Difference Between An ICE Detainer And A Warrant: What Every Chicago Defendant Should Know

Arrests, Immigration Holds, and Illinois Criminal Law

Every week in Chicago’s criminal courts, I meet individuals who are unsure why they’re still in custody after posting bail or winning their case. When I investigate, the answer is often the same—an ICE detainer. Many assume this means there’s a warrant. In reality, the two are entirely different under both Illinois and federal law. Confusing them can lead to unlawful detention and serious constitutional violations.

A warrant is a judicial document issued by a judge based on probable cause under 725 ILCS 5/107-9. It authorizes law enforcement to arrest, search, or seize evidence. A detainer, by contrast, is a civil request issued by Immigration and Customs Enforcement under 8 C.F.R. § 287.7, asking a local jail to hold someone for up to 48 hours after they should have been released. One comes from a court. The other comes from an agency. Only one is legally enforceable by local police in Illinois.

In Illinois, these issues arise often when someone is arrested for a misdemeanor or felony—whether for retail theft under 720 ILCS 5/16-1, DUI under 625 ILCS 5/11-501, or possession of a controlled substance under 720 ILCS 570/402. Once arrested, fingerprints go into national databases accessible to ICE. If ICE believes the person may be deportable, it can issue a detainer to the jail. That’s where constitutional problems begin.

Chicago’s Welcoming City Ordinance and the Illinois TRUST Act

Chicago and Cook County have long resisted being used as extensions of federal immigration enforcement. The Welcoming City Ordinance limits cooperation with ICE unless a judicial warrant is produced. Similarly, the Illinois TRUST Act (5 ILCS 805/15) prohibits police from detaining anyone based solely on an immigration detainer or administrative warrant. Despite these protections, errors and miscommunication between agencies still occur. I’ve had clients unlawfully held for days even after a judge ordered their release.

When this happens, my firm acts immediately—filing emergency motions citing both the TRUST Act and Article I, Section 6 of the Illinois Constitution, which mirrors the Fourth Amendment’s prohibition on unreasonable seizure. The court can order immediate release and, in some cases, suppress evidence obtained during the illegal detention.

How Criminal Cases Begin and Where ICE Gets Involved

Every Illinois criminal case begins with an investigation. Officers gather evidence, interview witnesses, and sometimes conduct searches under warrants issued by a judge. Once probable cause exists, an arrest occurs. During booking, fingerprints are shared with the FBI and Department of Homeland Security through the Secure Communities program. That’s when ICE enters the picture.

If ICE identifies the person as removable, it issues a detainer notice to the jail. Even if your attorney posts bond, the jail may hold you past your release time “for ICE.” But that hold isn’t mandatory in Illinois. A jail acting on it alone violates state law and can face civil liability.

As a Chicago criminal defense attorney, I monitor every client’s status from the moment they’re booked. If ICE involvement is suspected, I take immediate steps to confirm the detainer and prevent illegal holds.

How Warrants Differ Legally and Practically

A criminal warrant is backed by probable cause and judicial oversight. A civil detainer is not. The distinction matters. A valid Illinois warrant allows local police to enter property, detain a person, and present them before a judge. A detainer simply requests that the jail delay release. It grants no new arrest authority.

Some jails mistakenly treat ICE detainers as mandatory because they’re issued on official government letterhead. However, federal courts have repeatedly ruled that detainers are voluntary. In Illinois, honoring them violates the TRUST Act. Any detention beyond your release time—without a judge’s warrant—is unlawful.

Penalties for the Underlying Offense Still Apply

While an ICE detainer doesn’t add criminal penalties, the underlying Illinois charges still carry serious consequences. Misdemeanors can mean up to one year in jail, while felonies can bring decades in prison. Common statutes include:

• 720 ILCS 5/16-1 – Theft
• 720 ILCS 5/12-3.2 – Domestic Battery
• 720 ILCS 570/402 – Possession of Controlled Substance
• 720 ILCS 5/19-1 – Burglary
• 720 ILCS 5/24-1.6 – Aggravated Unlawful Use of a Weapon

But for non-citizens, even minor convictions can lead to removal under 8 U.S.C. § 1227(a). That’s why early defense coordination between criminal and immigration counsel is essential.

Example Case: Arrest in Chicago’s Brighton Park Neighborhood

A client in Brighton Park was arrested for misdemeanor theft at a grocery store. After arraignment, bond was set and quickly posted. Hours later, the family called saying he wasn’t released. The Cook County Jail had received an ICE detainer. I immediately filed an emergency motion referencing the Illinois TRUST Act and requested a hearing. The judge ordered release within hours, ruling that the detainer lacked legal effect in Illinois. Two weeks later, we negotiated with prosecutors to dismiss the charge in exchange for community service. Without that intervention, my client might have been transferred to a detention center in Kankakee despite having no criminal record.

Evidence and the Criminal Process

During investigation and trial, police and prosecutors may use various forms of evidence—body-cam footage, witness testimony, fingerprints, and digital data. If any evidence was gathered while the defendant was illegally detained under an ICE hold, I move to suppress it. Courts exclude such evidence under the exclusionary rule derived from Mapp v. Ohioand codified in Illinois through 725 ILCS 5/114-12.

In Chicago, where coordination between local and federal agencies is frequent, I insist that the prosecution disclose all communication with ICE. Transparency ensures the defendant’s rights remain intact.

