order.
• Safety valve – checking with immigration counsel: Before making the decision, it’s wise to consult an immigration attorney about the client’s immigration posture. Can the client get an immigration bond from ICE/immigration court if detained? If yes (e.g., no serious convictions, eligible for bond), then perhaps posting criminal bail is fine – the client might just shift to ICE custody and then you help connect them to an immigration bond lawyer. But if the immigration lawyer says “actually, ICE will likely mandatory detain this person (no bond) because of a prior removals or a certain conviction,” then you know that if ICE grabs them, they could be stuck in ICE jail for months or longer. In such cases, it might be better to have them remain in county jail where at least they can get credit for time served on the criminal case or participate in diversion programs.

Communicating with the Client and Family: This is often the hardest part – explaining to family eager to bail out their loved one that paying bail might not bring them home. Be very clear:

• “If we pay this bond, there is a high likelihood immigration will pick him up. He will not be released; he’ll be taken to a detention center (which could be out of county or even out of state).”
• Explain pros and cons: “In ICE detention, he could seek release on an immigration bond, but that’s a separate process and not guaranteed. If he stays here, I might be able to resolve the case in a way that helps him in immigration court, or even beat the case.”
• Document that the client was advised about this. Much like Padilla warnings, you don’t want a client later saying “my lawyer told me to stay in jail, I didn’t understand why.” Make sure they do understand the rationale and, importantly, that the decision is the client’s. Some clients will say “I’ll take the risk, I want out,” and that’s their choice, but informed choice.

Strategies If the Client Stays in Criminal Custody: Suppose you and the client decide not to post bail immediately to avoid ICE. What can you do to advance both the criminal and immigration interests while they’re in custody?

• Speed up the criminal case if beneficial: If the case is one where a quick plea to an immigration-safe outcome is possible, do it. For instance, maybe your client is charged with felony possession of stolen property (a CIMT). The prosecutor offers misdemeanor petty theft with time served. However, petty theft (2 or more) is a CIMT too – but maybe one CIMT with no jail is okay. If the client just wants out, that plea would normally free them – but here if freed they’d go to ICE. Instead, negotiate that plea and sentence such that ICE’s involvement can be managed. Perhaps coordinate with immigration counsel to be ready to file a bond motion or request an ICE stay of removal once the plea is done.
• Or, slow down the case if time is needed: Conversely, sometimes keeping the client in criminal custody longer is beneficial. For example, your client may have a form of relief in immigration court that will vest in a few months (say, they will have been here 10 years soon and could seek cancellation of removal for non-LPRs). By stalling the criminal case slightly (continuances), you keep them in a holding pattern until they hit that milestone, after which even if ICE picks them up, they have a relief to apply for. This is sophisticated strategy requiring coordination with immigration experts and maybe the client’s family (to prepare applications, etc.).

Strategies If the Client Is Released and Faces ICE: Sometimes, despite caution, a client ends up getting out or must be released (e.g., court ROR’d them over your objection!). Be prepared:

• Tell the client not to panic. If ICE agents approach, they should not resist or run (that can create new criminal charges), but they also have rights. Advise them not to sign anything given by ICE (especially not a “stipulated removal” or voluntary departure without consulting an attorney). Provide them with contact info for an immigration attorney or nonprofit.

• If you anticipate ICE involvement, have a family member or attorney ready to attend the jail on release day to observe whether ICE is there. In some locales, ICE picks people up from jail at odd hours (early morning). Knowing when they’ll be released can help – sometimes lawyers arrange to surrender a client to ICE directly at an ICE office at a scheduled time, instead of an ambush at the jail. This can be safer and more dignified.

• If the client is on probation or pretrial release, warn them that checking in could alert ICE. Florida doesn’t have formal sanctuary policies preventing probation from cooperating. So, if ICE didn’t catch them at jail, they might find them at a mandatory check-in. The client might consider moving in with family out of county (update the court of address) if worried about local ICE.

Special Situations:

• Clients with U.S. Citizenship Claims: Sometimes a client tells you they’re a non-citizen, but further investigation reveals they might have a citizenship claim (e.g., derived citizenship through a parent). Always ask about parents’ citizenship and client’s entry date. If there’s any chance the client is a U.S. citizen (and just doesn’t have proof readily), you definitely want them released – ICE cannot lawfully detain or deport a U.S. citizen. In such cases, work quickly with an immigration lawyer to prove citizenship if ICE mistakenly holds them.

• Juveniles: Juvenile delinquency adjudications aren’t “convictions” for immigration, but ICE can still detain a non-citizen youth if they’re undocumented (usually on age-out from juvenile custody). Florida’s cooperation law doesn’t directly address juvenile detention centers the same way. If you represent a non-citizen juvenile, coordinate with dependency or immigration counsel well before their 18th birthday release – Special Immigrant Juvenile Status could be in play, and avoiding transfer to adult ICE custody is paramount.

• Bail modification if circumstances change: If initially the client stays in jail to avoid ICE, but later conditions change (say the client becomes eligible for immigration bond or relief), you can always move to reduce bail or convert to non-monetary release at that point. Judges might be sympathetic if you explain (perhaps in chambers or under seal) that “we deliberately did not bond out because of an immigration hold, but now we have X plan, so we are requesting ROR.”

Coordination with Immigration Proceedings: Occasionally, a client might already be in removal proceedings or have an existing deportation order. Understand how criminal custody interacts:

• If your client has a prior removal order, ICE may execute it upon custody transfer, meaning they could be removed very fast (in days). That’s a scenario where keeping them in criminal custody until something can be done about that order (e.g., a motion to reopen) is important. An immigration attorney can file emergency stays of removal if needed when you anticipate ICE pickup.

• If the client is fighting an immigration case, being in ICE detention might allow them to get a faster hearing, but being in criminal custody can sometimes delay ICE from taking action until the criminal matter concludes. It’s a balance.

Conclusion: Deciding whether to post bail for a non-citizen client in Florida is a nuanced, high-stakes decision. Always evaluate the presence of an ICE detainer and the client’s immigration status before posting bond. Discuss the risks candidly with the client and family. When in doubt, consult an immigration expert. As a rule of thumb, if a client will be subject to mandatory ICE detention with no chance of release, keeping them in criminal custody to resolve the case first may be wise – especially if a quick resolution can spare them a removal or give them a fighting chance in immigration court. On the other hand, if there’s any viable path to the client being released from ICE custody (or avoiding it altogether), then pursue normal bail – freedom is still generally better for case outcomes and the client’s well-being. Each case requires an individualized analysis, and as the defense attorney, you are the one best positioned to coordinate between the criminal and immigration pieces. By thinking a step ahead, you can avoid the cruel result of winning your client’s release from jail only to see them placed in an ICE van in the parking lot.