I was arrested on a minor charge, and while I was held, immigration officials from ICE asked to interview me. What are my rights?
ICE regularly sends officials to local jails to interview individuals they suspect do not have valid immigration status in the United States. No law obligates you to speak with ICE if they ask to interview you while you are in jail on a criminal charge. During these interviews, ICE will often try to get you to make statements that may be damaging to your immigration case. If you do speak with ICE, you should not sign anything that you do not understand.
I am currently in jail after being arrested on a minor criminal charge, and the criminal law judge on that case set my bail at $1. I have also learned that there is an “immigration hold” or a “detainer” on me. If I pay the $1 bail, will I be released?
No. ICE commonly places what is known as an “immigration hold” or a “detainer” on individuals held in state and local jails whom ICE suspects lack valid immigration status. The jail will then commonly hold the individual for up to 48 hours beyond their scheduled release date for ICE to come and pick them up. Even if you pay the $1 bond, it is very likely that ICE will pick you up from that jail and place you immediately in immigration detention, where you will likely be processed for removal.
You should speak with an immigration attorney before paying criminal bail. If you are moved from criminal custody to ICE custody before there is a final decision in your criminal case, you may get caught in a difficult situation where ICE will not bring you to criminal court, and the immigration judge will be unable to grant your immigration case because you have a pending criminal case. This is a frustratingly common situation. If this is happening to someone you know, contact Immigration Equality.
What is mandatory detention? How do I know if I am subject to mandatory detention?
U.S. immigration law requires that immigrants who have been convicted of certain crimes be detained without the possibility of being released on bond. In general, serious crimes involving firearms, drugs, or “crimes involving moral turpitude” (theft, fraud, etc.) are the kinds of crimes that subject an individual to mandatory detention.
For deciding whether someone is subject to mandatory detention, it does not matter whether the detainee was found guilty by a judge or jury or whether he accepted a plea.
Illegally re-entering the United States after a final order of removal is also grounds for mandatory detention.
Under U.S. immigration law, “aggravated felonies” comprise one category of criminal convictions that subject an immigrant to mandatory detention. These criminal convictions, which usually carry a sentence of a year or more of imprisonment, are more serious than mere misdemeanors. Aggravated felonies are defined by statute, and listed at 8 U.S.C. § 1101.
Another category of criminal convictions that may subject an immigrant to mandatory detention are convictions for “crimes involving moral turpitude.” (“CIMTs”). A CIMT is a crime considered to involve an element of immoral behavior, such as theft or fraud. Mandatory detention may be imposed on an immigrant sentenced to a year or more of prison for a single CIMT. Mandatory detention is also imposed on an immigrant convicted of two or more CIMTs regardless of the prison sentence associated with each conviction. This means that even two very minor theft crimes, such as stealing a loaf of bread and then taking some medicine, would result in mandatory detention.
Unlike aggravated felonies, CIMTs are not narrowly defined by statute, and so whether or not a particular conviction qualifies as a CIMT can vary widely depending on circumstances unique to the case. The question of whether or not a person’s criminal record makes him or her subject to mandatory detention can be a complex one, and so you should consult an immigration expert to determine if mandatory detention applies in your case.
I was detained by immigration authorities at the United States border. What are my rights?
Immigrants who are apprehended by immigration authorities as they attempt to enter the United States through a national border (or at an airport or seaport) are given a special classification under U.S. immigration law known as “arriving aliens.” Arriving aliens have no immediate legal right to enter the United States nor the right to a removal hearing before an immigration judge. Many arriving aliens are turned away and not permitted to enter the country. Those who are not turned away immediately are generally subjected to expedited removal proceedings, in which the government deports that person without the chance to see an immigration judge.
If you are an arriving alien who fears that you will be persecuted in your home country, you should express this fear to a deportation officer or other immigration official, and request a “credible fear” interview. You will be taken into detention, and an asylum officer will interview you in detention and make a determination whether or not there is reason to believe that you will be persecuted or tortured if you are deported. If immigration officials do determine that you have a credible fear of persecution, you will be placed into removal proceedings where an immigration judge will decide if you are eligible to remain in the U.S.
What is parole?
