Ins & Outs of Immigration Detention

By Attorneys Lorella T. Hess & Nancy E. Miller

CAJ0024AICE raids are in the news frequently as the agency ramps up enforcement efforts against aliens who may be removable from the4 United States.  Although official publicity emphasizes efforts to round up non-citizens with criminal records, ICE also makes “collateral arrests” of many otherwise law-abiding residents without proper immigration status.  A raid that originally targeted one person could result in the arrests of many others who were just in the wrong place at the wrong time.  The new enforcement priorities emphasize arrest and removal of anyone not legally authorized to remain in the United States, rather than focusing on people who pose a threat to public safety.

The Trump administration plans to dramatically increase the numbers of people held in ICE detention and ultimately deported, over and above the record high levels reached for both categories during the Obama years.  This has led to grave concern among non-citizens and their loved ones throughout the country.  Anyone who is out-of-status for any reason (or whose continued status is endangered—for example, by a criminal charge), is vulnerable to arrest and deportation.  Those who have already been ordered removed by an immigration judge, and those who have been in the U.S. for less than two years, are likely to go into expedited removal proceedings that could have them deported within days or even hours of their arrest.  For most people, however, the legal process takes much longer.  In these cases, whether a non-citizen is held in ICE detention or released on bond can make a big difference in their family’s life for months or even years.

While some non-citizens are subject to mandatory detention, a knowledgeable immigration attorney will analyze whether one is entitled to a bond hearing and, if so, pursue that relief to help non-citizens either avoid detention or get released as soon as possible.  The goal will be to prove that they do not pose a danger to society and will appear in court for their future hearings.  These are the same issues an Immigration Judge will consider at a formal bond hearing on whether to release an alien who is already detained.  Even if your loved one is already in custody, an experienced immigration attorney may be able to help secure their release.

The alternatives to detention for which non-citizens may qualify will vary with their current immigration status and the reasons why they are deportable.  In almost every case, avoiding detention has important advantages: it keeps the non-citizen’s family together while awaiting their day in court, protects the non-citizen from the physical and psychological hazards of ICE detention, and enables the non-citizen to more effectively help with their defense against removal from the United States.

Most non-citizens held by ICE in California are entitled to a bond hearing after six months in detention.  However, if someone is transferred outside the Ninth Federal Judicial Circuit, that protection could be lost.  Regularly visiting a detainee may help to keep the person held locally, because it shows ICE that the non-citizen has friends or family in the area.  State lawmakers have acted to ensure that, whatever happens with construction and expansion of detention centers at the federal level—and big spending increases for that purpose are planned–California’s ICE detention capacity will not be allowed to grow.  This could lead to more Californians being detained out of state.  However, the state’s goal is to encourage alternatives to detention for more California residents.

For some detainees, unfortunately, there is no alternative to detention.  Federal law requires that non-citizens whose criminal histories meet certain criteria must be detained by ICE pending the outcome of their removal proceedings.  These detainees, who may include green card holders as well as other non-citizens, are simply not eligible for release until the final resolution of their case.  The courts try to expedite hearing schedules for an alien who is detained, but someone—even someone who has already won a decision in court—could still be held in ICE detention for months or even years without any hope of release until all appeals are exhausted.

People subject to mandatory detention are those who:

  • Committed certain crimes; and
  • Were taken into ICE custody when they were released from criminal custody.

Not all crimes which can make an alien deportable also require mandatory detention.  It is best to consult a knowledgeable immigration attorney as soon as possible if your loved one is taken into ICE custody, even if you are told there can be no bond because they are subject to mandatory detention.