Many friends and families call upon our immigration law firm with questions when there is a loved one detained by Immigration. This is when immigrants, or even visitors have wound up in Detention or immigration jail, ( most recently this has even happened to Canadians who are simply crossing on a visitor or work visa).

The first question we are usually asked is: how can we get our loved one out of there; can we post bail for immigrants in detention? What are my rights?

What is US Immigration Detention?

Immigration detention involves holding individuals suspected of violating U.S. immigration laws, often in facilities managed by Immigration and Customs Enforcement (ICE). These facilities, which can include private prisons or local jails, house people awaiting immigration hearings or deportation. Recent cases, like that of a Canadian woman detained for nearly two weeks over a work visa issue, highlight the unpredictability of border enforcement. Such incidents underscore the need to be informed about your rights and prepared for potential challenges.

Detention can happen at ports of entry, such as airports or border crossings, or during immigration raids. Reasons for detention vary, from visa irregularities to suspected illegal entry. With the U.S. immigration system under scrutiny for its rapid expansion and strict policies, understanding the process is critical for anyone navigating this landscape.

A Few Facts About US Immigration Detention

• As of this writing, more than 360,000 people await a hearing before an Immigration Judge.
• Tens of Thousands more will be added to the list by the end of the year based on current data.
• There are a number of reasons why these immigrants need a deportation lawyer.
• By “deportation lawyer,” I mean an immigration attorney well-versed in removal defense with a great deal of experience in Immigration Court proceedings.

Why Could You Be Placed In Detention?

Almost all immigrants in detention are there because they have had prior or current run-ins with the police, or because they have no legal papers such as green cards or current, unexpired status in the US (usually proven with valid visa). An immigrant can also be deemed a flight risk, a fugitive, or a threat to society. Most recently people are winding up in detention for not having appropriate paperwork. 

Detention is a way for ICE ( Immigration and Customs Enforcement) to ensure that an immigrant will appear before the Immigration Court.

What Are Your Rights in Immigration Detention?

No matter your immigration status, you have constitutional protections in the U.S. Here are key rights to know if detained:

• You Have The Right to Remain Silent: You are not obligated to answer questions about your immigration status or personal history. Politely state that you wish to remain silent until you speak with an attorney.
• You Have The Right to Legal Representation: You can contact a lawyer, and one should be provided if you’re facing removal proceedings. Legal counsel can significantly impact the outcome of your case.
• You Have The Right to Contact Family or Consulate: You’re entitled to notify family members or your country’s consulate about your detention. Consulates can offer support, including help with legal resources.
• You Have The Right Protection from Abuse: Detainees have the right to be treated humanely, free from physical or verbal abuse. Report any mistreatment to your attorney or advocacy organizations.

These rights are foundational, but exercising them effectively requires preparation and knowledge of the system.

What is Bail or Bond?

Bail is an amount of money that ICE can require to release someone from detention to ensure that they will show up to their court case, and follow through on the decision. It is called BOND in the immigration law.

Many immigrants in custody, however, cannot request bail because they are deemed a flight risk, or unsafe to society at large. One notable category of immigrants who cannot seek bail/ bond is the  “arriving alien.”

An arriving alien is someone who is:

1. Apprehended at the border seeking admission even if paroled (allowed to enter) into the US; or
2. Interdicted and brought into the US even if they are not seeking admission; or
3. A returning lawful permanent resident considered to be seeking admission

Which immigrants in detention qualify for immediate release?

• ICE may  “parole” (release) green card holders who do not have crimes that subject them to mandatory detention, or people who show “credible fear” of returning to their countries.
• While some jurisdictions have announced no interest in doing the federal government’s work, many immigrants detained by law enforcement are turned over to ICE for crimes committed within the US. These immigrants come to the attention of Immigration due to contact with the criminal justice system and they MAY be bail eligible.
• Many immigrants who are detained with no crimes (or minor offenses) prior to ICE custody will receive bond from an Immigration Judge after proper legal arguments are presented.
• Prosecutorial discretion really matters here.

However, some immigrants qualify for immediate dention.

In 1996, President Clinton signed a law which resulted in mandatory detention (without bail) for all immigrants who committed certain crimes, as well as those facing removal under other serious grounds.

Steps to Take if You or a Loved One is Detained

If you or someone you know is detained, swift action can make a difference. Follow these practical steps to navigate the situation:

1. Locate the Detainee: Use ICE’s Online Detainee Locator System or contact the nearest ICE field office to find out where the individual is being held. You’ll need their full name and A-number (if available).
2. Secure Legal Help Immediately: Contact an immigration attorney or a nonprofit like the National Immigrant Justice Center for free or low-cost legal aid. An attorney can assess the case, file motions, or request a bond hearing.
3. Gather Documentation: Collect any documents that support the detainee’s case, such as proof of legal status, employment records, or community ties. These can strengthen arguments for release.
4. Request a Bond Hearing: If eligible, ask for a bond hearing to seek release on bond while the case is pending. An attorney can argue for a reasonable bond amount based on flight risk and community ties.
5. Stay in Contact: Maintain communication with the detainee through approved channels, such as phone calls or visits, to provide emotional support and stay updated on their case.
6. Explore Release Options: Beyond bond, explore alternatives like parole or supervised release. Demonstrating strong community ties or humanitarian reasons can bolster these requests.
7. Appeal or Seek Advocacy: If detained unjustly, work with legal counsel to appeal decisions or contact advocacy groups to raise awareness about the case.

Taking these steps promptly can improve the chances of a favorable outcome, whether it’s release or a successful immigration hearing.

Tips for Avoiding and Addressing Detention

Preparation is key to minimizing the risk of detention or managing it effectively. Here are proactive strategies:

• Know Your Visa Status: Ensure your visa is valid and matches your activities in the U.S. For example, engaging in work on a tourist visa can lead to detention, as seen in recent high-profile cases.
• Carry Identification: Always have identification, such as a passport or driver’s license, to verify your identity if questioned by immigration officials.
• Understand Border Policies: Be aware of entry requirements, especially if traveling frequently across borders. Recent policies, like mandatory registration for stays over 30 days, can affect travelers.
• Build a Support Network: Establish connections with family, friends, or community organizations that can assist in case of detention. Share your travel plans with trusted contacts.
• Document Your Ties: Keep records of your ties to your home country or U.S. community, such as employment, family, or property ownership, to demonstrate you’re not a flight risk.
  

By staying informed and prepared, you can reduce the likelihood of detention and respond effectively if it occurs.

REMEMBER THERE ARE ALWAYS EXCEPTIONS TO EVERY LAW.

Not infrequently, court decisions are published, resulting in eligibility for changes in custody with payment of bond, in various jurisdictions.

While thousands of immigrants find themselves in custody every day, a consultation with an immigration attorney with great experience in handling detention cases may make all the difference in the world.