Immigration: Detention & Custody

Immigration and Customs Enforcement (ICE), an agency under the Department of Homeland Security (DHS), is responsible for managing the U.S. immigrant detention system.

Detention standards

ICE has put in place a set of National Detention Standards (NDS). These standards are intended to set forth rules for how immigration detainees are to be treated differently than criminal defendants. The standards are intended to improve medical and mental health services, increase access to legal services, improve communication with detainees who speak little or no English, improve the process for handling complaints, and increase recreation and visitation. In 2016, ICE revised a number of the previously issued standards ensuring alignment with both previously enacted policies and federal legal and regulatory requirements. However, in 2017, President Donald Trump decided to close the office that developed and maintained the NDS and stopped including the standards in new jail contracts.

Enforcement and removal

In addition to the NDS, ICE has implemented Enforcement and Removal Operations (ERO) to help enforce the nation’s immigration laws in a fair and effective manner. The stated mission of ERO is to identify, arrest, and remove aliens who present a danger to our national security, as well as those who enter the United States illegally. ERO has 24 field offices throughout the United States. ERO oversees detention facilities and manages the movement of aliens through various immigration proceedings. ERO also works with U.S. Attorney offices to facilitate criminal prosecutions. To ensure the health of those being detained, ERO facilitates physical and dental examinations.

Detention prior to issuance of a removal order

Individuals who are suspected of entering the United States illegally can be arrested by either local or federal law enforcement agents before being transferred to ICE custody. An individual who is in the country illegally can be arrested by local police for any infraction, from traffic citations to major crimes. Local police may share arrest information with ICE agents if they believe an arrestee is undocumented. When that happens, ICE has authority to file a detainer (known as an ICE detainer or “immigration hold”) asking the police to hold the individual for 48 hours after his or her release date. The purpose of the hold is to allow time for ICE agents to decide whether to take custody of the detainee and initiate deportation proceedings. Once the 48-hour period expires the individual must be released unless a removal order has been issued; however, he or she can be taken into custody by ICE in the future.

Detention at airport after traveling abroad

One of the most common ways non-citizens are detained by immigration agents is at the airport after traveling abroad. Returning from abroad requires each individual to go through customs, and if the individual is a non-citizen, he or she must go through immigration inspection. At that time, the inspection agent may see in a person’s electronic history that they have a criminal record or a prior order of deportation. There is no statute of limitations in immigration law, which means an individual can be detained and deported for a conviction that occurred many years prior. If you are a non-citizen who has a criminal conviction or deportation order, you should consult an attorney before traveling abroad.

Detention following arrest

With the current administration doing everything it can to detain and deport as many illegal immigrants as possible, ICE agents are stationed in both prisons and jails across the country in states such as Arizona, California, Georgia, and Texas. When an individual is arrested, they are processed through the immigration detention and deportation system. If you are a non-citizen or do not have identification on you, this process will likely include an interview with ICE agents regarding your immigration status. If the individual is a non-citizen, he or she may be placed into removal proceedings. First, ICE agents will request a detainer, the request that the receiving law enforcement notify DHS before the non-citizen is released. It also serves as a request to keep the individual detained in criminal custody until ICE makes a determination as to whether or not to transfer the person to immigration detention to be placed into removal proceedings.

Rights of Detainees

If you find yourself detained by immigration agents, it is important to remember that you still have certain legal rights. A detainee has the right to remain silent. A detainee does not have to admit to his or her lack of legal immigration status. It is ICE’s burden to prove a detainee lacks legal immigration status or has violated his or her immigration status. A detainee has the right to contact an attorney and be visited by that attorney while in detention. Although detainees have the right to an attorney, the United States government will not pay or provide that attorney for the detainee. The detainee must find and hire an attorney on their own. Detainees also have the right to contact their consulate. The contact information for the consulate will either be posted in the detention facility or provided by the deportation officers.

Custody

After a detainee has been ordered by an immigration judge to be deported, there is a limited period of time in which the detainee can be physically removed from the country. Generally, the government must remove a detainee within six months. If ICE fails to remove the detainee within six months, the detainee may be released on parole. There are custody reviews that must be performed if a detainee is still in custody but has not been removed from the country.

The law provides that ICE has 90 days to remove the detainee from the country from the date of the final removal order. In the event the detainee is not removed within 90 days, the agency must review the custody status, provide justification for why the individual is still being detained, and decide whether to release the detainee or move forward with removal. ICE may decide to release the detainee in certain situations where the individual cannot be returned to their home country. For example, the country of legal citizenship may not exist anymore; documents required to prove citizenship may not exist; or the country of citizenship may not accept an individual removed from the United States. Detainees can be released with conditions of supervision if they can show they are making an honest effort to obtain documents necessary for removal or otherwise get their affairs in order.

Additionally, if the detainee is not released after their 90-day review, ICE is allowed at least another 90 days to try to deport the detainee. However, near the 180-day custody period, ICE is required to perform a second custody review to determine whether removal will move forward. An individual that has been detained for 180 days past the date of their final order of removal becomes eligible to file a petition for a writ of habeas corpus allowing them to demand release from detention on parole. This petition does not change the immigration status, it simply requests release from detention. There are many factors ICE considers when determining whether an individual should be released on parole including the level of cooperation with the removal process, whether the detainee is a flight risk, and whether the detainee is a danger to the community.

If you have been detained and feel as though your rights are being violated, contact an immigration attorney immediately to discuss your options.

Related page: Families and Children Under U.S. Immigration Law