When an undocumented immigrant gets arrested in the United States, two separate legal cases start at the same time: a criminal case in state or local court for the alleged offense, and a federal immigration case that can end in deportation. The two run on different tracks, with different rules about lawyers, bail, and possible outcomes, and the way the criminal case is resolved often decides whether the immigration case can be fought at all.
Booking and the Rights That Apply
After an arrest by local or state police, the person is taken to a station or jail for booking. Officers record personal information, take fingerprints, and photograph the individual. The process is the same regardless of citizenship.
The U.S. Constitution protects everyone on American soil, including people without legal immigration status.1Library of Congress. Removal of Aliens Who Have Entered the United States That means the right to remain silent and the right to speak with a lawyer before answering questions apply from the moment of arrest. You do not have to answer questions about where you were born, how you entered the country, or your immigration status. Volunteering that information during booking or interrogation can create evidence that immigration authorities use later.
How ICE Finds Out About the Arrest
Fingerprints taken during booking are automatically run through federal databases, including systems maintained by the FBI and the Department of Homeland Security.2Federal Bureau of Investigation. IAFIS/NGI Biometric Interoperability Those systems cross-reference the prints against immigration records, prior arrests, and visa overstay data. If a match flags someone as potentially removable, Immigration and Customs Enforcement (ICE) gets an alert.
That alert often leads ICE to issue an immigration detainer, sometimes called an “ICE hold.” A detainer is a formal request asking the local jail to notify ICE before releasing the person and to hold them for up to 48 additional hours beyond their scheduled release so ICE can pick them up.3U.S. Immigration and Customs Enforcement. Immigration Detainers A detainer is a request, not a court order. Whether a jail honors it depends on local law and policy.
Whether the Local Jail Cooperates With ICE
Cooperation between jails and ICE varies by jurisdiction. Under the 287(g) program, local law enforcement agencies sign agreements that allow their officers to perform certain immigration functions, such as identifying removable individuals in custody, exercising limited immigration authority during routine policing, or serving administrative immigration warrants on people already detained.4U.S. Immigration and Customs Enforcement. Partner With ICE Through the 287(g) Program In these places, the criminal and immigration processes can begin almost simultaneously.
Other jurisdictions limit cooperation. Several federal courts have found that holding someone past their release date on a detainer alone, without a judicial warrant or probable cause, violates the Fourth Amendment. That reasoning has led many cities and counties to adopt policies restricting ICE cooperation. The policies vary: some refuse to hold anyone past their scheduled release, some make exceptions for serious felonies, and some simply decline to share release dates with ICE. In those places, a person who posts criminal bail or finishes a sentence may walk out before ICE arrives.
The Criminal Case and Why the Plea Matters
The criminal case moves through state or local court on its own track. The first appearance is usually an arraignment, where the judge reads the formal charges, takes a plea, and decides on bail.5U.S. Department of Justice. Initial Hearing / Arraignment
An undocumented person facing criminal charges has the right to a court-appointed public defender if they cannot afford a lawyer. The Sixth Amendment right to counsel in criminal prosecutions applies regardless of citizenship. This is one of the sharpest contrasts with the immigration side, and it matters because the criminal resolution often decides whether deportation is mandatory or whether defenses remain available. The Supreme Court has also held that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea, and failure to give that advice can be grounds for overturning a conviction.
Immigration consequences hinge on the specific crime of conviction, not the underlying conduct. A plea to petty theft may avoid an aggravated felony classification, while a plea to theft with a sentence of 365 days triggers it. One day can change everything. By the time the case reaches immigration court, the damage from a poorly negotiated plea is often irreversible, so making sure the criminal defense lawyer understands immigration law is where most of the leverage exists.
Criminal Bail Does Not Resolve the Immigration Hold
Posting bail in the criminal case only addresses the criminal charges. If an ICE detainer is in place and the jail honors it, posting bail will not lead to release. Instead, the person is transferred into ICE custody.3U.S. Immigration and Customs Enforcement. Immigration Detainers The criminal bail and any later immigration bond are completely separate; paying one does not count toward the other.
Transfer to ICE Custody and the Notice to Appear
Once ICE takes custody, the person is usually moved to a federal immigration detention facility. ICE then serves a Notice to Appear (NTA), the charging document that starts formal removal proceedings. The NTA lists the factual allegations and the legal grounds the government claims make the person deportable.6ICE Portal. Form I-862 Notice to Appear Once filed with the immigration court, a hearing date is set before an immigration judge.
Immigration Bond
A detained person can ask for release on an immigration bond, which is separate from criminal bail. The minimum bond amount is $1,500, but judges frequently set bonds much higher; $4,000 and above is common. The judge weighs criminal history, community ties, employment, family in the United States, and whether the person is a flight risk or danger to the community.
Not everyone is eligible. People subject to mandatory detention generally cannot get a bond hearing at all. That category includes anyone convicted of an aggravated felony, most controlled substance offenses, firearms crimes, and certain crimes involving moral turpitude. For those individuals, the only path to release is typically a federal court challenge arguing that prolonged detention without a hearing violates due process.
Alternatives to Detention
In some cases, ICE releases individuals under supervised conditions instead of holding them. Supervision tools include GPS ankle monitors, smartphone check-in apps with facial recognition, and telephonic reporting.7ICE (Immigration and Customs Enforcement). Archived: Alternatives to Detention The level of monitoring depends on criminal and immigration history and family ties. Missing a check-in triggers an automatic alert, and violations can lead to re-detention.
