Immigration Detention

How To Seek Release From Immigration Detention

Author: New York Deportation Lawyer Alena Shautsova

New York Immigration lawyer Alena Shautsova helps her clients to be released from Immigration detention.

A non-citizen in the US may be detained by Immigration authorities when he/she is found to have violated US Immigration laws, or, at times, there is a reason to believe he/she did. Of course, there are cases of unjustified detention, but this article is about how to get out of the detention if you/your friend or family member ended up in “Immigration jail.”

Note that both persons with no status at all, persons with overstayed status, lapsed status, or even permanent resident may be detained by ICE and be placed in Immigration detention. A person who is detained has a right to a bond hearing. In most situations, except when the person is subject to mandatory detention (commission of certain crimes), or he/she is arriving alien, or the person is removable for security reasons. An arriving alien is not only a person who is apprehended at the border. It may be a lawful permanent resident “seeking admission”: a person who after the commission of a crime traveled outside the US and now is seeking to enter back; or a person whose LPR status lapsed and now he/she is seeking to enter the US, and some other situations. The law says the following, under the Section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C), it can be a green card holder (LPR) who:

1. has abandoned or relinquished [LPR] status,
2. has been absent from the United States for a continuous period in excess of 180 days,
3. has engaged in illegal activity after having departed the United States,
4. has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under [the INA] and extradition proceedings,
5. has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240(a), or
6. is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

Note: that usually, a person who has been outside of the US for more than 180 days but less than a year would be given an opportunity to explain his/her absences and, usually, such a person would be allowed to enter the US, perhaps with a warning of possible removal for abandoning his/her status. The (v) point involves crimes of moral turpitude and some crimes related to controlled substances.

A person may also be detained due to expedited removal proceedings, entered the US using a visa waiver. So, the first step would be to find out why the person is detained, under which legal ground, and then see if a release from the detention is available. Note, that if a release is available, it will be initially ICE/DHS which determines the conditions of the release: ICE may determine that the bond is inappropriate; may determine that a bond shall be set a high amount. A person who was detained then may apply to an Immigration judge for a bond re-determination or a bond hearing. But it is not available in every case: in cases of expedited removal when a person is awaiting their credible fear interview when a person is entered on a visa waiver, such a hearing is not available. Do not confuse bond hearing with the parole that is available to those who was in expedited proceedings, but the grant of parole depends on DHS/ICE.

A bond hearing is separate from the “main” hearing proceeding. During the bond hearing, the subject of the detention has to show that she/he is not a flight risk or danger to the community. A bond hearing is started by submitting motion papers to the Judge and requesting a bond hearing. Usually, such papers would include an explanation of the person’s ties to the community, absence/presence of the family members in the US, job availability, statements as to if a person is generally a person of good moral character, an explanation of ability/inability to pay the bond amount, and documents about the identity of the person who will be posting the bond, if it is granted. An Immigration bond can be posted only by a US citizen or permanent resident.

At times, even if a person is subject to mandatory detention, it is possible to request that ICE releases such a person. If DHS is not actively seeking to remove a person, even when a person has a final order of removal or a person who has been granted withholding or deferral before the 90-dau removal period expired. A person with a final order of removal, if released by ICE, would usually have an order of supervision, outlining conditions of release. Such a person may qualify for a work permit. To stop active deportation/removal, a person has to file a special request: an application for an administrative stay of removal. Such an application is filed with ICE. But at times, the stay of removals may be granted by submitting motions to stay with an Immigration court, BIA, or Federal court.

If a person has not been removed out of the US, within 90 days of the order of removal, according to section 8 CFR 241.4 Filed Office Director “may release an alien if the alien demonstrates to the satisfaction of the Attorney General or her designee that his or her release will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien’s removal from the United States.”

Criteria for release:

1. Travel documents for the alien are not available or, in the opinion of the Service, immediate removal, while proper, is otherwise not practicable or not in the public interest;
2. The detainee is presently a non-violent person;
3. The detainee is likely to remain non-violent if released;
4. The detainee is not likely to pose a threat to the community following release;
5. The detainee is not likely to violate the conditions of release; and
6. The detainee does not pose a significant flight risk if released.

Note that the U.S. Constitution prohibits pretrial and civil detainees from being detained in punitive conditions of confinement because the purpose of such detention is allegedly not punitive. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Persons in Immigration detention “may not be punished in any manner—neither cruelly and unusually nor otherwise.” Immigration detainees may use a petition for habeas corpus to challenge unsafe or inhumane detention conditions. Charles v. Orange County, 925 F.3d 73, 82; Darnell, 849 F.3d at 29; see also DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (“[W]hen the State . . . so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.”); see also Charles, 925 F.3d at 86 (“[T]hose in civil detention . . . are also afforded a right to be free from deliberate indifference to their serious medical needs.”).

As such, when seeking to be released from the Immigration detention, a careful legal and factual analysis is required to determine (1) if a person has a right to a bond; (2) if a person can file a motion/petition/application for stay of removal; or/and if a person may file a petition for habeas corpus; or a request/motion with DHS for a release or parole.

If you need help with issues related to Immigration removal and detention, please call 917-885-2261 to book a confidential consultation.