Although arriving aliens are nearly always detained by ICE upon arriving, those arriving aliens who pass their credible fear interview may request to be paroled from detention. To request parole, the person must submit to ICE evidence establishing 1) their identity, 2) that they present no flight risk (i.e. they will show up to all immigration court dates), 3) that they are not a danger to the community, and 4) that other factors weigh in favor of his being released on parole. ICE Form 71-012 lists various types of evidence that arriving aliens may use to demonstrate that they qualify for parole under these factors. Most commonly, ICE expects a passport or other government issued identity card, a notarized, sworn affidavit from a United States Citizen, and a bill or a piece of mail that lists the United State’s Citizen’s name and address. Even if a person is able to provide ICE with this evidence, ICE may still deny the parole request. For some arriving aliens, ICE may agree to parole the person only after they have paid a certain amount of money, which can sometimes be thousands of dollars.
What is a bond? Can I get out of detention on a bond? How much do I have to pay for the bond?
A bond is an amount of money paid as a guarantee that, if released, a non-citizen will appear in court for removal hearing. Generally, someone who is in the United States lawfully will have to pay the bond on the detainee’s behalf. If the detainee makes all scheduled court appearances and complies with all the court’s instructions, the bond amount will be returned at the end of the court proceedings.
Not all detainees are eligible for bond. Depending on your immigration status and history of criminal convictions, you may be subject to mandatory detention which means that you will have to remain in detention while your removal case is pending (See above question regarding mandatory detention).
A bond hearing is not the same thing as the primary removal hearing. If you are released from detention on bond, you must still make all scheduled court appearances and may still ultimately be removed from the United States. If you do not show up to court when you are scheduled to appear, the bond money will not be returned and you will be ordered deported.
In setting a dollar amount for bond, an immigration judge will consider how likely the immigrant is to show up to the removal hearing, as well as the danger he or she poses to the community. Some other factors used to determine bond amount include: local family ties; prior convictions or arrests; prior appearances at hearings; membership in community organizations; manner of entry and length of time in the United States; and financial ability to post bond. It is usually helpful for the court to see that you have loving family members in the courtroom when you appear in court to present your case for bond. Bond amounts vary from a minimum of $1500 to much higher amounts, depending on the individual’s personal circumstances and criminal history. Unlike criminal bail, detainees must generally pay the full bond or put up real estate as collateral.
Immigrants may bring a lawyer or legal representative of their choice to a bond hearing, but the government does not offer or provide any such representation, free or otherwise.
I have heard of people who get electronic monitoring ankle bracelets instead of being in detention. Am I eligible to obtain this?
Some detainees are released from detention under alternative-to-detention programs such as: electronic monitoring ankle bracelets, curfews, and regular in-person and telephonic reporting to a officer. Failing to comply with all the requirements of an alternative-to-detention program may result in mandatory detention and/or a deportation order. These alternative-to-detention programs are generally available to a very limited number of people. Individuals who apply for these programs will have their applications evaluated on a case-by-case basis. You can read more about ICE’s alternative-to-detention policies here.
My partner has been charged with “illegal reentry.” What does that mean?
According to U.S. immigration law, a person who has been previously deported is legally barred from entering the United States unless the person obtains formal permission beforehand. Those who enter the United States after being issued a final order of removal may be charged with the federal crime of illegal reentry. While most immigration violations are considered infractions of civil, rather than criminal law, the federal crime of illegal reentry is a notable exception.
If convicted of illegal reentry, your partner generally will serve a mandatory prison sentence without the possibility of being released on probation. The length of the prison sentence may vary between six months and two years, with longer sentences generally imposed on those immigrants with a history of criminal convictions or prior illegal reentries. There is no certainty that your partner would be prosecuted for illegal reentry, but it is a real possibility. Currently, illegal re-entry is the most commonly prosecuted crime in federal court.
My partner has served a six month sentence in federal prison after being convicted of illegal reentry. What happens next?
Upon completion of your partner’s sentence for illegal reentry, your partner is subject to mandatory detention, and will likely be taken into immigration custody. Your partner will likely be subjected to expedited removal proceedings, which means that an immigration official will take steps to deport your partner automatically without having the case heard by an immigration judge.
If someone fears that they will be persecuted if they are deported, they should express this fear to his deportation officer or other immigration official and request a “reasonable fear” interview. If the immigration officials who conduct this interview are convinced that this fear is reasonable, the immigrant will be put into special removal proceedings in immigration court. At these proceedings, an immigration judge may consider the individual's eligibility for withholding of removal and relief under the Convention Against Torture, but not for asylum.