Procedures Followed by ICE for
The Arrest and Detention of
Non-Criminal Aliens
U.S. law grants federal immigration authorities broad power to arrest and detain people who are trying to enter the U.S. or are suspected of being in the U.S. without permission.
The exercise of that power has resulted in the detention of nearly 400,000 people every year in the United States in over 350 prisons, jails, and private detention centers around the county.
Immigration and Customs Enforcement (ICE) as part of the Department of Homeland Security are the ones mandated to arrest and detain these individuals
This article spotlights the laws controlling the arrest, detention and bond procedures of those who are present in the United States illegally and do not have criminal convictions and have been detained.
ICE has the authority to arrest non-citizens for alleged immigration violations.
There are many immigration officials have the authority to arrest and detain non-citizens living illegally in the United States. INA § 287(a)(2), grants arrest authority without a warrant to Immigration officials if they have "reason to believe that the alien ... is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest."
The procedures followed when an arrest is made on an alleged violation of the immigration law?
Once arrested, the individual should be examined by an immigration officer, on his or her right to enter or remain in the United States "without unnecessary delay". If it appears to the officer that the person arrested has violated the immigration laws, then the officer will begin the process for a removal (deportation) proceedings or begin expedited removal, as applicable.
ICE can hold an individual arrested without a warrant for 48 hours, or longer "in the event of emergency or other extraordinary circumstance."
Prior to the end of this time period ICE must determine whether they will keep the individual detained or If ICE begins removal (deportation) proceedings, it should notify the individual the reasons for the arrest.
A list of free legal service providers is provided to the individual arrested. The officer would normally warn the person that any statement made "may be used against him or her in a subsequent proceeding.”
Release from detention
There is a procedure for bonding out and release of individuals on their own recognizance except for those requiring mandatory detention due to criminal or terrorist grounds listed in INA § 236(c)(1), 8 U.S.C. § 1226(c). There is a minimum bond of $1,500. At times the Attorney General may allow conditional parole, which may be revoked at any time.
ICE determination of whom and under what condition has to be followed.
It is the local ICE office makes the preliminary custody and bond determination.
For the individual to be released he or she "must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding."
The factors generally considered in making the decision to set bond or release the individual are as follows:
- Local family ties;
- Financial ability to post bond.
- Manner of entry and length of time in the United States;
- Prior arrests, convictions, appearances at hearings;
- Membership in community organization;
- Immoral acts or participation in subversive activities;
Priorities for the apprehension, detention. and removal of aliens
Priority 1. Aliens who pose a danger to national security or a risk to public safety
Level I offenders: aliens convicted of"aggravated felonies," as defined in § IOI{a){43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year. commonly referred toas "felonies";
Level 2 offenders: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors"; and
Level 3 offenders: aliens convicted of crimes punishable by less than one year.
Priority 2. Recent illegal entrants
In order to maintain control at the border and at ports of entry, and to avoid a return to the prior practice commonly and historically referred to as "catch and release," the removal of aliens who have recently violated immigration controls at the border, at ports of entry, or through the knowing abuse of the visa and visa waiver programs shall be a priority.
Priority 3. Aliens who are fugitives or otherwise obstruct immigration controls
If the bond is too high can ICE's custody or bond determination can be requested and a hearing will follow.
In most cases a bond redetermination by an Immigration Judge can be requested at any time until a final order. The request for redetermination may be made orally or in writing or telephonically, if permitted by the judge.
The Immigration Judge does not have to power to grant a bond redetemination in certain instances.
1. In cases of "arriving aliens" (means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.)
2. If the person is “described in” the terrorism and security related ground of deportability.
3. Individuals subject to mandatory detention;
4. Individuals in exclusion proceedings; and
5. Individuals who already have a final administrative orders of removal.
However, the immigration judge still has the power to review whether ICE properly decided that the individual does in fact belong to one of these groups.
Once released from custody the individual may challenge the conditions of release.
If the individual released wants to lower the bond or otherwise modify the conditions of his or her release, may file a request to change the terms of release with the Immigration Court within seven days of release. After the 7 day period has expired, the individual may still ask ICE directly to reconsider the conditions of release. If ICE refuses to reconsider, an appeal of ICE's decision can be made directly to the BIA within 10 days of ICE's decision.
