What Happens When an Undocumented Immigrant Is Caught

Undocumented immigrants have certain rights when arrested by Immigration and Customs Enforcement (ICE).

One of the greatest fears that undocumented immigrants have is being caught by U.S. immigration authorities. Often, this fear stems from the belief that they will immediately be deported to their home country without the chance to say goodbye to family and loved ones. Other times, it is the fear of the unknown, as in, "What will happen to me if I am caught?"

The good news is that undocumented immigrants have certain rights when arrested by Immigration and Customs Enforcement (ICE). This agency is supposed to follow established procedures to help protect those rights.

ICE Makes an Arrest

There are a number of ways that an undocumented immigrant can come into ICE custody.

For instance, you may be arrested during a workplace raid. Or, you may be arrested at your home.

Keep in mind that if an immigration officer comes to your home, you do not have to let the officer in unless he or she has a warrant. Because of enforcement priorities and limited resources, ICE officers are more likely to look for you in your home if you have been convicted of a crime.

Additionally, the initial arrest of an undocumented immigrant may not necessarily be by ICE. You might be taken into custody by another law enforcement agency (“LEA”). State or local police are an example, most likely following a criminal arrest or even a minor traffic violation.

If you are within a hundred miles of the border; sometimes called the "Border Zone"; be aware that officers of U.S. Customs and Border Protection (“Border Patrol”) are out there looking for undocumented immigrants as well. They can subject you to a warrantless search or investigatory detention.

48-Hour Detainers After an Arrest

After you have been arrested, the LEA may decide to contact ICE if it believes that you are an undocumented immigrant. Or, ICE may contact the LEA if it wants to interview you regarding your immigration status, which most often happens when jails input detainee information into databases shared with ICE.

In such cases, ICE will file what's called a "detainer." This means that ICE cannot get to you immediately, but is asking the police or jail to hold you for an additional amount of time so that ICE can interview you at a later time to determine whether or not to place you into removal (deportation) proceedings.

Whether or not the LEA complies with the detainer can vary widely depending on the agency, since compliance is voluntary.

Under the law, the maximum amount of additional time that someone can be held on ICE's behalf is 48 hours. If ICE does not take custody of you within those 48 hours, the law says you must be released.

In some instances, law enforcement officers who do not understand or who disregard the law might try to keep you in custody for longer than 48 hours. This is considered unlawful detention, and some remedies exist, including filing a petition with the court to challenge your detention or seeking civil damages.

ICE does not always put everyone it arrests into custody. Sometimes it lets people, especially parents with young children, go home. This might include some type of extended monitoring, such as a mandatory ankle monitor and regularly scheduled check-ins with ICE. ICE will gather information about you and can still try to deport you, but at least you won’t have to spend any time in an immigration jail.

Placement Into Removal (Deportation) Proceedings

Once an undocumented immigrant is arrested, the ICE deportation officer will make an initial determination as to whether to place the person into removal proceedings and, if so, how to charge the person.

Most often, the charge will be unlawful entry into the U.S., overstaying a nonimmigrant visa, or one of various criminal grounds, if the person was previously arrested and convicted of a crime.

To initiate removal proceedings, the deportation officer will serve you and the immigration court with a Notice to Appear (NTA). If you are detained, ICE is required by law to serve you with the NTA within 72 hours of your detention, but some officers neglect to do this, or issue a blank or only partially filled-in NTA instead.

The Notice to Appear lists the immigration-related charges against you. You then have the right to see an immigration judge. The immigration judge does not work for ICE—he or she is part of the U.S. Department of Justice.

If you do not agree with the charges, you can fight them. Even if the charges are correct, you may still be eligible for relief from removal. For a discussion of possible defenses, see Possible Defenses to Deportation of an Undocumented Alien.

Removal proceedings can be lengthy, sometimes taking years to complete. As long as you do not have a prior order of removal, nor sign an agreement to your deportation or accept voluntary departure, you will not be immediately deported just because you are caught.

Release From Detention on Immigration Bond

If you are in immigration custody, one of the first things that the deportation officer will do is determine whether or not to allow you pay a bond ("bail") and if so, how much. A bond will allow you to be released from custody and return to your home in the U.S. while removal proceedings are pending.

When determining whether to grant a bond and what amount of bond to grant, the officer will consider two things:

A conviction on your record for certain types of crimes can make you ineligible for a bond. Certain categories of immigrants, such as arriving aliens, are also ineligible for bond.

If the deportation officer refuses to grant you a bond, you have the right to ask an immigration judge to reconsider this decision. 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.

An immigrant bond can range anywhere from $1,500 to $25,000, depending on the individual circumstances of the case and the individual immigration judge. (Also see, Can I Pay a Bond to Get a Relative Out of Immigration Detention?)

Contacting Family or Friends

An undocumented immigrant who is taken into custody by ICE has the right to call a family member, friend, employer, or lawyer to assist them.

When first detained by ICE, 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.

ICE is not required to detain you locally, so you may find yourself taken to a different state or different part of the U.S. entirely, and forced to make long-distance phone calls.

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