Posting criminal bail does not settle a person's immigration status, and immigration status does not cancel criminal bail. They run on two separate tracks. A criminal court sets bail to make sure someone returns to criminal court. Immigration authorities can ask a jail to notify them or hold the person, and they can run a separate detention and bond process of their own. If your loved one is a noncitizen, you need to plan for both tracks before you pay anything.
This guide explains how the two systems differ, what an immigration hold means, who may qualify for an immigration bond, and what a family can do while someone is still in custody after bail is paid.
TL;DR
- Criminal bail and an immigration bond are different things, set by different decision makers for different cases.
- An ICE detainer can keep a person in custody after criminal bail is paid. It asks the jail to hold the person for up to 48 hours or to notify ICE of the release.
- An immigration bond starts at $1,500 with no upper limit. Some people with certain criminal convictions are not eligible for one at all.
- Before paying a bail premium, ask an immigration attorney whether an immigration hold is likely. The premium on a criminal bond is non-refundable.
Table of Contents
- Criminal bail and immigration bond are not the same thing
- Can someone with lawful status be detained after an arrest?
- What an immigration hold means
- Who may qualify for an immigration bond
- How a family can ask for a bond hearing
- What an immigration bond costs and what it requires
- Our perspective: plan for both tracks before you pay
- What to do if your loved one is still in custody after bail is paid
- Before you post bail: questions to settle first
- How Midnight Bail Bonds can help
- FAQ
- Sources
Criminal bail and immigration bond are not the same thing
Most families have only dealt with criminal bail, so the vocabulary is confusing. Here is the short version.
A criminal bond is set by a criminal judge to make sure a defendant comes back to criminal court. An immigration bond applies to a noncitizen detained by ICE. It allows release while the immigration case goes forward.
| Criminal bail | Immigration bond | |
|---|---|---|
| Who is held | Someone arrested on a criminal charge | A noncitizen detained by immigration authorities |
| Who sets the amount | A criminal court (often from a county bail schedule, or a judge at a hearing) | DHS first, then an immigration judge on request |
| What it guarantees | Appearance in criminal court | Appearance at immigration hearings and compliance with orders |
| Lowest amount | Depends on the charge and county | $1,500 |
| Who can post it | A bail agent can post a bond for a fee | The full amount is paid by a lawful permanent resident or U.S. citizen |
A bail agent writes criminal bonds. It does not write immigration bonds, and the two cannot be swapped for each other. If someone is released on criminal bail and ICE picks them up at the jail door, the criminal bond stays in place and the person must still make their criminal court dates. That is the part families often miss.
Can someone with lawful status be detained after an arrest?
Yes, it can happen. ICE does not need a judicial warrant to make an arrest. Its officers may arrest people they believe are in the country illegally. A person with valid status can be questioned, and a mistake or a missing document can turn into hours or days of stress.
If your relative has a green card, a visa or another status, keep these on hand:
- The A-number or other immigration document numbers
- Copies of the green card, visa, work permit or pending-application receipts
- The name and phone number of an immigration attorney, if there is one
A criminal arrest can also create immigration consequences for people who are fully documented, depending on the charge. That is a question for an immigration attorney, ideally one who speaks to the criminal defense lawyer as well. A bail agent cannot answer it and should not guess.
What an immigration hold means
The words "immigration hold" usually mean an ICE detainer. An ICE detainer asks local authorities to tell ICE when a person is about to be released, or to hold them for up to 48 hours so ICE can take custody. Whether a local jail goes along with that request varies by state and locality.
Three points matter for families:
- A detainer is a request, not a court order. It is issued by an immigration agency, not by the judge handling the criminal case.
- It does not change the criminal bail amount. Federal guidelines say detainers should not affect criminal bail. The Immigrant Legal Resource Center warns, however, that prosecutors and judges sometimes use a detainer improperly to influence bail decisions.
- The rules have been challenged in court. The National Immigrant Justice Center reports that relying on local jails to hold people for ICE often raises Fourth Amendment problems, and that a class action settlement now limits some of these practices. Under that settlement, the ICE center involved may issue detainers only after a neutral review. Otherwise it may send a Request for Notification of Release.
So a detainer can mean one of two things at the jail: a request to be told when the person leaves, or a request to keep them a little longer. Ask the jail records office which one is on file. You are entitled to ask the jail what is holding your relative, and the answer decides your next step.
