Immigration Detention: Your Rights When Arrested by ICE.

Title: Your Questions answered about immigration detention

• Thesis: People facing ICE detention have enforceable rights and time-sensitive choices that can protect their liberty, immigration status, and access to review.
• This section will clarify the legal reality of ICE detention, and offer practical tips for facing an immigration encounter.
• Here are the key questions and answers we cover:
• Is immigration detention civil or criminal?
• Do you have to answer questions?
• Do you have to stay with the agent?
• What should you do in case of a street encounter?
• Can ICE enter your home or arrest you in it?
• Do you have to do anything else?
• The content is derived from the provided facts: civil custody, right to remain silent, questioning freedom to leave, non-resistance, no entry without permission or judicial warrant.
• The tone is professional, straight, and empathetic (i.e. no-nonsense but understanding).
• The structure: H2 header, followed by the questions and answers.
• The length: About 350 words.
• The call to action: Contact Spodek Law Group for free and confidential evaluations.

How Do I Protect Myself From Being Placed in Immigration Detention, or How Can I Help a Family Member or Loved One?

Are there any ways to protect myself from being placed in immigration detention?

While there is no single way to protect yourself against all forms of detention, you can still protect yourself to a substantial degree. INA Section 236(a) gives ICE the authority to exercise its discretion, but this is not unlimited. INA Section 236(a) gives ICE broad authority to detain people pending a decision on removability, subject to the statute’s bond and release provisions; it does not limit detention to people who pose a substantial flight risk or danger to the community. However, many people may be eligible for release on bond, and identifying this option as soon as possible can be one of your most important first steps toward protecting your liberty.

How can I help a family member or loved one who is facing immigration detention?

The first step toward helping a family member or loved one who is facing ICE detention is to identify the person’s current location. While children are generally kept in distinct types of facilities, most detained adults can be located using ICE’s online detainee locator system. Once the individual is located, family members should seek the advice of a qualified attorney who can assess whether he or she is eligible for bond or other forms of release. At Spodek Law Group, we work with family members to develop tailored strategies for bonding, release, and representation throughout the removal process.

What are the chances that the immigration authorities will grant a bond request in order to avoid detention?

If your loved one is eligible for a bond grant, the chances of avoiding detention are typically very good. Bond eligibility under federal immigration law depends on a number of factors, including (i) the individual’s statutory custody category, (ii) criminal history, and (iii) other relevant individual circumstances. DHS may initially set a bond amount, and a detained person may seek bond redetermination before an immigration judge. If the amount is deemed excessive, detained individuals have the right to seek redetermination from an immigration judge.

What if my family member is not eligible for a bond?

If a detainee is not eligible for a bond, he or she may still be eligible for release without bond. In this scenario, DHS has the authority to release the individual without a monetary requirement; but DHS may impose certain conditions, such as supervision by the Immigration and Customs Enforcement, as well as other conditions deemed necessary.

What is an ICE detainer?

An ICE detainer is a request from ICE to a local law enforcement agency to keep a detainee in its custody for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, to permit ICE to assume custody. This occurs when the detainee is in local custody pending criminal proceedings.

When can someone facing ICE detention expect release?

If a detainee has been granted bond, he or she can generally expect to be released within 48 hours after payment is completed. If the detainee is released without bond, the timeframe is typically similar. However, ICE detainers can sometimes create additional delays in release.

How do I locate a loved one in immigration detention?

If your loved one is being detained by ICE, you may be able to find their location through the online detainee locator system hosted by ICE. While this only identifies detained adults, family members should promptly seek legal counsel to determine their options for challenging the detention and pursuing release.

When Can Expedited Removal, a Fear Screening, or a Waiver End My Immigration Review?

What is expedited removal and how can someone facing it avoid deportation?

Expedited removal is a process that can result in deportation without a hearing before an immigration judge for certain noncitizens detained during the immigration enforcement process. The most common way for a noncitizen to avoid expedited removal is to express a fear of return to their home country. If you tell the immigration officer that you fear returning home, the officer should refer you for an interview by an asylum officer. A positive credible-fear determination generally leads to removal proceedings before an immigration judge, although in some circumstances USCIS may retain the case for an asylum merits interview.

Does my loved one have any rights to avoid expedited removal in order to pursue an asylum claim?

