Immigration Detention

By: Susannah Nichols

If you or someone you love has been detained by Immigration officials you likely have many questions about the process. Non-citizens may be detained for violations of immigration law. Commonly these include: overstaying or violating a visa, entering the country illegally, or criminal convictions.

The detention process begins with Immigration and Customs Enforcement (“ICE”) finding that you have violated an immigration law. You will then be picked up by ICE officers and taken to a local facility to process. In the Washington, DC area, you would go to the ICE office in Fairfax, Virginia. Here, you will be formally processed and ICE will decide if they are going to release you on bond [legal agreement where money is paid and held by the government to ensure you will attend future hearings], release you with a monitoring system, or transfer you to a long-term detention facility. Should ICE decide to transfer you to a detention facility, you will likely be transferred to one in the same state. Most states have a few immigration facilities which they use; typically located in remote areas of the state.

If you are transferred to a detention center you may be able to seek bond from a judge, even though ICE refused to set a bond. Determining if you are eligible for bond is dependent on a few factors. If you are classified as an “arriving alien” meaning you are coming into the country, as opposed to being ordered to leave the country, the judge is unable to set a bond in your case. Certain serious criminal convictions or numerous criminal convictions may also remove the option of bond from your case. In these cases, called “mandatory detention”, and you must remain detained throughout the trial process. An experienced immigration attorney can determine if you are eligible for release on bond or subject to mandatory detention.

If eligible for bond, you may request a separate bond hearing or request bond at your first hearing before the Immigration Judge. Your first hearing, called a “Master Calendar” hearing will be scheduled much sooner if you are detained. The actual timing will be dependent on your particular court and judge. At the bond hearing your attorney will present a motion to have a bond set in your case. You will need to show that you are, in fact, eligible for bond. The judge then has the option of awarding a bond in your case. Simply being eligible for bond does not mean the judge will set a bond. He or she will consider certain factors in your case which will determine the amount or if bond will be awarded at all. In order to make these decisions, the judge looks at you as an individual and your history in the United States.

The judge will determine if:

  • You are a threat to national security;
  • If your release would pose a risk to property or the public; and
  • If you would likely return to attend your future hearings on your own.

Positive factors may include a long history of living in the U.S.; having lived in the same home for a long time; significant family ties in the U.S.; a stable employment history.

Negative factors may include: immigration violations; criminal history; and attempts to flee authorities.

Your attorney will argue your case while the government’s attorney will point out any issues presented by your release on bond. The judge will then rule based on what has been presented to him or her at the hearing. If a bond has been set, you will be released from detention after payment has been made to Immigration. Being released on bond does not solve your immigration issues. It only means you can return home as you fight the immigration charges against you. You will need to be sure to attend all future hearings at the Immigration Court until a final decision has been made in your immigration case.