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Gaining Freedom From an Immigration Detention Facility
Your spouse has been gone for several hours when your phone rings. It's your husband calling from an immigration detention facility for foreign nationals. While many concerns will come to mind, the first goal is to help your husband come home. Below you will find some of the rules involving release from immigration detention.
Apprehension and Detention
With a properly issued warrant, the Bureau of Immigration and Customs Enforcement ("ICE") has the authority to arrest and detain a foreign national pending a decision on whether the foreign national will be removed from the United States. This authority means that ICE can potentially hold a foreign national for several months or even years. For some detainees, under mandatory detention laws applicable to foreign nationals considered especially dangerous or a flight risk, ICE may have no discretion to release them. For other detainees, ICE will consider their requests for release on a case-by-case basis.
Foreign Nationals not Subject to Mandatory Detention
ICE has the authority to parole or release on bond foreign nationals not subject to mandatory detention. Parole is granted in very limited circumstances. It is available on a case-by-case basis for urgent humanitarian reasons or when there will be a significant public benefit. A serious medical condition, pregnancy, or compelling reason why detention would not be in the public interest could form the basis for a grant of parole.
ICE may grant release from detention on a bond of at least $1,500. Before ICE will grant this benefit, the foreign national must demonstrate that this release will not threaten people or property and that he or she will make all required appearances in the removal proceedings (also called deportation proceedings). If a bond is refused, the foreign national can request release on bond from an immigration judge.
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Mandatory Detention
Mandatory detention applies to, among others, foreign nationals who have certain criminal convictions, who entered the U.S. without documentation or with fraudulent documentation, who are inadmissible or deportable based on national security grounds, and who have previously received final orders of deportation. ICE is not permitted to release foreign nationals subject to mandatory detention while they attend their removal proceedings except under limited circumstances. Indeed, the foreign national would not be released unless it was necessary for the protection of a government witness, a potential witness, a person cooperating in a major criminal activity investigation, or an immediate family member or close associate of that person.
Government Detention Guidelines
In a 1998 memorandum, the government issued guidelines for detention that designated four detention categories: (a) required, (b) high priority, (c) medium priority, and (4) lower priority. The required category includes foreign nationals subject to mandatory detention who must be detained. The other categories involve foreign nationals who may be detained, but may also be released depending on the amount of detention space and the particular facts of the case. High priority refers to foreign nationals removable on security related or criminal grounds, but not subject to required detention. Medium detention refers to certain foreign nationals deportable for being inadmissible to the United States, but who are not subject to required detention. Finally, low priority refers to other foreign nationals who are removable from the United States but are not subject to required detention. The chances of a foreign national gaining freedom during removal proceedings vary depending on the priority level set out in the guidelines. The lower the priority, the better chance the foreign national will be released.
Detainee Rights
Most detainees have a number of important rights. Some of these include:
- The right to counsel (but not at government expense);
- the right to request political asylum;
- the right to contact a consular or diplomatic officer of the person's home country;
- the right to challenge a transfer to another detention center that would infringe upon the right to counsel; and
- the right to medical treatment.
The laws regarding detention are complex and often do not favor release. If you or someone you care about is detained by ICE, you are well-advised to seek the assistance of an attorney. The immigration lawyers at Smith & Garg, LLC are experienced professionals who are dedicated to helping immigrants in need.
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