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IMMIGRATION DETENTION & REMOVAL PROCEEDINGS

Background

Since September 11, 2001, the United States Immigration & Customs Enforcement (ICE) has dramatically
stepped up the removal (i.e. deportation) of aliens who are unlawfully present and of lawful permanent
residents who have become convicted of certain crimes. For example, in 1995, approximately 5,500
people were detained on any given day and some 33,000 were deported. In 2003, over 20,000 people
were detained on any given day and over 77,000 were deported. The numbers have increased since
that time - currently, the United States is experiencing major immigration raids of workplaces where
hundreds of people are detained in a single operation. Accordingly, non-citizens who are subject to
deportation are now more likely to be arrested and detained by law enforcement authorities.

The types and numbers of crimes which make non-citizens deportable have also been enlarged. For
example, conviction for domestic violence is a ground for deportation of a lawful permanent resident
(Green Card holder). On the other hand, an individual may be detained for the simple reason that he or
she has overstayed the departure date granted after lawful temporary entry with a visa. Yet another
reason a person is detained is that he or she is facing a Final Order of Removal/Deportation (where all
avenues of appeal and review have been exhausted and the issuance of a "bag and baggage" letter).

What To Do If A Person is Detained by U. S. Immigration and Customs Enforcement

An individual who has been detained by U. S. Immigration and Customs Enforcement will almost certainly
be placed in removal (deportation) proceedings. While consequences to the non-citiizen who has been
detained are severe (including being jailed while awaiting a hearing in immigration court), that person -
unlike those charged with a crime - is not entitled to a court appointed attorney/public defender, but he or
she must retain counsel at own expense.

The timely retention of immigration counsel can make a difference for a detainee. Even though detained
by ICE, a non-citizen has the right to be visited by counsel at the place of detention and to have the
benefits of legal advice.   Even though detained by ICE, a non-citizen may have available to him or her
certain defenses and forms of relief from both detention and removal.

Release from Custody (Posting of Bond)

Under the law, mandatory detention without the right to bond is required of individuals who have been
convicted of certain offenses and released from prison after October 8, 1998. Persons who were
convicted of a removable offense but not sentenced to time in jail may still be eligible for bond.   What
constitutes an offense requiring mandatory detention is a complex question and the law is constantly
developing in this area.   A person classified as an “arriving alien” is also placed under mandatory
detention without bond by the U. S. Customs and Border Protection (subject to parole into the United
States upon successful assertion of "credible fear" of persecution if returned to the country of origin).

Other persons who have been detained are eligible for bond. ICE will make an initial determination on
bond, Any person who continues to be detained may apply to the U. S. Immigration Court for a hearing to
redetermine bond. The law requires the Immigration Judge to consider a number of criteria, such as for
example, ties to the community, prior work history, flight risk and other relevant criteria for setting the
amount of bond. If bond is denied by the Immigration Judge, a detainee may appeal the decision to the
Board of Immigration Appeals.

In unusual circumstances, a petition for a Writ of Habeas Corpus may be still available from a United
States District Court. Congress has amended the immigration laws through the REAL ID Act of 2005 to
restrict or even attempt to completely eliminate habeas corpus for aliens, but the judiciary should be
approached to entertain habeas corpus on behalf of aliens who assert illegal detention in the custody of
the Federal Government under circumstances which justify this form of extraordinary relief. The law on
habeas corpus can be expected to be in constant flux as the Great Writ involves the constitutional
"checks and balances" to be secured by the separation of powers between the branches of American
government.

Finally, the United States Supreme Court has held that the Government may not indefinitely detain an
alien person with a Final Order of Removal/Deportation but who cannot be deported from the United
States because no country will accept him or her. Indefinite detention is a "serious constitutional threat"
under the Fifth Amendment guarantee of Due Process which is available to all "persons" within the United
States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent." Under the
U. S. Constitution, only "reasonable" detention is permitted. This means that after six months of
detention, and if deportation did not seem likely in the "reasonably foreseeable future," release on bond
must be accorded priority.

Proceedings Following Release From Detention

If a person is released from detention following the setting of bond by the Immigration Judge and the
posting of that bond, that person will be issued a Notice to Appear and must appear at a future date in
Immigration Court to explain why he or she should not be removed. This initial appearance is called a
Master Hearing and a case may be continued for a number of Master Hearings. Failure to appear in a
hearing will result in a removal order being issued in absentia.   Cases in which claims for relief have
been asserted will proceed to an Individual Hearing. At the Individual Hearing, evidence in support of the
claim for relief (e.g. asylum by reason of political persecution) must be presented to an Immigration
Judge. The law pertaining to the defenses against removal and the forms of relief that may be available
are complex. Again, the assistance of counsel is invaluable at this stage of immigration proceedings.

At the conclusion of the Individual Hearing, the Immigration Court will issue a decision either granting
relief or ordering removal. This decision can be appealed to the Board of Immigration Appeals for
review. A review decision from the Board can further be appealed as matter of right to a United States
Circuit Court of Appeals with jurisdiction. The United States Supreme Court has final discretionary review.

Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of same and federal, state and local law are subject to change and timely,
competent counsel from a qualified legal professional on current and applicable law is indispensable. The publisher reserves the right to amend the contents of
this website at any time and for any reason.