An immigration hold (also called immigration detention) can occur when a person is held by the Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) division of the Department of Homeland Security. It can occur when someone is suspected of illegally entering the country (not having the required entry documents, such as a visa, passport, green card, or other immigration-related papers).
A hold can also be placed if someone overstays their visa (i.e., does not leave when they are supposed to.) A hold can also occur when an alien who is legally here (e.g., a green card holder) commits a “crime of moral turpitude” or another type of crime that can lead to the revocation of a valid visa and then removal.
Since 1996, the U.S. government has held the statutory power to hold certain immigrants even after their arrests. This is based on the notion that aliens with specific criminal histories failed to appear in court. The statute directs the authorities to put immigrants in mandatory detention when they’re released from criminal custody.
An alien who is given a hold is removed from jail to an immigration detention site until authorities can decide on whether to give them a visa and let them stay or to deport them back to their home country. The statute permits the government to lock up individuals without a hearing until their immigration (deportation) case is settled. People convicted of minor possession offenses or traffic offenses have been held many years after serving their sentences or going through rehabilitation.
The United States government holds tens of thousands of immigrants in detention at any given time. Several human rights organizations, such as Amnesty International and the American Civil Liberties Union (ACLU), have specified problems with ICE’s administration of detention centers. Human rights abuses and inadequate or unprofessional medical care have been reported. Such reports have also discussed the death of several immigrants in detention and have said that ICE is covering up these facts.
What is Mandatory Detention?
Mandatory immigrant detention is the requirement that certain categories of aliens remain detained until the completion of their immigration proceedings. In 1996, lawmakers passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which exponentially increased the use of mandatory detention.
Under IIRIRA, all noncitizens — including lawful permanent residents — are subject to mandatory detention and placed in expedited removal proceedings if they have been convicted of certain felonies (crimes for which the term of imprisonment is at least one year): any crime of theft, burglary or violence, as well as illegal trafficking in drugs or firearms.
Many people have been put in mandatory detention due to minor criminal history, including non-violent misdemeanor convictions, if they were not given any jail sentence. The lack of jail time means that immigration officials claim not to know whether the offense was a felony or a misdemeanor. Thus, crimes so slight that they did not assign jail time to the individual may subject them to mandatory immigration detention.
In normal detention, an individual can be released on bond if not deemed a threat to national security. However, in mandatory detention, there is no opportunity for a bond.
Where Do Immigration Holds Take Place?
Immigration takes place in an ICE detention center, located in a different facility from the ordinary jail. The facility can be located in an entirely different state from where the person was held in jail. Thus, it can sometimes be difficult for family members and friends to find a loved one or relative who is being held on an immigration hold.
In addition, the person can be relocated to a different holding facility without notice. Thus, it may sometimes be necessary to work with an immigration attorney to help locate and assist a person being held on an immigration hold.
Detention facilities are disagreeable and can be dangerous. Many facilities are holding inmates in numbers far exceeding their planned capacities. The number of migrants held in custody surged to 13,400 in March 2019. In May and June 2019, between 14,000 and 18,000 people were held by CBP every night. Customs and Border Protection Commissioner McAleenan said, “A high number for us is 4,000. A crisis level is 6,000. 13,000 is unprecedented.”
There have been frequent complaints against detention facilities, including frigid temperatures, mildew, and meals that fail to meet the hunger needs of the population. Non-violent individuals are often placed in custody with violent offenders. Hundreds of deaths have occurred. An immigrant from Guinea was isolated for 13 hours after suffering a skull fracture, and he died. Another immigrant died in ICE detention after he told the jailers he had a fractured spine and cancer. They accused him of lying about his situation and denied him medical care.
What Are the Alternatives to Detention?
ICE has programs that are far less restrictive alternatives to detention. Alternatives include:
- Release on Order of Recognizance (ROR) – If someone is undergoing immigration proceedings, they may be released under certain restrictions, such as appearing at all immigration proceedings, regularly reporting to detention authorities, and avoiding all criminal activity. A ROR is used when an alien does not have the resources to afford a bond.
- Appearance Bond – A bond is a monetary contract between the person posting the bond and ICE. A bond is more restrictive than ROR. It is designed to encourage the person’s appearance at immigration proceedings. If the person fails to appear, their bond will be forfeited. Typically, the alien cannot afford to pay the bond in cash and so will go to an immigration bondsperson (just as with a bail bondsperson) and pay the bond company a portion of the amount due, and the bonding company pays the rest. If the alien fails to appear at a hearing, the bail people will track them down.
- Intensive Supervision Appearance Program (ISAP) – Case specialists are assigned to the aliens in this program. They use home and work visits, telephone check-ins, and monitoring bracelets to keep track of the aliens. To be eligible for participation in ISAP, an alien must be an adult who does not threaten the community or national security. Besides volunteering for the program, the person must:
- Be waiting for impending immigration court proceedings
- Be awaiting removal from the United States
- Reside in an area covered by ISAP
- Electronic Monitoring Devices (EMD) – These are ankle bracelets worn by the alien so that immigration authorities can track where they are.
Do I Need a Lawyer for Assistance with an Immigration Hold?
Immigration holds can be quite complex and may require the assistance of a legal professional. The first difficulty is finding out where the individual is being held – records of detention centers are woefully inadequate. Once the person is located, and hearings are underway, legal representation may be needed to argue the person’s case fully.
Thus, you may need to hire a deportation lawyer in your area if your loved one is subject to an immigration hold or hearing. Your attorney can provide legal advice and representation and help argue the case before the immigration judge. The attorney can fight the hold and can also fight the deportation.
