How Does Having an ICE Hold Affect One in Prison?

The reader of this article may have a friend or family member in prison with a detainer, or “hold,” asserted by Immigration and Customs Enforcement (ICE).  

If U.S. Immigration and Customs Enforcement (ICE) officials believe that a person in a California Department of Corrections and Rehabilitation (CDCR) prison can be put through removal proceedings, ICE sends a detainer or “immigration hold” (“hold de migración”) to the CDCR. 8 C.F.R. § 287.7(a), (c).  The detainer asks the CDCR to inform ICE when the person’s term is about to end. Id.  

Neither the Board of Immigration Appeals (BIA) nor the courts will review an ICE decision to place a hold. See Campos v. I.N.S. (9th Cir. 1995) 62 F.3d 311, 314 (habeas corpus action cannot be used to challenge ICE detainer against a person in CDCR custody).

When ICE learns that a person who might not be a U.S. citizen is in CDCR custody, ICE may send an agent to review the person’s CDCR Central File (which contains information about their background, criminal history, and current conviction and sentence) and to interview the person.  The purpose of the file review and interview is to determine whether or not the person is a U.S. citizen, whether there may be grounds for removing the person from the U.S., and whether the person is already subject to a removal order, can be put through a stream-lined expedited removal proceeding or is entitled to a standard removal proceeding in front of an immigration judge (IJ).

Before an ICE interview, the CDCR must provide the person with a written consent form that explains the purpose of the interview, that the interview is voluntary, and that the person may refuse to be interviewed, or may choose to be interviewed only with their attorney present.  The written consent form must be made available in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean. 

Government Code § 7284.10(a); CDCR, Memorandum Re: Implementation of California Senate Bill 54, “The California Values Act” (Jan. 2, 2018).

Receiving legal advice can help a person make an informed decision about whether to speak to an ICE agent. Unfortunately, except in a few situations, a person who is facing removal proceedings does not have a right to the appointment of a lawyer at government expense.

If a person does speak to the ICE agent, they should not assume that the information the agent conveys is complete and accurate. 

Moreover, any information the person provides may make it more difficult or impossible for them to defend against removal. People do not have the right in immigration proceedings to have their statements to government officials suppressed if they are not warned that their statements may be used against them. See Samayoa-Martinez v. Holder (9th Cir. 2009) 558 F. 3d 897.  For a more comprehensive overview of motions to suppress, see Elliott Ozment and ILRC attorneys, Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings (4th ed. 2017).

However, an active or potential ICE detainer will be noted in the person’s CDCR classification documents as special case factor “A” (active hold) or “P” (potential hold) and administrative determinant “HOL.” See 15 CCR § 3375.3(f); 15 CCR § 3375.2(b)(13).

Previously, the CDCR policy was to bar people with active or potential ICE detainers from participating in some programs, such as the Family Foundations Program, cognitive behavioral treatment and substance abuse programs, or the alternative custody program. 15 CCR §§ 3074.3(c) (Family Foundation Program), 3040.1(c)(5) (cognitive behavioral treatment) and 3078.3(a)(6) (substance abuse programs).  

However a new state law provides that the CDCR shall not “restrict access to any in-person educational or rehabilitative programming, or credit-earning opportunity on the sole basis of citizenship or immigration status, including, but not limited to, whether the person is in removal proceedings, or immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual.” Government Code § 7284.10(b)(1); CDCR, Memorandum Re: Implementation of California Senate Bill 54, “The California Values Act” (Jan. 2, 2018).

As of June 2018, the CDCR rules had not been updated to reflect this law.  The CDCR has recently re-affirmed a policy that excludes some people from being placed in conservation camps or minimum support facilities (MSFs) based on their immigration status.  The policy applies a CDCR rule stating that a person with an ICE detainer who is likely to be deported cannot be placed at a Level I minimum security facility which does not have perimeter gun towers. 15 CCR § 3375.2(a)(4).

Under this policy, anyone who has previously been deported, unless they are a naturalized U.S. citizen or a U.S. permanent resident and ICE confirms the person is not deportable, and anyone who has a potential or actual ICE hold, unless they have family ties in California or 12 months total work history in California, is ineligible for camp or MSF placements. CDCR, Memorandum Re: Implementation of California Senate Bill 54, “The California Values Act” (Jan. 2, 2018); CDCR, Memorandum Re: Modification to Minimum Custody Determinations of Foreign-Born Inmates (Feb. 12, 2013).

This article would not be possible without reference to the Prison Law Office’s great treatise, “California Prison and Parole Law Handbook.”  We thank the Prison Law Office for their invaluable work and the information gathered in this book.