Immigration Detention Rules for an Undocumented Alien

Whether you will be detained after apprehension by immigration authorities, and possibilities for release.

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Many undocumented immigrants live with the fear that one day they may be caught and held by immigration authorities (most likely, the agency called Immigration and Customs Enforcement, or ICE). If that happens, an important fact to be prepared for is that you may be placed into detention.

One of the most important things you can do to protect your rights is to be prepared for how to respond if you are detained, as explained in this article. This will help to ensure that your rights are protected and that you have the opportunity to fight your removal before an Immigration Judge.

For more information on the process that will take place if you are arrested by immigration authorities, see “What Happens When an Undocumented Immigrant Is Caught.”

Why You Might Be Detained

Not all undocumented immigrants are detained once they are caught by ICE. Because of its enforcement priorities and limited resources, ICE is more likely to release you if you have family in the U.S., do not have a criminal history, and appear to have a case for relief from removal.

ICE is more likely to detain you if you have a criminal history or a prior order of removal. If you have a criminal history, you may still be eligible for bond, as discussed below. If you have a prior order of removal, ICE can use the prior order to effectuate your deportation from the U.S. without your seeing an Immigration Judge again.

If ICE does not initially allow your release based on payment of a bond after when you are picked up, or if your family and friends do not pay the bond before you are taken to an immigration detention center, you should be prepared for what to expect once you are detained.

You Can Ask for a Bond and Bond Redetermination

One of the first things you should do when detained is to ask for a bond. The bond is money that you'll have to hand over in order to secure your release and compliance with the immigration process, as discussed below. The person posting the bond on your behalf must be in lawful status, typically either a lawful permanent resident or U.S. citizen.

Bond is largely based upon your danger to the community and the risk that you will not appear for scheduled court hearings. You should talk to the deportation officer assigned to your case about your particular circumstances, such as: a spouse or children who are dependent upon you, employment history, ties to the community, and if true, your lack of a criminal record. These factors may help the deportation officer determine whether to grant you a bond.

Once the deportation officer decides whether to grant you a bond or not, he or she must present you with a form called “Notice of Custody Determination.”

If the deportation officer refuses to grant you a bond, you have the right to ask an Immigration Judge for a bond redetermination. This means that the Immigration Judge will reconsider whether or not to grand you a bond. Additionally, if the deportation officer grants you a bond but it is too high for your family and friends to pay, you can ask an Immigration Judge to lower the bond. When asking the Judge to redetermine your bond, you will need to emphasize all of the factors mentioned above.

If you are denied without bond or cannot post bond, you will remain detained throughout the entire removal proceeding process. Additionally, if you are found to be subject to mandatory detention, you will remain detained throughout the entire process.

You Are Allowed to Contact Family and Friends

If you are detained, you can, and should, contact your family or friends as soon as possible. You have the right to make one free, local phone call. Afterwards, you are responsible for the cost of telephone calls, either by establishing an inmate account or by making collect telephone calls.

Let them know where you are being detained, your alien registration number (“A number”), and any bond information. Your A number should be listed on any paperwork, including the Notice to Appear (a charging document ordering you to appear for Immigration Court proceedings), given to you by ICE.

Your A number is extremely important for your loved ones to know, since it will help them to communicate with immigration authorities regarding your case. You should also give them any bond information, such as whether a bond was granted and if so, what the bond amount is.

If you have an immigration lawyer, ask your family to contact him or her immediately. You also have the right to speak to your home country’s consulate. If you wish to speak to your consulate, ICE should give you the contact information or help you get in touch. The consulate may be able to help you contact your family or help you find a lawyer.

Your Right to Be Given Paperwork That You Can Understand

It is important that you do not sign any document that you do not understand or agree with. You could be signing away key rights, such as the right to fight your deportation in Immigration Court.

ICE is supposed to provide you with documents in a language you understand or provide you with an interpreter to review the forms with you prior to you signing anything. If this does not occur, you should contact either an immigration lawyer or your country’s consulate prior to signing any document that you do not understand. Also, if you have an immigration lawyer, you should not sign any paperwork until you speak with your lawyer.

Risks That Your Statements in Detention Will Be Used Against You

Although being in immigration detention is scary, you should always be honest with the deportation officers that you speak with. Giving false information, such as a false name or date of birth, can come back to haunt you and can also make it more difficult for your family to locate you.

If you are unsure about what to disclose, especially if you have a criminal record or complicated immigration history, it is best to speak with an immigration lawyer before making any statements.

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