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Release from Detention

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 legal 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.

Also if you do speak with ICE and you fear returning to your country, you should tell ICE of your fear of return as soon and as often as possible.

I am currently in jail after being arrested on a minor criminal charge, and the 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 who ICE suspects lack valid immigration status. The jail will then commonly hold the individual for up to 48 hours beyond their scheduled release for ICE to come and take that individual into custody. 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 Catch-22 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.

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 be 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, and can be an act as minor as turnstile jumping.  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.

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.

If the government alleges that you are subject to mandatory detention, you are entitled to an individualized hearing before an Immigration Judge to determine whether you are properly subject to the mandatory detention statute at 8 U.S.C. 1226(c). See In re Joseph, 22 I. & N. Dec 799, 1999 WL 339053 (B.I.A. May 28, 1999). This hearing is sometimes known as a “Joseph” hearing.  To win this hearing, a detainee must adequately prove that she is:
1) a U.S. citizen; or that she
2) was not convicted of the crime for which the government claims she is
subject to mandatory detention; or that
3) the crime for which she was convicted is not a Crime Involving Moral
Turpitude (“CIMT”) or an Aggravated Felony; or
4) that the only two CIMTS for which she was convicted arose out of a single scheme.

I was detained by immigration authorities at the airport, immediately upon arriving in the United States.  What are my rights?

Immigrants who are taken into detention from a port-of-entry, most commonly an airport, are generally classified under U.S. Immigration law as “arriving aliens.”  Arriving aliens have no legally recognized right to enter the United States and are generally turned away at the port-of-entry.  Arriving aliens who are not turned away immediately are generally subjected to expedited removal proceedings, which means that the government will try to take steps to automatically deport you without the chance for a hearing by 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.  Immigration officials will then interview you and make a determination whether or not there is reason to believe that you will be persecuted if deported to your home country.  If immigration officials do determine that you have a credible fear of persecution, you will be placed into removal proceedings where an immigration judge may determine your eligibility for asylum, withholding of removal, and relief under the Convention Against Torture.

According to current ICE guidelines, arriving aliens should receive a parole interview from their deportation officer within seven days of being determined to hold a credible fear of persecution if deported to their home country.  At this parole interview, an ICE official should determine if the arriving alien is eligible to be released from detention by assessing whether the arriving alien can adequately prove 1) his identity, 2) that he presents no flight risk (i.e. he will show up to all his court dates), 3) that he is not a danger to the community, 4) and that other factors weigh in favor of his being released on parole.  Arriving aliens do not have a right to seek parole from an immigration judge.  If ICE denies the parole request, there is no appeal.

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 her 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 deportation hearing on the actual case.  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, among others.  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 property as collateral.

A judge can also release an individual on his or her own recognizance without having to pay bond.  A judge may choose to release someone on recognizance if he or she lacks the money to post a bond but is very unlikely either to pose a danger to the community, or to skip a court appearance.

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.

What is parole?  How is it different than a bond?

If you are subject to mandatory detention, an immigration judge does not have the legal power to set a bond amount for you to be released.   At this point the only way you will be released from detention is if you request and are granted parole by Immigration and Customs Enforcement on humanitarian grounds.  For those immigrants whose detention causes extraordinary hardship, parole can sometimes allow for release from the detention center while the individual’s immigration case is pending.  Parole is not relief from removal, and those granted parole may still be ultimately subject to removal by an immigration judge.
While there is no specific list of scenarios that qualify a person for parole on humanitarian grounds, those whose circumstances involve extremely grave illness or particularly unusual hardship on a dependent may wish to consider applying for parole on humanitarian grounds.   In the past, Immigration Equality has had success obtaining parole for immigrants with severely compromised immune systems due to an AIDS diagnosis. People who are elderly, pregnant, or have served in the U.S. armed forces may also qualify for parole.
In addition to these special circumstances, people applying for parole must also present sufficient evidence that they are neither a flight risk nor a danger to the community.

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 reporting to a detention and removal 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 obtained 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 punishable by up to two years in federal prison.

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. Recent ICE directives suggest that federal prosecutors are more likely to bring illegal reentry charges also against those immigrants who either have a history of criminal convictions or prior illegal reentries. 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 automatically deport him based on his prior removal order without having the case heard by an immigration judge. The expedited removal process, which is sometimes also called reinstatement of removal, means that except in limited circumstances, your partner can be deported without the chance to legally object to the deportation.

If your partner fears that he will be persecuted in his home country, he 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, your partner will be put into special removal proceedings in immigration court. At these proceedings, an immigration judge may consider your partner’s eligibility only for withholding of removal and relief under the Convention Against Torture. Note that under U.S. immigration law, an immigration judge may not consider an asylum claim from a person convicted of illegal reentry.

I believe I am a citizen of the United States, and I believe I am being wrongfully detained.  What are my rights?

If you are a United States citizen, either by birth, naturalization, or by deriving citizenship from your United States citizen parents, the United States has no legal authority to keep you in immigration detention.  You should call ICE’s 24 hour hotline at (855) 448-6903 immediately to let ICE know.  This hotline is open 24 hours a day, 7 days a week, and ICE personnel will be able to speak to you in either English or Spanish.    Several other language translation services are also available.

If your parent or parents naturalized while you were a minor and you were in the United States with lawful permanent resident status at the time,  it is possible under limited circumstances that you may have unknowingly obtained derivative citizenship through them.  You should consult an immigration attorney if you believe you may have derivative U.S. citizenship.

While ICE also recommends this hotline as a resource for immigrants in detention who have been victims of a crime, callers should remember that no law prevents ICE from using statements you make during this call against you in your deportation case.