How does an immigrant or alien who has been picked up by Immigration and customs Enforcement (ICE) get released from custody? This is an extraordinarily complex area of law. Unfortunately, immigration is not here to help you, so it would not be prudent to rely upon the same people who apprehended you to then educate you as to what your legal options are. In many ways, a person picked up and detained by ICE has less rights and protections than those afforded to a person accused of a criminal offense. In many cases, people have unwittingly signed away their rights to contest their deportation and find themselves quickly removed. That is why it is absolutely critical that you have some general concepts in mind to discuss with a lawyer who can evaluate whether you (or the person you are helping) qualifies for release under those grounds. Legal doctrines that need to be explored include but are not limited to:
If an alien is not subject to mandatory detention grounds, he or she may be eligible for release on bond, which is similar to bail for those accused of committing criminal offenses. Here's some guidance about getting out on bond.
2) RELEASE ON PAROLE
Some individuals may not be eligible for bond. People who are seeking admission, even some lawful permanent residents are returning from trips abroad, are considered "arriving aliens" and are not legally entitled to bond. However, ICE may, in its discretion, parole the alien, in other words, release the alien (with the expectation that the person will appear for future proceedings). Parole should not be confused with "admission," which is a legal term of art. Those who are paroled are not legally admitted to the US although they are being released from custody.
3) MANDATORY DETENTION
There are some individuals who are subject to mandatory detention, meaning that notwithstanding their status, ie., long term permanent residents, they are required to be detained. The class of people ordinarily subject to mandatory detention are those who have been convicted of criminal offenses. However, this is an area of law that is extremely sensitive.
4) ORDER OF SUPERVISION
In some cases, a person may already have an order of removal. In most cases, Immigration will not ordinarily release the person as there is a high risk of that individual fleeing. However, there may be special circumstances that an attorney may bring to immigrations' attention that may make an officer amendable to releasing the person on an order of supervision. This means that the person will be released but have to report regularly to ICE as a condition of release. A person can be released on an order of supervision either before proceedings have started as an alternative to detention or even after an order is entered.
5) ALTERNATIVES TO DETENTION
Some alternatives to detention include ankle bracelets and other forms of monitoring.
A Word on Detainers in New Jersey
If a person is in custody pursuant to a criminal case, ICE may lodge a detainer. A detainer is a hold or request that the individual be held and transferred over into the custody of the Department of Homeland Security (DHS). In the Third Circuit (which covers New Jersey, Pennsylvania, and Delaware), be aware that detainers no longer hold the same teeth that they used to pursuant to a case called Galarza v. Szalczyk, which we previously discussed. The jails and correctional facilities are not required to hold a person for immigration, which obviously benefits the non-citizen.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.