The Detention to Deportation Pipeline
Both Ala and I have extensive experience in representing immigrants who find themselves detained by Immigration and Customs Enforcement (ICE). For those who end up in detention, there generally four routes that one can be sent down.
1. Imminent deportation. This occurs when an immigrant already has an order of deportation.*
In other words, an immigrant was issued a notice to appear in immigration court and, for one reason or another, an immigration judge ordered them deported. When an immigrant with an order of deportation is arrested or detained for any reason, even if it is an unlawful, the moment they are fingerprinted ICE is notified of their presence and promptly issues a directive to the local authorities to hold the person in custody, regardless of whether that immigrant is eligible for bond.
Once the local authorities have disposed of an immigrant’s matter, within a couple of days, ICE takes the immigrant into custody and immediately begins the process of deportation, which includes obtaining travel documents and arranging a flight out of the United States (usually by charter). Therefore, it is imperative that these individuals secure legal counsel as soon as they have an “ICE hold.”
2. Bond eligibility. An immigrant who does not have an order of deportation, but who is detained by ICE, is generally eligible to request relief before an immigration judge. Generally, if the immigrant did not commit a serious crime, he/she is eligible to be released from detention on a bond pending the outcome of their request before the immigration judge. The bond can range anywhere from $2500 and up. However, even misdemeanors and seemingly minor crimes can be considered serious in the immigration context and subject a person to mandatory detention, meaning he/she is ineligible for bond. In these circumstances, a person may be eligible for humanitarian parole.
3. Imminent deportation part two. This is similar to type 1, but with a slight twist: the immigrant has an administrative order of removal rather than a final order of deportation. Generally, an immigrant is issued an administrative order through a process called “expedited removal”, where the government can deport a person without affording them the right of judicial review. Many times, immigrants are expeditiously removed yet return to the United States a second or third time.
In this scenario, if an immigrant with an administrative order is detained by ICE or local authorities, their options to remain in the United States are very limited. If the immigrant claims he fears returning to his home country, ICE must give the immigrant an opportunity to explain his fear to an asylum officer.
The interview with the asylum officer is called a “reasonable fear interview”. If the asylum officer finds that the immigrant has a reasonable possibility of obtaining relief pursuant to withholding of removal or the convention against torture, the immigrant will be allowed to request relief before an immigration judge. It must be noted that the “reasonable fear” process can take several months and result in prolonged detention for the immigrant.
4. Imminent deportation at Port of Entry When an immigrant is caught by U.S. immigration officials at or near the border, the immigrant is placed into “expedited removal”, which, as explained earlier, allows the government to deport an immigrant without affording him/her the opportunity to ask for relief before an immigration judge. However, if an immigrant caught near the border expresses a fear of returning to their home country, they must be given an interview with an asylum officer. Unlike in part 3, this is called a “credible fear interview” and is a much speedier, and the immigrant has a lower burden of proof to prevail.
If the asylum officer finds a credible fear, the immigrant is issued a notice to appear in immigration court, where they can apply for asylum, withholding of removal, and protection under the Convention Against Torture. Usually, a bond is automatically set, although in a few circumstances the immigrant is issued an “Order of Release on Recognizance,” which does not require a bond payment.
The above is not an exhaustive list of potential scenarios that an immigrant may face while detained by ICE. Given the severe time constraints and often complex legal issues at play, anyone who finds themselves, a friend, or family detained by ICE, they should immediately retain counsel to effectively explore their options to remain in the United States.
*Legally, “deportation” is now referred to as “removal”, though removal is still in effect the same thing as deportation.