Immigration 101: Intro to Detention

If you have been placed in removal proceedings, you may be detained by US Immigration and Customs Enforcement (“ICE”) until an immigration judge decides whether or not you should be removed from the US. However, ICE is only able to detain a small percentage of people who are in removal proceedings, and you will probably be allowed to remain free until the judge makes a final decision in your case, which may take several years.

Will ICE Detain You?

US immigration law requires mandatory detention for people who are placed in removal proceedings because they have committed a crime that the government considers grounds for inadmissibility (meaning that you cannot come into the US or adjust status once here) or deportability (meaning that you cannot come into the US and can be ordered or forced to leave the US). These are sometimes called 236(c) detention. If you see something that starts with “212(a)(2)” or “237(a)(2)” in your Notice to Appear (the document that ICE should have given you when it placed you in removal proceedings), ICE will probably have no choice but to detain you. There are a few exceptions to these laws, which you should discuss with an experienced immigration attorney.

However, if you do not fall under any of these categories, you are only subject to discretionary detention , which means that ICE can decide whether or not to detain you. Usually, ICE will tell you if you will be detained at the same time it serves you with the Notice to Appear. If you are not detained at that point, ICE probably won’t try to detain you later on.

Will You Be Released from Detention?

If ICE detains you under the discretionary detention provision, you may be able to post a bond to secure your release. ICE or the immigration judge in your case will decide the amount of money required for the bond; if you can pay that amount, the court will hold the money until the end of your case. If you do not appear at your hearing, the court will keep the money.

The minimum bond amount is usually $1,500, but depending on your circumstances, the actual amount can be much higher. If ICE has set the amount of your bond, you can ask an immigration judge to lower it. The judge will determine the appropriate bond amount by considering whether you are a flight risk, and whether you are a danger to the community.

There may be rules attached to your bond. If you do not follow these rules, your bond may be revoked, and you could be picked up by ICE and detained again. One common rule is a prohibition on traveling.

This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.

The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.


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