Immigration Detention Rules for an Undocumented Alien

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

Many undocumented immigrants live with the fear that one day they might 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 could 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 if you are arrested by immigration authorities, see What Happens When an Undocumented Immigrant Is Caught.

Why Non-Citizen Might Be Detained After an ICE Arrest

Not all undocumented immigrants are detained once they are caught by ICE. Because of its limited resources and resulting need to create enforcement priorities, 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.

Although the Trump Administration operated without such priorities, they have been reestablished by the Biden Harris Administration, in 2021.

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 might 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 an Immigration Court hearing.

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 the Deportation Officer for a Bond

One of the first things you should do when detained is to ask the deportation officer for a bond determination. A bond is an amount of money that someone you know will 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.

How high the bond is set at depends largely on your perceived level of 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 can help the deportation officer decide whether to grant you a bond.

After deciding whether to grant you a bond, the deportation officer must present you with a form called "Notice of Custody Determination."

You Can Ask an Immigration Judge for a Bond Redetermination

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 take an independent look at the officer's decision of whether or not to grant you bond. Additionally, if the deportation officer granted you a bond but it is too high for your family and friends to pay, you can ask an Immigration Judge to lower the amount.

When asking the judge to redetermine your bond, you will need to emphasize all of the factors mentioned above, such as family ties and employment history in the United States.

If you are denied bond, cannot post bond, or are subject to mandatory detention, you will remain detained throughout the entire removal proceedings.

You Are Allowed to Contact Family and Friends From Detention

If you are detained, you can, and should, contact 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 (or NTA; 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 and to locate you if you are moved. 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 that person 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 might be able to help you contact your family or help you find a lawyer.

Your Right to Be Given Immigration 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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