The Trial and Defense Process in Illinois

Illinois criminal procedure guarantees the right to counsel, a public trial, and confrontation of witnesses. Once charges are filed, your lawyer can demand discovery under Illinois Supreme Court Rule 412, file motions to suppress, or challenge probable cause. During trial, the prosecution must prove guilt beyond a reasonable doubt.

A Chicago criminal defense attorney’s role extends beyond arguing in court. I negotiate plea deals that preserve immigration eligibility, file motions to dismiss when charges lack foundation, and protect clients from post-release detention. Each stage—from arraignment to sentencing—requires strategy and timing. One wrong move can trigger deportation even if the case ends favorably.

Defense Strategies in ICE-Related Criminal Matters

Effective defenses often include:

• Proving unlawful detention – showing that any hold after bond violates the Illinois TRUST Act.
• Challenging evidence chain of custody – demonstrating that police or ICE acted outside authority.
• Plea engineering – reducing or amending charges to avoid deportable offenses.
• Double representation coordination – aligning with immigration counsel to protect status.
• Constitutional motions – arguing Fourth or Fifth Amendment violations.

These defenses have protected hundreds of clients in Cook, DuPage, and Will Counties from both criminal and immigration harm.

Why You Need an Attorney Every Step of the Way

Even a simple misunderstanding about the word “warrant” can leave someone detained for weeks. Without immediate legal action, ICE may assume custody before the criminal case concludes. Once transferred, defendants can lose contact with family and counsel. I’ve seen cases collapse because the accused couldn’t appear in court after being moved to a federal facility.

A Chicago criminal lawyer who understands both systems can prevent that. I personally verify detainers, contact jail administrators, and ensure compliance with Illinois law. Every communication, every filing, every hearing matters.

What To Ask When Hiring a Criminal Defense Lawyer

When interviewing a potential lawyer, ask whether they’ve handled cases involving ICE detainers, whether they’ve filed motions under the Illinois TRUST Act, and how often they appear in Cook County criminal courtrooms. Also ask if they personally attend hearings or send associates. A good lawyer will give you direct, clear answers and realistic expectations—not promises.

ICE Detainer Frequently Asked Questions

What happens if ICE issues a detainer after I’m released on bond?
In Illinois, jails cannot re-arrest or hold you solely on that detainer. If ICE wants custody, it must present a judicial warrant or assume custody at the moment of release. Your attorney should monitor communication between the jail and ICE to ensure compliance.

Does a detainer mean I’m being deported?
No. A detainer only notifies local law enforcement that ICE is interested in you. Deportation can only occur after a separate immigration proceeding. Still, a criminal conviction can heavily influence that process, so immediate representation is essential.

Can ICE come to my home with a detainer?
A detainer applies only to jails or law-enforcement agencies—it does not authorize entry into your home. ICE needs a warrant signed by a judge to enter private property without consent.

If my case is dismissed, can ICE still arrest me?
Yes, but only under federal immigration authority—not because of the criminal case. Illinois police cannot legally detain you for ICE after your case is dismissed. That’s when your lawyer must act fast to protect your release.

Will a misdemeanor hurt my immigration status?
Sometimes. Crimes such as theft, domestic battery, or DUI involving injuries can qualify as crimes of moral turpitude under immigration law. Plea agreements must be carefully negotiated to prevent long-term immigration consequences.

What’s the difference between an ICE administrative warrant and a criminal warrant?
An administrative warrant is signed by an ICE officer and authorizes only ICE agents to detain someone for civil violations. A criminal warrant is issued by a judge and carries full legal authority. Local Illinois police can enforce only the latter.

Can Cook County refuse ICE requests?
Yes. Cook County policy and the Illinois TRUST Act forbid detaining individuals solely for ICE. The sheriff’s office may notify ICE of a release but cannot hold someone without a judicial warrant.

Do I need both a criminal lawyer and an immigration lawyer?
In most cases, yes. A criminal defense lawyer like me focuses on the Illinois charges, while an immigration lawyer handles federal removal issues. Coordinated defense gives you the best protection.

How can my lawyer stop ICE from holding me?
By filing motions citing the TRUST Act, contacting jail officials, and documenting release times. Judges in Cook County have ruled in favor of defendants when these laws were violated.

How soon should I hire an attorney after an arrest?
Immediately. ICE involvement can happen within hours of booking. The sooner you have counsel, the more likely you can avoid an unlawful detainer or negotiate a non-deportable plea.

Why Clients Trust The Law Offices of David L. Freidberg

For decades, I’ve defended clients across Chicago, Oak Lawn, Cicero, Schaumburg, Skokie, and throughout Cook County against criminal charges that threatened not only their freedom but their immigration status. My firm takes immediate action—verifying holds, filing emergency motions, and protecting clients from unlawful detention. I personally appear in court and remain available 24/7 because these cases move fast.

If you’re facing criminal charges or suspect ICE involvement, do not wait. A misunderstanding about a “detainer” versus a “warrant” can change your life. My office will protect your rights and fight for your freedom at every stage.

When You Need a Fighter, Call Us!

If you were arrested in Chicago, protect your future by contacting The Law Offices of David L. Freidberg. We have decades of experience handling criminal, DUI, and traffic cases in Illinois. Our firm is available 24/7 to provide the legal defense you deserve.

Contact us today at (312) 560-7100 or toll-free at (800) 803-1442 for a free consultation. We’re available 24/7 to serve clients throughout Illinois, Cook County, DuPage County, Will County, and Lake County.