Holds that are not immigration holds
Not every delay after bail is about immigration. A person can stay in custody because of a hold from another county, a warrant in another case, a probation or parole issue, or a paperwork delay. We cover that in why a hold can outlast posted bail. Ask the jail for the exact reason before assuming the worst.
Who may qualify for an immigration bond
If ICE takes custody, release depends on a separate process. DHS sets the bond first, and an immigration judge may redetermine it if the person asks.
Whether a person is eligible at all depends on factors such as criminal history and the specific immigration status they hold. Advocacy groups note that people with certain criminal convictions are subject to mandatory detention and cannot get a bond. The immigration court's own manual explains that judges lack jurisdiction over bond hearings for people who are ineligible for release on those grounds.
There is also a body of legal argument on the other side. The ACLU has published guidance on due process challenges to mandatory detention for people whose convictions are old and who have since built stable lives and community ties. Whether such a challenge fits your family's facts is something only an immigration lawyer can judge.
Bond rules and policies in this area have shifted repeatedly in recent years, so a guide that is a few months old can be out of date. Confirm the current rules with an immigration attorney or the immigration court before you rely on any of this.
How a family can ask for a bond hearing
A bond hearing is not automatic. According to the immigration court's policy manual, a request is ordinarily made in writing, but can be made orally to the court. It must be specifically requested, and it is separate from the removal case itself.
That last point is worth understanding. Bond hearings decide release, while the immigration hearings decide whether a person can stay in the United States. Winning release does not win the case, and losing a bond hearing does not lose it.
Two practical details from the same court guidance:
- Bond hearings are generally not recorded.
- Documents filed in the removal case must be submitted again for the bond proceeding.
Build the paper file early
The Advocates for Human Rights stresses that verbal assurances are not enough. A detainee needs written evidence showing they are neither a flight risk nor a danger to the public. Families can start gathering:
- A lease or mortgage statement showing a stable address
- Pay stubs or an employer letter
- Letters of support from family, clergy, teachers or neighbors
- Proof of family ties, such as birth certificates of U.S.-citizen children
- Records showing the person has gone to court dates in the past
This is also a moment to ask a lawyer about parole directly from ICE, since some people seek that route in addition to a judge's decision.
What an immigration bond costs and what it requires
Immigration bonds work differently from the 10% premium model of criminal bail. ICE's own guide says judges usually set bonds of at least $1,500 with no upper limit, and the full amount must be paid by a lawful permanent resident or U.S. citizen. The person released must attend hearings and follow the judge's orders.
The risk is serious. If the person misses a hearing or does not comply with immigration orders, the bond money is forfeited and is not returned to the payer. Before anyone puts up that money, they should understand that they are guaranteeing the person's compliance, not simply paying a fee.
Beware of anyone who promises to "fix" an immigration hold for a fee. If a person is not a lawful permanent resident or citizen, they cannot be the payer, and a criminal bail premium has no effect on ICE custody.
Our perspective: plan for both tracks before you pay
We see the same moment again and again. A family calls at 2 a.m., the relative is in a California county jail, and somewhere in the conversation someone mentions that he is not a citizen. Our advice is the same each time.
First, we write criminal bail bonds. We do not give immigration legal advice, and we will not guess whether ICE will place a detainer. What we can do is help you gather the facts a lawyer needs: the booking number, the charges, the bail amount and the county. If you have the booking number, bail can move faster even when the person has no ID on them.
Second, understand what you are buying. The premium on a criminal bond is the state-mandated, non-refundable fee, typically 10% of the total bail amount. If ICE picks the person up after release, that premium is not coming back. That doesn't always mean bail is a bad idea. Bail can still be the right call, for example when it lets the person leave jail, meet with a lawyer and fight both cases from outside. It means you should make the decision with eyes open and not discover the hold at the jail door.
Third, do not stop thinking about the criminal case. A person who is transferred to immigration custody can still miss a criminal court date, and that can lead to a warrant and a forfeited bond. If that happens, ask the defense attorney how to inform the criminal court about the transfer. We explain what families must do in our guide to fixing forfeited bail.
We have licensed agents answering at any hour and we explain costs up front, in English or Spanish. If you are not sure whether to post bail, call and talk it through. We would rather you decide with full information.
— Jake
What to do if your loved one is still in custody after bail is paid
Families ask this more than anything else, and it has the least public guidance. Here is a practical sequence to follow, based on the sources above and on what we see on calls.
