It can be very stressful and frightening when a loved one is arrested by immigration officers and detained. Sometimes you can release your loved one so they can be home with you while you process their case.
If your spouse or relative is arrested by ICE, Customs and Border Protection (CBP), or any other federal agency, they may be detained or imprisoned in one of the nation’s 250 federal or private prisons while they fight their case.
Immigrant detention is a policy of the Department of Homeland Security (DHS) and the Department of Homeland Security has increasingly expanded the use of detention. The Department of Homeland Security generally has the discretion to release immigrants on bail or on parole, including the Alternative to Detention (ATD) program.
Surprisingly, most immigrants in immigration prison have no criminal record at all. In our experience, we have found that many people who live here illegally end up in detention because they are in the wrong place at the wrong time. Unfortunately, immigration prison can have horrific conditions. Organizations across the country reported abuses such as physical and sexual abuse, solitary confinement, overcrowding, limited or no access to family members or method of communication and inability to access lawyers. It is important to explore whether your loved one qualifies for bail as soon as possible.
Many of our clients contact us in a state of fear and panic because their loved one has been detained by the immigration authorities. Our top priority at Santos Khoury, LLP, is to get our clients out of immigration prison as quickly as possible and to develop a creative strategy to advocate for our clients in removal proceedings.
There are generally two stages at which a person can be released from detention: When ICE arrests them. or when an immigration judge has the power to release them (commonly referred to as a “custodial reconsideration hearing”).
What do I do when my loved ones are arrested?
Before you can set your loved one free, you must first locate them. An online detainee locator system is a good place to start, and it can be accessed here.
Immigrants who have been detained and placed on deportation are on a deportation highway. Therefore, time is of the essence! Hearings and appeals for detainees proceed much faster than for those who are not detained.
Hiring an experienced lawyer is crucial in detention cases. Many undocumented individuals do not realize that they still have very important constitutional rights, and because they are unfamiliar with the system, they may inadvertently give up some rights. For example, under the Fifth Amendment, undocumented individuals may assert their right to remain silent. If you are reading this blog, be sure to inform your loved ones (if they are not documented) that they have the right to remain silent (this is very important!). A large number of people end up in jail because they believe they have been asked to answer questions posed by law enforcement officials.
Just remember, when speaking with ICE, don’t say anything without your attorney present.
It is important to note that immigration officials can (and do) monitor detained illegal immigrants. Telephone calls, mail, and even discussions with other detainees can be monitored and used against migrants in court. However, all communications made to an attorney are protected by attorney-client privilege.
Now that your loved one has been located, the next step is to find out who is responsible for your loved one’s release.
Generally, ICE decides whether to release your family member based on certain legal or property rights factors. For people who qualify for release from detention, ICE may place an immigration bond of at least $1,500 after the person is arrested. The bond is set to ensure that the paroled individual will appear in court. If the person does not appear at the court date, the bail will likely be forfeited.
$1,500 is the lowest selectable bond amount anyone can pay. However, if the person paying the bail is in the United States illegally, ICE can place that person through deportation proceedings.
The bond amount set by ICE can be found in the document titled “Notice of Custody Determination” (Form I-286), the exact amount depends on whether ICE believes the person will attend their hearing i.e. whether or not they believe ICE that your loved one is a flight risk. Sometimes ICE will put a bond higher than $30,000. However, the bail amount can be challenged in court before an immigration judge.
In some cases, ICE will argue that the detained person is subject to “compulsory detention” – that is, the detainee is not eligible for release. In general, mandatory detention requires that four legal elements be met:
A person detained is “deportable” or “inadmissible” for a felony or drug offense (this requires complex legal analysis; it is not easy to fulfill);
the person must be taken “immediately into custody” when the person is released from normal custody (if the undocumented person has not been detained within a certain period of time, there may be grounds to challenge the detention);
Release from criminal custody must have been after October 9, 1998; And
A person detained must be in custody for an offense that leads to mandatory detention, at the time of release.
This means that if your loved one was previously arrested for an offense that led to mandatory detention and then arrested and detained for a separate offense that does not lead to mandatory detention, then ICE cannot claim that the person is in mandatory detention. ICE’s claims that your loved one is compulsory may be challenged in court.
If your spouse or family member is not subject to mandatory detention, it will be necessary for them to see an immigration bond attorney to prepare for a “Bond Hearing” before an immigration judge.
In the world of immigration, attorneys must prove a bond case. This requires that the attorney prove two things: (1) the person in detention is not a danger to society and (2) the person in detention is not an escape risk.
An immigration judge will evaluate the following factors when determining whether a person is at risk of flying:
whether the person has a fixed address in the United States;
2. Duration of residence in the United States.
3. Family ties (U.S. citizen or permanent resident family, spouse or children preferred);
4. Employment history (the length of employment indicates that the person is unlikely to run away);
5. Court appearance record (previously missed hearings reduce the chance of release);
6. Criminal history (including recent and seriousness).
7. Previous history of immigration violations.
8. Any attempts to escape pursuit. And
9. How to enter the United States.
In addition, the immigration judge will want to know if the detained immigrant qualifies for an immigration exemption and the possibility of obtaining such an exemption. For example, if the person in detention is married to a US citizen or has children who are US citizens, the chances of success may be more likely because the person may be eligible for an immigrant visa once the applications are processed by the United States Citizenship and Immigration Services (USCIS).
Also, just because someone qualifies for release does not necessarily mean that they will be released. Like most forms of immigration exemption, discretion plays a crucial role. This is why it is so important to have the best immigration attorney you can find.
A professional immigration attorney can assist you and your family through fully preparing for the hearing and gathering solid evidence and documents to present to the immigration judge. Some examples of evidence include witness statements; letters of support from family members, employers, or other important members of the community; Affidavits of support that demonstrate financial stability; and rental or property tax agreements.
Our attorneys meticulously craft statements to court that highlight the good morals of our clients. Our California immigration attorneys are able to do this because deportation defense attorneys spend the appropriate amount of time investigating and preparing each client’s case.
Specifically, our immigration lawyer uses investigative skills and legal analysis to convince an immigration judge that our client is a responsible member of society and devoted to his or her family, among other positive things. If our clients do not have a criminal history, deportation defense attorneys may demonstrate their respect for US laws (as an example). If the client has a criminal record, our immigration attorneys seek to prove that the client has been rehabilitated. Our clients work with our deportation defense attorneys to collect the strongest evidence possible prior to a hearing and to determine a strategy that increases the chances of release from immigration prison.
Ultimately, if the immigration judge does not agree to bail, the judge will only consider an additional follow-up application if “circumstances have changed materially since the advance bond decision.” The undocumented person may appeal the decision at the end of the hearing. The appeal must be submitted in writing to the Board of Immigration Appeals (BIA) within 30 days.
If your spouse or family member has been arrested by immigration authorities, schedule an appointment with one of our immigration bond attorneys today to get your family released from immigration prison.