The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
Last updated: June 3, 2020
The U.S. government has chosen to hold many foreign nationals in jails and prisons while their removal proceedings are pending. There are over 200 facilities around the U.S. holding tens of thousands of detained immigrants every day.
Immigration detention is cruel, unnecessary, and terrible for everyone. It is particularly dangerous for LGBTQ and HIV-positive people. LGBTQ people are dramatically more likely to be harassed, ostracized, and sexually assaulted than the general population. People living with HIV are provided substandard and inadequate healthcare. And many LGBTQ people are put into prolonged solitary confinement for up to 23 hours a day (known as administrative segregation) because the U.S. government has no way to keep them safe. Various reports have been issued (read GAO report and CAP report) documenting the ongoing mistreatment of our community. Even one day in detention can feel like an eternity, having lasting mental and physical health consequences. Immigration Equality fights every day to protect LGBTQ people in detention, and to liberate them from the unjust, unhealthy, and unlawful conditions of their confinement. The vast majority of LGBTQ people in detention are asylum seekers, who have come to the United States to ask the U.S. for protection. Let us treat them with humanity and with compassion.
a. Who Is Detained
ICE and CBP are detaining an increasing number of people. These include people applying for admission at the border, at an airport or at a seaport, people who have entered without inspection, immigrants with and without status who have been convicted of certain crimes, and immigrants who are considered deportable.
i. Arriving Aliens
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. This is called “Voluntary Return.” 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 someone is an arriving alien who fears that they will be persecuted in thier home country, they should express this fear to a deportation officer or other immigration official, and request a “credible fear” interview. The person will be taken into detention, and an asylum officer will interview them and determine whether or not there is reason to believe that they may be persecuted or tortured if they are deported. If immigration officials determine that they have a credible fear of persecution, they will be placed into removal proceedings where an immigration judge will decide if the individual is eligible to remain in the U.S.
Note that arriving aliens who express a fear of persecution in their countries of origin, who have been previously ordered removed will receive a “reasonable fear” interview. In this interview, the asylum officer will interview the detained person and determine whether there is a reasonable possibility that they would be persecuted on account of a protected ground or be tortured in their country of origin. This reasonable possibility has been interpreted to mean whether there is more than a 50% chance of persecution or torture.
As of today, if someone presents themselves at the southern border of the U.S. after July 16, 2019, they may be subject to the Third Country Transit Asylum Ban.
ii. Individuals in Criminal Proceedings or individuals Caught in ICE Raids
ICE frequently terrorizes immigrant communities by carrying out raids to catch people who may not have lawful immigration status. In addition to raids, 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. This is true whether or not the individual has been convicted of a crime. Even if the criminal law judge sets a bail as low as $1 and the individual pays the bail, because of the detainer, 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. Furthermore, even people not held in local or state jails, but who are in criminal proceedings, are targeted by ICE, regardless of whether or not they have been convicted of a crime. Some law enforcement agencies share information with ICE and ICE commonly waits outside criminal courts to apprehend and detain individuals.
ICE also regularly sends officials to local jails to interview individuals they suspect do not have valid immigration status in the United States. No law obligates detained persons to speak with ICE if they ask to interview someone while they are in jail on a pending or final criminal charge. During these interviews, ICE will often try to get people to make statements that may be damaging to their immigration case. If one does speak with ICE, they should ask for their immigration attorney to be present at the interview and they should not sign anything that they do not understand.
It is important to know that immigrants have certain rights. Please see our KNOW YOUR RIGHTS! Section for more information on what to do in case of an ICE Raid.
Once ICE apprehends individuals, it places them immediately in immigration detention, where they will likely be placed in removal proceedings. Should the person already have a previous removal order, ICE will allow the criminal proceedings to continue, and after the conclusion of the criminal proceedings and the completion of the court-ordered sentence, ICE will promptly process the individual for actual deportation to their country of origin.
Should someone have a final order of removal and is currently (or at risk of) being detained by ICE, they should speak to a qualified immigration attorney and contact their local immigrants rights group for assistance.
In addition, one should speak with an immigration attorney before paying criminal bail. If moved from criminal custody to ICE custody before there is a final decision in a criminal case, a person may get caught in a difficult situation where ICE will not bring them to criminal court, and the immigration judge will be unable to grant the immigration case because the person has a pending criminal case. This is a frustratingly common situation. If this is happening to someone, contact a qualified immigration attorney.
iii. Individuals 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 including those involving firearms, extreme violence, and drug dealing are the kinds of crimes that may subject an individual to mandatory detention. Illegally re-entering the United States after a final order of removal is also grounds for mandatory detention.