Source: apsanlaw.com
The Obama administration issued a Policy Memorandum that clarifies an existing policy known as “Parole in Place.” This policy is based in the legislative parole authority given to the Secretary of the Department of Homeland Security in the Immigration and Nationality Act. That law permits the Executive Branch to issue immigration paroles, including paroles in place, and the immigration agencies have been issuing such paroles for decades. Therefore “parole in place” is not new, but has seen a revival.
Parole in place offers a unique opportunity for noncitizen spouses, parents, and unmarried minor children of U.S. citizen who are members of the U.S. military (current or past) who have remained in the U.S. after an unlawful entry a path to a U.S. green card that is not accessible to others.
This benefit known as “parole in place” or PIP permits those who potential immigrants, qualified for a green card based on close family relationship to “adjust status” while in the United States. In other words, apply for lawful permanent residence or a green card without departing the United States, when others that are illegal in the U.S. for the very same reason, cannot adjust and must visa process their case.
Those that do not qualify for Parole in Place must leave the U.S> and are subject to a bar of reentry for 3 to 10 years.
Who Qualifies?
Only “immediate relative,” qualify, That is, either a U.S. citizen’s:
- Spouse of a U.S. citizen
- Unmarried child (under age 21), of a U.S. citizen or
- Parents of U.S. citizen that is over the age of 21.
An immediate relative is eligible for a green card immediately, without awaiting in line for a visa.
The excellent news is that PIP works to eliminate at least two of the grounds of inadmissibility that might interfere with your entry, both are found in the Immigration and Nationality Act at INA § 212(a)(6)(A)(i).
The first ground of inadmissibility that PIP resolves relates to any noncitizen “present in the United States without being admitted [inspected by a border official] or paroled.” With a PIP approval, you in essence, are retroactively “paroled in” to the United States.
The second ground of inadmissibility that PIP resolves applies to any noncitizen who “arrives in the United States at any time or place other than as designated by the [Secretary of Homeland Security].” Again, PIP makes these two reasons of inadmissibility a non-issue. The best part is that since you do not have to travel abroad for the interview, and will adjust status in the U.S., you have no more fear about inadmissibility and being barred from return to the U.S. for three or ten years as a penalty, since you will not have to leave the U.S. at all.
However, if you believe you might be inadmissible on any other grounds, you may have trouble being granted a green card, and should absolutely consult with an experienced immigration lawyer.
Are you eligible for PIP?
Eligibility for PIP approval, requires a certain relationship with a member of the military. You must be the spouse, child, or parent of either:
- A current participant of the Selected Reserve of the Ready Reserve,
- An Active Duty member of the U.S. Armed Forces’ or
- ]Someone who has formerly served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.
Understand PIP eligibility is not automatic for members these three groups, but they are the only ones who are requested to apply for it under the new policy.
Some people will not be granted PIP:
Those with a criminal conviction or other “serious adverse factors.”
Parole in place is granted only on a "discretionary" basis, which means the immigration authorities only will grant it if they want o, not just because a person that is married to a military employee. They must be convinced that the applicant merits their help. If there is anything negative in your personal history that makes you suspect that immigration officials may want to remove you from the U.S., for sure, consult an immigration
How to Apply for “Parole in Place”
The first step is to repare and submit the following to U.S. Citizenship and Immigration Services (USCIS):
- Form I-131, Application for Travel Document
- Evidence of the family relationship to the U.S. citizen military serviceperson (i.e a copy of a birth or marriage certificate)
- Evidence that the U.S. citizen family member is either an Active Duty member of the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve, or previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve, such as a photocopy of the military identification card (DD Form 1173; make copies of both the front and back).
- Two identical, color, passport-style photographs of the noncitizen applicant, and
- Evidence of any additional sympathetic and discretionary factors that you would like to have USCIS take into account, such as letters from your church, community leaders or teachers showing participation in volunteer activities, personal education, or your children's education.
- There is no fee for this application. (Based on 8 C.F.R. 103.7(d).)
