2021 Sees Huge Rise Of Immigrants Sitting in Jail: here’s how to get them out

  • This year, the number of immigrants held in private prisons & local jails that sat partially empty during the pandemic has risen from 14,000 in early January 2021 to nearly 27,000 in July.

    Over the years, we have spent a great deal of time visiting people in immigration custody.

    Many folks think of actual criminals that “belong” in jail — conjured up images of immigrants tied to organized crime or cartels — but this is rarely the case.

    What kind of immigrants wind up in jail?

    To break stereotypes, here is an example of just three immigrants – out of a thousand we’ve seen – that I can remember personally visiting in detention:

    • All three had lived in the US for decades.
    • None of the three were border crossers.
    • All had several school age kids born in the US.
    • All three had US citizen spouses.
    • None had a felony involving violence on their record or any crime in the last decade.

    So why would an immigrant who is a decent law-abiding citizen wind up in jail?

    Many immigrants in custody are locked up due to encounters with law enforcement for old arrests.


    If they have no valid visas, temporary or permanent. (if your green card has expired you should read this post asap).


    Many foreign nationals in jail are not able to ask for bail (known as “bond” in Immigration Law).


    One type of immigrant who cannot request bond is an “arriving alien.”

    Arriving aliens are defined as:

    • Caught at a border or other port of entry trying to be admitted, including those paroled (allowed to enter);
    • Interdicted and taken into the country even if not seeking admission;
    • Green Card holders categorized as seeking admission.

    So, How Do We Get Immigrants Out of Jail?

    1. Immigration may “parole” (release) legal permanent residents with no crimes that make them subject to mandatory detention.
    2. Immigration may also “parole” (release) immigrants who prove “credible fear” of removal to their home countries.
    3. Immigration may release certain immigrants detained temporarily – after arrest by local, state or federal law enforcement – they might be bond eligible.

    Back on September 30, 1996, President Bill Clinton signed a law which resulted in mandatory detention for all immigrants who committed a host of crimes. The US Supreme Court repeatedly has found this law to be constitutional.

    The key date to remember is that immigrants released by criminal authorities after October 9, 1998 are subject to mandatory detention.

    However, there are always exceptions.

    A great immigration lawyer with extensive experience in detention cases may be able to get an immigrant out of Jail.

    AND DO NOT FORGET: immigrants may be detained for being fugitives.

    Nearly 40,000 immigrants are in custody in more than 250 jails.

    Speaking to an immigration attorney with tremendous experience on detention may change the lives of the immigrant in jail as well as his family.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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