If your loved one expresses a fear of returning to their home country, the applicable procedure generally requires referral for a credible-fear or reasonable-fear interview, depending on the basis for the expedited process. If they pass this interview, their case will then be scheduled to be heard before an immigration judge. Again, this is a time-sensitive process that requires immediate action. If you would like to learn more about protecting your loved one from expedited removal, please reach out to Spodek Law Group for a free and confidential evaluation.

Can my loved one’s prior deportation order be treated as a waiver of her right to an immigration judge review?

A prior final removal order may be reinstated without a new hearing before an immigration judge, but the noncitizen may have access to limited review, including reasonable-fear procedures where applicable. However, this may not always be the case. For example, it may be possible to challenge the validity of the prior removal order, file a motion to reopen the original removal proceedings, or file for a separate form of immigration relief. Again, this is time-sensitive and requires a skilled immigration attorney.

Which Convictions Make Detention or Removal More Likely?

Are there any specific criminal or national-security grounds for mandatory immigration detention?

Yes. INA Section 236(c) explicitly authorizes mandatory detention in the case of designated criminal and national-security grounds. When mandatory detention applies under INA Section 236(c), DHS generally must maintain custody during the removal proceedings, subject to applicable statutory and constitutional limitations. There is no legal category called “mandatorily detachable”; mandatory detention and removal apply only under the specific statutory provisions governing the individual’s case.

Is crossing the border illegally, on its own, grounds for immigration detention?

Crossing the border illegally is a federal crime. While this offense is distinct from those under INA Section 236(c), however, it still exposes the individual to federal criminal prosecution. Border-crossings are prosecuted in federal district court, where defendants can face significant fines, pretrial detention, and other penalties depending on the offense.

A federal criminal conviction may trigger removability only if it falls within a specific ground of removability under the INA; an unlawful-entry conviction does not automatically do so. Depending on the offense and the applicable statutory provisions, a conviction may lead to removal proceedings and may trigger mandatory detention, but neither result follows automatically from every federal conviction.

Depending on the circumstances, a criminal conviction can trigger both removability and mandatory detention. Depending on the offense and circumstances, a conviction for a crime involving moral turpitude or an aggravated felony may trigger removability, but mandatory detention applies only when the conviction falls within a category specified in INA Section 236(c).

What are the immigration consequences of a criminal conviction for noncitizens?

The immigration consequences of a criminal conviction depend on a variety of different factors. These factors include the specific offense that triggered criminal charges, the length of the sentence the offense carries, the defendant’s plea, the disposition of the case, and the nature of the individual’s immigration status. While there are dozens of potential factors that can lead to an immigration-related consequence, noncitizens will need to work closely with a skilled immigration attorney to make informed decisions.

What Can a Detainee Do When the Case Proceeds Without Appointed Counsel?

Is there a right to a government-appointed attorney in immigration proceedings?

While noncitizens have the right to consult with, obtain, and be represented by an attorney, they do not have the right to court-appointed legal representation when facing immigration proceedings. This is a key difference from the right to court-appointed representation in criminal cases. Immigration proceedings in the United States are civil, rather than criminal, and thus do not provide government-funded legal defense. Noncitizens must independently retain an immigration attorney if they want representation during their removal case.

What does an immigration attorney do in a removal case?

An immigration attorney will represent a noncitizen throughout all stages of their removal case. This includes representing a noncitizen during immigration-judge hearings and subsequent removal proceedings. They will handle discussions and submissions on the client’s behalf, and they will be available to advise the client throughout the process as necessary. At Spodek Law Group, we guide individuals facing deportation toward seeking relief whenever possible.

What if a detainee doesn’t show up to an immigration hearing?

If a detainee does not show up for an immigration hearing or for any other stage of a removal case, then they will generally be issued an “in-absentia removal order.” This means that the immigration judge may rule in the case in a manner that results in the noncitizen being removed in the absence of any legal defense or arguments on the noncitizen’s behalf.

Is it possible to contest an in-absentia removal order?

Yes. Depending on the circumstances, it may be possible to contest or cancel an in-absentia removal order. An immigration judge may rescind an in-absentia removal order on a timely motion to reopen if the failure to appear resulted from exceptional circumstances, or at any time if the person lacked proper notice or was in custody through no fault of the person. With this said, identifying these circumstances and meeting the requirements for cancellation is a time-sensitive process. As a result, detained individuals must promptly seek the advice of a skilled immigration attorney to protect their interests in their case.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.