No Free Lawyer in Immigration Court
Immigration proceedings are classified as civil, not criminal, even though the result can be forcible removal from the country. Because they are civil, the Sixth Amendment right to a government-provided attorney does not apply. A person can hire an immigration lawyer, but if they cannot afford one, the government will not provide one for free.1Library of Congress. Removal of Aliens Who Have Entered the United States Many people face deportation proceedings without any legal help. Studies consistently show that represented individuals are far more likely to win their cases.
Some free options exist. The Executive Office for Immigration Review maintains a list of nonprofit organizations and pro bono referral services that provide free representation in immigration court.8Executive Office for Immigration Review. List of Pro Bono Legal Service Providers Demand far exceeds supply, so contacting these organizations as early as possible is one of the most important steps a person in removal proceedings can take.
Defenses That May Still Be Available
Being placed in removal proceedings does not automatically mean deportation. Several forms of relief exist, though each has strict eligibility rules, and certain criminal convictions can disqualify a person entirely.
Cancellation of Removal
An immigration judge can cancel a removal order for someone who has never been a lawful permanent resident if they meet all four requirements: continuous residence in the United States for at least ten years, good moral character during that period, no disqualifying criminal convictions, and a showing that removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child.9Department of Justice (DOJ) / Executive Office for Immigration Review (EOIR). Cancellation of Removal – Non-Legal Permanent Residents The hardship standard is deliberately high. Ordinary hardship, like financial difficulty or the emotional strain of family separation, is usually not enough.
Asylum
A person who fears persecution in their home country based on race, religion, nationality, political opinion, or membership in a particular social group can apply for asylum. The critical deadline is one year from the date of last arrival in the United States. Missing it generally bars the application unless a recognized exception applies.10U.S. Citizenship and Immigration Services. The Affirmative Asylum Process Many people in removal proceedings do not learn of this deadline until it has already passed.
U Visas for Crime Victims
Undocumented individuals who are victims of certain serious crimes, including domestic violence, sexual assault, trafficking, kidnapping, and other qualifying offenses, may be eligible for a U visa. The person must have suffered substantial physical or mental abuse, possess credible information about the crime, and be helpful or likely to be helpful in the investigation or prosecution. A certification from the law enforcement agency involved, confirming cooperation, is a key requirement.11U.S. Citizenship and Immigration Services (USCIS). U Visa Law Enforcement Resource Guide U visa holders can eventually apply for lawful permanent residence.
Voluntary Departure
When other relief is not available, some individuals choose voluntary departure, leaving the country at their own expense by a deadline set by the immigration judge. Voluntary departure avoids a formal removal order on the record. That matters because a formal order carries severe reentry penalties, while voluntary departure preserves the possibility of applying to return lawfully in the future. It is not available to everyone, and failing to leave by the deadline converts it into a formal removal order.
How Criminal Convictions Close These Doors
Federal immigration law treats certain categories of convictions as automatic triggers for removal, and the definitions are broader than most people expect.
Aggravated Felonies
The term “aggravated felony” in immigration law is misleading. It covers offenses that many states classify as misdemeanors and includes crimes that are not violent at all: theft with a one-year sentence, tax fraud involving more than $10,000, drug trafficking of any amount, and certain document fraud offenses. A conviction for an aggravated felony makes a person ineligible for almost every form of relief, including cancellation of removal, asylum, and voluntary departure. It also triggers mandatory detention without bond and a permanent bar to reentry after removal.12U.S. Department of State. 9 FAM 302.11 – Ineligibility Based on Previous Removal
Crimes Involving Moral Turpitude
This category is vaguer and covers offenses involving fraud, dishonesty, or conduct that shocks the public conscience, such as theft, forgery, assault with intent to cause serious harm, and many sex offenses. A single conviction for a crime involving moral turpitude committed within five years of admission, where the offense carries a potential sentence of at least one year, can make someone deportable. Two or more such convictions at any time, even from unrelated incidents, also trigger deportability.13eCFR. 22 CFR 40.21 – Crimes Involving Moral Turpitude and Controlled Substance Violators A narrow “petty offense” exception exists for a single crime where the maximum sentence did not exceed one year and the actual sentence was six months or less, but it does not help anyone with more than one conviction.
Controlled Substance and Firearms Offenses
Nearly any drug conviction triggers deportability, with one narrow exception: simple possession of 30 grams or less of marijuana for personal use. Drug convictions also result in mandatory detention without bond eligibility. Firearms offenses, including illegal possession, sale, or use, are treated similarly and make a person both deportable and subject to mandatory detention.
Bars to Coming Back After Removal
A formal removal order does not just end with leaving the country. It creates legal barriers to ever coming back, and the length of the bar depends on the circumstances:
- Five-year bar for people removed through expedited removal at a port of entry or found inadmissible on arrival.
- Ten-year bar for most people removed through formal proceedings or who leave while a removal order is outstanding.
- Twenty-year bar for anyone removed two or more times.
- Permanent bar, with no waiver available, for anyone removed who was also convicted of an aggravated felony.
Reentering or attempting to reenter while a bar is in effect is a federal crime that can result in imprisonment.12U.S. Department of State. 9 FAM 302.11 – Ineligibility Based on Previous Removal Those consequences are what makes the earliest decisions in the criminal case so important. By the time removal proceedings begin, most of the room to maneuver has already been set by what happened in the first courtroom.