In addition, “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.” (CIMT). 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.
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 them subject to mandatory detention can be a complex one, and one should consult a qualified immigration attorney to determine if mandatory detention applies in their case.
According to U.S. immigration law, a person who has been previously deported is legally barred from entering the United States for up to at least five years (and maybe longer) 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, an individual 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 an individual 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.
b. Locating Someone in Detention
The Immigration and Customs Enforcement Online Detained Person Locator is an online database that provides information about where a person is being held by ICE.
There are two ways to search for a detained person using the online detained person locator:
- If the person’s Alien Registration Number is known, enter it into the locator along with the their country of birth. The Alien Registration Number (also known as the A-Number) is a unique 8 or 9 digit number assigned to all immigrants in removal proceedings and certain other immigrants who have previously applied for immigration benefits. The A-number is found on all correspondence from immigration to a person. If the A-Number has only 8 digits, add a zero in front of it for the system to recognize it.
- It is also possible to search by name. A detained person’s first and last names are required and must be an exact match (e.g., John Doe will not find Jon Doe or John Doe-Smith). If ICE’s records list a person’s name incorrectly, a search will only work if the detained person’s recorded name is used. It is also required to select the individual’s country of birth. It is optional to enter the detained person’s date of birth to further narrow the search.
The Online Detained Person Locator will indicate that an individual is “Not in Custody” if that person has been either released to the community, or deported from the United States within the past 60 days. The Online Detained Person Locator System cannot search for records of persons under the age of 18.
A list of detention facilities, their addresses, and public telephone numbers can be found here.
c. Visiting Someone in Detention
Only try to visit someone in detention if you are lawfully present in the United States. This does not mean that you must be a citizen or a green card holder, but you should have some form of currently valid immigration status at the time you visit a detained person. A detention center will likely deny your visit request unless you can show valid I.D. and offer proof that you are lawfully in the United States. More importantly, people without valid immigration status who try to visit someone may themselves be detained.
Different detention centers have different visitation policies. Commonly, detained immigrants are allowed a limited number of visitors during visiting hours on certain days of the week. Some, but not many, detention centers allow “contact visits,” where you are permitted to meet with the detained person in the same room and hug, hold hands, and have other limited physical contact with them. However, more often, visitors are permitted only “non-contact” visits in which they must talk through plexiglass windows, or by videophone. Find out more about a detention center’s visitation policy and hours by going to the ICE website (https://www.ice.gov/detention-facilities) and searching for the detention facility you would like to visit. There will be a link to the ICE web page for that specific facility. The web page will contain information about hours of visitation and types of visitation available. However, contact the detention center to find out which type of visit is allowed, check the hours of visitation, and other requirements the detention facility might have for the visitors to make sure the information on the ICE web page is up to date.
One common visitation policy at detention centers is to schedule visiting hours for detained people based on the first letter of their last name. Before visiting someone in detention, make certain you know the official name under which the person is registered at the detention center. If the detained person used a different name or if the detention center misspelled their name in the computer, you may be denied access if you visit on a day that the officers say does not match their name.
Detained LGBTQ immigrants who fear sexual or physical violence in detention are commonly placed in a form of solitary confinement known as “administrative segregation” or “protective custody,” either automatically or by the request of the LGBTQ person. Transgender detained immigrants are especially likely to be housed in “administrative segregation” because ICE officials do not know how to safely house them in the general population. Detention centers generally place further restrictions on visitation for detained immigrants in administrative segregation, which can severely limit how often and for how long someone will be allowed to meet.
d. Detention Conditions
It is Immigration Equality’s position that no LGBTQ or HIV-positive individual should be held in immigration detention. LGBTQ immigrants should be immediately paroled into the country. Detained LGBTQ immigrants are at increased risk of sexual and physical violence and also do not receive proper medical treatment. Any incidence of abuse, harassment, or mistreatment should be reported immediately.
i. LGBTQ Immigrants
LGBTQ immigrants in detention are at increased risk of sexual and physical violence. In fact, LGBTQ immigrants held at federal detention centers are 97 times more likely to be sexually assaulted than other detained persons, according to an analysis by the Center for American Progress. Transgender women are frequently housed with men, which increases the risk of violence and abuse towards them. Additionally, LGBTQ immigrants who express fear of or report abuse are often put in solitary confinement “for their own protection” for up to 23 hours a day. Such extended periods of solitary confinement can have extremely detrimental effects to a person’s mental and physical health. Moreover, LGBTQ immigrants are often not able to easily access medical resources or to consult medical professionals who are sensitive to the special health needs of LGBTQ individuals.
