Getting a person released from an immigration detention facility is a complicated matter. At the very least, it’s more difficult and time-consuming than getting a person released from a state jail after arrest on criminal charges. Nevertheless, if your loved one is in ICE detention, do not assume he or she will be deported, and do not lose hope. The information provided below is intended to give you a basic understanding of your options. Of course, because every detainee’s case is different, it is advised that you consult with an experienced immigration attorney to make the best of a tough situation.
Before discussing how to get a person released, we should be clear on who may not be eligible for release.
Persons Not Eligible For Release From Immigration Detention
For the most part, these are persons who have serious criminal histories. Specifically, the Immigration and Nationality Act lists specific categories of criminals who are subject to “mandatory detention,” following their release from an arrest for particular crimes. The categories include:
- persons not lawfully admitted who have committed an offense covered in Section 212(a)(2) of the Act, which includes crimes involving moral turpitude, controlled substance violations, drug trafficking, prostitution, trafficking in persons, and money laundering
- persons lawfully admitted who have been convicted of multiple crimes involving moral turpitude, an aggravated felony, a drug crime (except for simple possession of small amounts of marijuana), certain firearms offenses
There are other categories of persons who are not eligible for release from immigration custody. Each category includes legal terms with complex definitions, and a person should consult with an experienced immigration attorney to decide whether any one applies. There are also exceptions to the rule — situations where even people with serious criminal pasts can be released from detention (e.g., when the conviction is very old, before 1996). Again, the best approach is to consult with an expert on criminal-immigration issues.
Besides persons with serious criminal histories, often immigrants with existing orders of removal will not be eligible for release. Typically, their options are limited to release on an order of supervision, and they are not eligible for an immigration bond.
Finally, persons who are arrested short after entering the United States illegally are not immediately eligible for release on bond. They are often placed in expedited removal proceedings, in which they must first demonstrate a credible fear of returning to their home countries before they can be released from ICE detention.
Ways To Get Released From Immigration Detention
There only a handful of ways that a person can be released from immigration detention: release on an immigration bond, release on parole, release on an order of supervision, and termination of proceedings.
Immigration bonds are granted by either Immigration and Customs Enforcement or by an immigration judge. Either party sets the bond to ensure the immigrant’s appearance at future court proceedings. So, for example, if ICE sets a bond of $5000, and the detainee’s family posts that amount at an ICE field office, then the person will be released. ICE will return the $5000 if the ex-detainee shows up for all his court hearings. If he misses a court hearing, then the $5000 wil be forfeited.
Sometimes ICE sets a bond with no action on the part of the detainee. This is rare, especially when the person detained has a criminal record, or has no clear possibility of getting relief from deportation. Usually, to get a bond from ICE, the detainee or his attorney can make a “request for redetermination of custody status.” (It is recommended that the person’s attorney make this request.) The ICE officer assigned to the case will then make a determination of the extent to which the person is a flight risk or danger to society, and set a bond accordingly. Sometime the ICE officer will decide to set the case at a “no bond.”
In any case, the person or his attorney can also request a bond from an immigration judge. Depending on the region of the country where the person is detained, requesting a bond hearing may be the fastest way to get a person released from immigration detention. Once a formal request for a bond is made, the immigration court will calendar a bond hearing. At the bond hearing, the judge will set a bond amount after making a determination of whether the detainee is a flight risk or danger to persons or property. The immigration judge considers many factors, on which evidence may be presented by either party. These include: the immigrant’s family and community ties to the United States, length and seriousness of criminal history, financial stability, history of immigration violations, length of residence in the United States, and history of appearances before courts.
Note: Even at bond hearings, you or your attorney may be able to negotiate a bond amount with Immigration and Customs Enforcement. When an agreement as to the bond amount is reached, the immigration judge will often accept this number.
Parole is only available to arriving aliens — persons who are seeking to be admitted to the United States at a port-of-entry. ICE has the power to grant or deny parole; it is not mandatory. In deciding whether to parole an immigrant into the United States, ICE will consider if there are “urgent humanitarian reasons” for doing so or if there is a “significant public benefit” to releasing the person.
Termination of Proceedings
Persons are automatically released from detention if they win their removal proceedings. That is, if ICE drops its attempt to deport the person, or the immigration judge decides that the person can stay in the country.
Release on Order of Supervision
This is usually available only to persons who have already been ordered removed from the United States, but cannot be deported for one reason or another. For example, if a person has an order of removal, but ICE is having great difficulty in obtaining the travel documents needed to deport him or her, then the person may be able to apply for supervised release.
Immigration detention is a complex area of the law, and it is always a good idea to consult with an immigration attorney before proceeding. Nonetheless, you can make more informed decisions by educating yourself as to the basic ways to get a person released from ICE detention.