What Happens When an Undocumented Immigrant Is Caught

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

By , Attorney · Case Western Reserve University School of Law

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 found out and arrested?"

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.

When and Where ICE Might Make an Arrest

There are a number of ways in which an undocumented immigrant can come into ICE custody. For instance, someone might be arrested during a workplace raid. Or, ICE might show up to make an arrest at someone's home.

Keep in mind that you do not have to let in an immigration officer who comes to your home without a warrant. In almost all cases, ICE agents do not bring warrants signed by a judge. However, if you leave your home voluntarily or invite an ICE officer into your home, that officer can arrest you.

ICE agents often stake out the homes of foreign persons using unmarked vehicles (often a white van) in order to learn the schedule of the occupants. ICE officers also use various ruses, such as announcing themselves as police officers in order to encourage people to let them in the house, or claiming to be looking for someone else. These tactics, although extremely misleading, are nonetheless legal in most cases. The best option is not to answer the door unless you are sure of who it is.

There are a few locations where you are unlikely to encounter ICE, referred to as "sensitive locations" according to its enforcement priorities. These include, for example, schools, health care facilities, places of worship, including churches, synagogues, mosques, and temples, funerals and weddings, and public demonstrations, such as rallies or parades.

ICE Isn't Always the Agency to Apprehend an Undocumented Immigrant

The initial arrest of an undocumented immigrant might 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 100 miles of the U.S. border; sometimes called the "Border Zone," be aware that officers of U.S. Customs and Border Protection ("CBP") are out looking for undocumented immigrants as well. They can subject you to a warrantless search or investigatory detention, and place you in expedited removal proceedings, which are fast tracks to deportation without a hearing. This article does not focus on expedited removal procedures, which follow a different and much shorter timeline.

48-Hour Detainers After an ICE Arrest

After a non-citizen has been arrested, and appears to be undocumented, the LEA might decide to contact ICE. Or, ICE might contact the LEA if it wants to interview someone regarding 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 the person immediately, but is asking the police or jail to hold them for an additional amount of time so that ICE can later schedule an interview to determine whether or not to place the person into removal (deportation) proceedings.

If you fear that ICE might try to pick you up, do not volunteer information to the LEA. Any information you volunteer can later be used against you in removal proceedings. However, if you lie about your immigration status, you could face heavy penalties down the line.

Whether or not the LEA complies with the ICE 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. However, in practice, arguing for release often simply results in ICE coming to pick you up anyway.

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 a federal 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 involve 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 in 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 an NTA within 72 hours, 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, but rather is part of the U.S. Department of Justice. However, if you already have an outstanding removal order, then you may be deported without an opportunity to go before a judge.

If you do not agree with the charges, you can fight them. Even if the charges are correct, you might still be eligible for relief from removal. 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.

ICE Transfer to Immigration Detention

After being taken into custody by ICE, you will be placed into a holding facility. Some detention facilities are directly operated by ICE, or their private contractors. Other facilities are subcontracted to local prisons and jails.

When first detained by ICE, you have the right to make one free, local phone call. You probably will not be able to look up a phone number, so make sure you memorize the phone number to your attorney or trusted friend, now. After that first call, you are responsible for the cost of any additional telephone calls, either by establishing an inmate account or by making collect telephone calls.

ICE is not required to detain you locally, so you could find yourself taken to a different state or different part of the U.S. entirely.

Once you are placed into ICE custody, you are not required to sign any documents. If you do not understand what a document says, do not sign it; you could forfeiting your right to an immigration hearing.

You have the right to request an interpreter. You also have the right to contact your home country's consulate. When you call, give your name, alien number ("A-number"), where you were arrested, where you are being held, and the name of your deportation officer. The consulate might be able to refer you to an immigration attorney.

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. ICE usually assigns a bond amount by 2:00 pm on the day of someone's arrival. A bond will allow you to be released from custody and return to your home in the U.S. while removal proceedings are pending.

Not all immigrants are eligible for a bond. When determining whether to grant a bond and what amount of bond to grant, the officer will consider two things:

  • the risk that you will miss your immigration hearings, and
  • the danger to the community if you are released.

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. Because bond hearings are separate from deportation proceedings, you should request a bond hearing as soon as possible, at your first immigration hearing (Master Calendar or scheduling hearing).

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?)

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