Because ICE detention facilities either segregate transgender women or house them by sex assigned at birth, they are often singled out for abuse when housed with the general population. For transgender women, this means a heightened risk of sexual assault and harassment in detention.
Transgender women are among those most routinely subjected to solitary confinement in immigration detention. They commonly lack access to services and programs, external support systems, or any human interaction. Their extraordinary isolation acts as a barrier to access counsel, which deprives them of representation that could help them put an end to their solitary confinement. It is psychologically damaging and exacerbates the fear and anxiety felt by a sometimes already traumatized group.
Another indignity of housing transgender women in male facilities is that they are often not given appropriate undergarments. When an individual enters immigration detention, they are stripped of their own clothes and given jumpsuits, socks, and underwear and provided with some personal hygiene products like soap and a towel. However, many transgender women may need a bra, but are often told they cannot get one or that they must pay for the bra themselves. Similarly, transgender men who ordinarily bind their chests may not be permitted to do so.
ii. HIV-positive Detained Individuals
Individuals who are living with HIV and are being detained in immigration detention centers are facing a critical challenge in obtaining proper treatment. HIV care is woefully inadequate in most detention centers and the substandard healthcare ICE provides puts the lives of HIV-positive people in jeopardy.
Furthermore, when someone arrives to the United States and asks for asylum, their HIV medication is confiscated by the U.S. government, and it can take many days or weeks before they are given access to proper treatment. Many HIV-positive people must receive antiretroviral therapy regularly and at fixed time intervals. Even a slight deviation from the prescribed antiretroviral regimen can have a devastating impact on a person’s health. Clinical studies demonstrate that “when the rate of adherence to HIV medication is as high as 95%, the viral suppression rate approaches 78%.” However, a minor reduction in adherence to HIV medication, for example, reducing adherence to 80 percent, causes the viral suppression rate to plummet to 20%. “The adherence rate of medication should be maintained at 95% or above to optimize antiviral outcomes and enhance viral suppression.”
Not only is adherence to medication critical for a detained HIV-positive person’s health, but adhering to a consistent HIV treatment plan prevents development of drug resistant strains of HIV. In short, this is more than a private health concern. It is equally alarming that ICE frequently changes medications they provide to detained people living with HIV without any explanation. This can have long-lasting consequences on the health of people living with HIV.
iii. Filing a Complaint
A detained person should report any incident of abuse, harassment, or discrimination to detention staff immediately. If possible, it may be helpful to create a log or record of the times the mistreatment occurred, and exactly what happened each time. If a dispute arises as to what actually happened, this log may be helpful as evidence to show that the detained person’s rights were violated.
Similarly, a detained person should always put requests for medical treatment and visitations in writing so as to create a written record of all requests. This may be helpful as evidence to show that the detained person’s rights were violated.
If a detained person feels unsafe reporting the mistreatment to detention staff (or if the mistreatment comes from detention staff themselves), another resource to use is the toll-free ICE hotline at 1-888-351-4024 (https://www.ice.gov/contact/detention-information-line ). This phone connects directly with ICE Headquarters.
A detained person or their representative should also file a complaint with the Department of Homeland Security Office of Civil Rights and Civil Liberties (OCRCL). The OCRCL will review the complaint, and may launch an investigation to determine if any violations have occurred. If the OCRCL makes a finding that the detained person’s civil rights have been violated, the OCRCL can make formal recommendations to provide relief to the individual and institute a change in policy. (See below for more information).
Immigration Equality also periodically files complaints to combat abuse to detained people. Please contact our legal staff if you or someone you know is experiencing problems in detention related to being LGBTQ or HIV positive. Your input is critical in ensuring that our advocacy efforts to make detention safer for our community are successful.