- Ask the jail why the person has not been released. Ask the records or release desk whether the delay is a detainer, an out-of-county hold, a warrant or processing time. Write down the name of the person you spoke to and the time.
- Call the bail agent. Tell us what the jail said. If the cause is a criminal hold, we can help you work out whether the bond is posted and what comes next. If it is an ICE matter, we will say so plainly.
- Contact an immigration attorney right away. If the person is moved to ICE custody, the attorney can look at bond eligibility, request a bond hearing and advise on the removal case. Free and low-cost legal help exists in many areas, so ask the local legal aid office if cost is a barrier.
- Talk to the criminal defense lawyer or public defender. They need to know about the detainer or transfer so they can protect the criminal case and tell the court where the defendant is.
- Locate the person. If they are no longer at the jail, ICE has an online detainee locator. A search needs their A-number or name and country of birth. You can also check our free inmate search for jail booking information.
- Start the document file. Collect the evidence described above for a bond hearing, and keep copies of the criminal bond paperwork.
- Keep every criminal court date on the calendar. Missing one creates a second problem. Our guide on what happens after bail covers the obligations that continue after release.
If the arrest happened while the person was already out on bail, the steps above still apply, with extra risk. See what to do within 24 hours in our piece on being arrested while on bail.
Before you post bail: questions to settle first
If your relative is a noncitizen, ask these before signing.
- Is there a known detainer? The jail may tell you. A defense lawyer may also know.
- How high is the criminal bail? A large amount makes the non-refundable premium larger, so the cost of a failed release matters more.
- Who will be the indemnitor? The person who signs for the bond takes on responsibility for the defendant's appearance in criminal court. Understand that obligation before you sign.
- Is collateral required? In many cases, we write bonds without collateral, which matters if your family cannot pledge property.
- What are the bail conditions? Courts can impose terms on release. Read about bail conditions in California so nothing surprises you.
- When is the next hearing? The bail hearing process can change the amount, and sometimes a lawyer can argue for lower bail before anyone pays.
How Midnight Bail Bonds can help
If you decide criminal bail is right for your family, we can move quickly. Our licensed agents answer day and night across California, offer bilingual English and Spanish support, and explain the cost before you commit. The state-mandated premium is 10% of the total bail amount, and we offer flexible payment plans and financing. We accept cash, credit and debit cards, Zelle and financing.
You can start from your phone with online bail bonds, look up booking information with our free inmate search on midnightbail.com, or call our 24-hour bail bond line at any hour. Have the booking number ready, and tell the agent up front if you are concerned about an immigration hold.
FAQ
Does posting bail stop ICE from detaining someone?
No. Criminal bail and immigration custody are separate. A detainer asks the jail to notify ICE or hold the person for up to 48 hours, so a person can be transferred to ICE after bail is posted. The criminal bond remains in effect, and the person still has to make their criminal court dates.
Can an undocumented person get criminal bail in California?
Immigration status is not the criteria for criminal bail. The court sets bail based on the charge and the case, and a bail agent can write a bond for a defendant who qualifies. What status changes is the risk of an ICE hold after release, which is why you should speak with an immigration attorney before paying the premium.
Will I get my money back if ICE takes my relative after I post bail?
The premium on a criminal bond is non-refundable, so you should not expect it back. Any collateral is a different matter and depends on whether the bond conditions were met. Ask the agent how the bond is handled if the defendant is transferred to immigration custody, and tell the defense attorney so the court knows where the defendant is.
What is the minimum immigration bond?
Immigration judges usually set bonds at a minimum of $1,500, with no upper limit. The full amount must be paid by a lawful permanent resident or U.S. citizen. People with certain criminal convictions may not be eligible for bond at all.
Who can request an immigration bond hearing?
The detained person, usually through an attorney, asks the immigration court for a bond redetermination hearing. The request is ordinarily written, but it can be made orally. Families can help by collecting written proof of address, work, family ties and community support.
Sources
- Immigration Bond vs Criminal Bond: Key Differences
- Immigration Enforcement Frequently Asked Questions, ICE
- ICE Detainers: Advice and Strategies for Criminal Defense Counsel, ILRC
- New Class Action Settlement Requires ICE To Stop Rampant Constitutional Violations, NIJC
- EOIR Policy Manual, Chapter 8.3 Bond
- Understanding Immigration Bonds, The Advocates for Human Rights
- Constitutional Challenges to Mandatory Detention, ACLU practice advisory
- Bonds, EOIR guide
- How to Get a Bond, ICE