Final Step: Apply for Adjustment of Status
Once you have received approval of your parole in place, you can continue by filing an Adjustment Packet.
The Obama administration issued a Policy Memorandum that clarifies an existing policy known as “Parole in Place.” This policy is based in the legislative parole authority given to the Secretary of the Department of Homeland Security in the Immigration and Nationality Act. That law permits the Executive Branch to issue immigration paroles, including paroles in place, and the immigration agencies have been issuing such paroles for decades. Therefore “parole in place” is not new, but has seen a revival.
Parole in place offers a unique opportunity for noncitizen spouses, parents, and unmarried minor children of U.S. citizen who are members of the U.S. military (current or past) who have remained in the U.S. after an unlawful entry a path to a U.S. green card that is not accessible to others.
This benefit known as “parole in place” or PIP permits those who potential immigrants, qualified for a green card based on close family relationship to “adjust status” while in the United States. In other words, apply for lawful permanent residence or a green card without departing the United States, when others that are illegal in the U.S. for the very same reason, cannot adjust and must visa process their case.
Those that do not qualify for Parole in Place must leave the U.S> and are subject to a bar of reentry for 3 to 10 years.
Who Qualifies?
Only “immediate relative,” qualify, That is, either a U.S. citizen’s:
- Spouse of a U.S. citizen
- Unmarried child (under age 21), of a U.S. citizen or
- Parents of U.S. citizen that is over the age of 21.
An immediate relative is eligible for a green card immediately, without awaiting in line for a visa.
The excellent news is that PIP works to eliminate at least two of the grounds of inadmissibility that might interfere with your entry, both are found in the Immigration and Nationality Act at INA § 212(a)(6)(A)(i).
The first ground of inadmissibility that PIP resolves relates to any noncitizen “present in the United States without being admitted [inspected by a border official] or paroled.” With a PIP approval, you in essence, are retroactively “paroled in” to the United States.
The second ground of inadmissibility that PIP resolves applies to any noncitizen who “arrives in the United States at any time or place other than as designated by the [Secretary of Homeland Security].” Again, PIP makes these two reasons of inadmissibility a non-issue. The best part is that since you do not have to travel abroad for the interview, and will adjust status in the U.S., you have no more fear about inadmissibility and being barred from return to the U.S. for three or ten years as a penalty, since you will not have to leave the U.S. at all.
However, if you believe you might be inadmissible on any other grounds, you may have trouble being granted a green card, and should absolutely consult with an experienced immigration lawyer.
Are you eligible for PIP?
Eligibility for PIP approval, requires a certain relationship with a member of the military. You must be the spouse, child, or parent of either:
- A current participant of the Selected Reserve of the Ready Reserve,
- An Active Duty member of the U.S. Armed Forces’ or
- ]Someone who has formerly served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.
Understand PIP eligibility is not automatic for members these three groups, but they are the only ones who are requested to apply for it under the new policy.
Some people will not be granted PIP:
Those with a criminal conviction or other “serious adverse factors.”
Parole in place is granted only on a "discretionary" basis, which means the immigration authorities only will grant it if they want o, not just because a person that is married to a military employee. They must be convinced that the applicant merits their help. If there is anything negative in your personal history that makes you suspect that immigration officials may want to remove you from the U.S., for sure, consult an immigration
How to Apply for “Parole in Place”
The first step is to repare and submit the following to U.S. Citizenship and Immigration Services (USCIS):
- Form I-131, Application for Travel Document
- Evidence of the family relationship to the U.S. citizen military serviceperson (i.e a copy of a birth or marriage certificate)
- Evidence that the U.S. citizen family member is either an Active Duty member of the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve, or previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve, such as a photocopy of the military identification card (DD Form 1173; make copies of both the front and back).
- Two identical, color, passport-style photographs of the noncitizen applicant, and
- Evidence of any additional sympathetic and discretionary factors that you would like to have USCIS take into account, such as letters from your church, community leaders or teachers showing participation in volunteer activities, personal education, or your children's education.
- There is no fee for this application. (Based on 8 C.F.R. 103.7(d).)
Final Step: Apply for Adjustment of Status
Once you have received approval of your parole in place, you can continue by filing an Adjustment Packet.