In order to file a complaint with the Office of Civil Rights and Civil Liberties, either use the official OCRCL complaint form, or write a letter describing the mistreatment. However, it is probably best to do both. The instructions and complaint form are online. In addition to a written description of the specific circumstances, the complaint should be accompanied with contact information, relevant documents, and a summary of other steps taken. If submitting a complaint on behalf of a loved one, also submit that person’s written permission for the OCRCL to share information with you.
Email the completed form to: CRCLCompliance@hq.dhs.gov, or mail it via U.S. Postal Service to:
Department of Homeland Security
Office for Civil Rights and Civil Liberties
245 Murray Lane, SW
Building 410, Mail Stop #0190
Washington, D.C. 20528
e. Transfer of Detained Individuals
i. If ICE Is Transferring Your Loved One to a Detention Center Far Away from You
In an agency-wide internal memo dated January 2012, ICE clarified its policy regarding transfers of detained people, explaining that absent special circumstances detained immigrants with “immediate family” in the area of the detention center should not be transferred to a facility far outside of that area. The memo expressly defines “immediate family” to include: “mothers, fathers, step-parents, foster parents, brothers, sisters, stepbrothers, stepsisters, biological and adopted children, stepchildren, foster children, and spouses, including common-law marriage or civil unions and cohabitating domestic partnerships legally recognized by a state or other governmental entity (e.g. District of Columbia, Puerto Rico, Guam).”
If you have a spouse or domestic partner who is detained, you may wish to let their deportation officer know of your relationship. You may also wish to ask the deportation officer to keep this information confidential, as some LGBTQ people worry about their safety if they are “outed” in immigration detention.
ii. If a Detained Individual Wishes to Be Transferred to Another Detention Facility
A detained person or their attorney may request a change in venue, and an immigration court may grant or deny the request. In deciding whether or not to grant the change in venue, the court may consider many factors, including the location of family, the attorney working on the case, or witnesses and other evidence. If most or all of these things are in a different state or city, the court is more likely to grant the change in venue.
To obtain a change in venue, a detained person or their attorney must submit a motion to the court that lists the address of where they are detained, and the reason why they are seeking the change in venue. Some judges regularly grant these motions and others regularly deny them.
In practice, absent extremely compelling evidence, such as urgent humanitarian and medical concerns, an immigration court or ICE is unlikely to grant a request to be transferred to another detention facility.
f. Release from Detention
Detained individuals who are not subject to mandatory detention may apply to be released from detention in several ways:
Although “arriving aliens” are nearly always detained by ICE upon arriving, those who pass their credible fear interview may request to be paroled from detention. In addition to arriving aliens, any detained individual not subject to mandatory detention may request to be released on parole. 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 their 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 States 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.
Even if ICE grants parole, they may require that the individual report to ICE periodically and that the individual wear an electronic ankle monitoring device at all times. Additional restrictions may also be placed on the individual’s liberty.
With the exception of “arriving aliens” and people subject to mandatory detention a detained individual may request that ICE release them from detention on bond if ICE denies their parole request. 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 detained individual’s behalf. If the detained individual 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.
In order to apply for bond, an individual must submit a bond motion to the immigration court. If the detained individual is eligible for bond, the Immigration Court will then set a bond hearing. A bond hearing is not the same thing as the primary removal hearing. If a detained person is released from detention on bond, they must still make all scheduled court appearances and may still ultimately be removed from the United States. If they do not show up to court when they are scheduled to appear, the bond money will not be returned and they 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 they may or may not pose to the community. Some other factors used to determine bond amount include: domestic 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 they have loving family members in the courtroom when they appear in court to present their case for bond. Bond amounts vary from a minimum of $1,500 to much higher amounts. Unlike criminal bail, detained immigrants must generally pay the full bond or put up real estate as collateral.
Immigrants may bring a lawyer or accredited representative of their choice to a bond hearing, but the government does not offer or provide any such representation.
iii. Alternatives to Detention
Some detained individuals are released from detention under alternative-to-detention programs such as: electronic monitoring ankle bracelets, curfews, and regular in-person and telephonic reporting to an ICE officer. Failing to comply with all the requirements of an alternative-to-detention program may result in being re-detained. While alternative-to-detention programs are remarkable effective and cost efficient, ICE generally offers them to a very limited number of people. Individuals who apply for these programs will have their applications evaluated on a case-by-case basis. Read more about ICE’s alternative-to-detention policies here.
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.