Ice Detention

In many removal cases, especially those involving noncitizens facing removal for criminal grounds and those arriving at U.S. airports, the noncitizen will be arrested and taken into custody by DHS.

ICE may arrest the noncitizen at any time. Often the agency will do so when the noncitizen appears at a USCIS office for an interview on an adjustment of status or naturalization application. In other case an ICE team will arrest the noncitizen at his home or place of work. In many criminal removal cases, ICE will assert a detainer against a noncitizen inmate in a state or federal facility and take him into custody upon the conclusion of his sentence, usually transferring him from the correctional facility to an ICE detention facility (which may be in a different part of the country).

Once ICE takes the noncitizen into custody, the agency will make an initial “custody determination” in which ICE will either release the noncitizen on his or her own recognizance, set a bond amount that can be posted to secure his or her release, or deny any conditions for release. The custody determination made at this early phase of the case will greatly impact the noncitizen, their case and family. It is therefore imperative to retain an experienced attorney as early as possible after arrest so that the attorney can reach out to ICE and attempt to negotiate favorable terms of release.

If ICE sets a bond that is too high for the noncitizen and their family to pay or denies bond altogether, the noncitizen can seek a redetermination hearing before an Immigration Judge. Assuming the noncitizen is eligible for bond – certain noncitizens, including those with convictions for aggravated felonies are not eligible for release – the Immigration Judge is empowered to reduce the amount of bond upon a strong showing that the noncitizen is not a flight risk or danger to the community. Such a showing will require a carefully thought out, well-documented bond package and often entails witness testimony and negotiations with ICE counsel.

Noncitizens who remained detained with be placed on the “detained calendar” of an Immigration Judge and will often appear at one of the Immigration Courts set up in detention facilities, whereas a noncitizen released on bond will have his or her case transferred to the nondetained calendar, usually at one of the main immigration courts. Whether a case remains on the detained calendar or not can have a critical impact on the outcome due to the fact that cases on the detained calendars move at a rapid pace, giving the noncitizen and his attorney a limited amount of time to prepare. Further the psychological impact of being detained, often thousands of miles away from home, will often cause a noncitizen to simply accept removal rather than remain in custody.