There are four major ways you may be detained if you are not a citizen of the United States of America: unlawful presence, crimes, prior removal orders and terrorism grounds. Being detained means sitting in an immigration detention center (which may be in a prison or airport) until immigration officers can determine your legal status or your ability to remain in the United States. It can take months, even years, to get out of detention, and not everyone is eligible for bond. Here are the common ways people in the United States are detained.
Unlawful Presence
A person accrues unlawful presence when he or she either overstays his or her visa, or enters the United States illegally. Unlawful presence results in the 3/10 bars (and sometimes, permanent): the inability to obtain an immigration benefit like a green card or visa until that person stays outside the United States for 3 or 10 years, depending how much unlawful presence there is. Certain general rules apply. First, unlawful presence will not begin until a person turns 18 years old, nor will unlawful presence accrue while an asylum application is pending. Alternatively, there are waivers available for certain family members of U.S. citizens and lawful permanent residents; until those waivers are granted and interviews are set, you are an open target for detention.
Criminal Activity
Even if you committed a crime many years ago, at any moment Immigration and Customs Enforcement (ICE) officers may request your criminal records and refer you to immigration court for removal. If you are not a U.S. citizen, deportation is a real possibility. You may be charged with either criminal inadmissibility (which may bar you from obtaining relief in court) or removability (which may physically remove you from the United States). Some crimes are more serious than others: murder, drug trafficking, controlled substances, sex and fraud charges carry serious immigration consequences. Other convictions are treated as ‘petty offense’ – basically, immigration judges and officers will give you a break and forgive the charges. Until ICE sorts out your specific criminal charges, you may be detained, even if your criminal case has been dropped or your prison term has been served.
Prior Removal Orders
Many people have prior removal orders and don’t realize it. Removal orders occur in many ways: issued at the border or port of entry (‘expedited’); issued by missing an immigration court date (‘in absentia’); issued, but allowed to stay and report (‘order of supervision’), and without a court hearing due to an aggravated felony conviction (‘administrative removal’). If a person has a removal order and gets pulled over, stopped, detained, convicted or otherwise found by enforcement agencies, deportation is a very real possibility. Removal operations are often carried out by officers with Enforcement and Removal Operations (ERO). Often times there is no way to challenge or otherwise help someone with a prior removal order. However, executing an order of removal is up to the discretion of ICE and ERO. If a person has a form of relief available (spouse, employer, asylum, etc.), it is possible to lift the removal.
Terrorism
Recently, the Supreme Court has recognized the ongoing threat of terrorism to the United States, and the broad powers the government has to not only prevent terrorists – and those who are affiliated with terrorism – from entering the United States or obtaining immigration relief, but to detain them. In Kerry v. Din (2014), the Supreme Court affirmed that terrorism-affiliated spouses of U.S. citizens have no right to reside in the United States. In Trump v. Hawaii (2018), the Supreme Court upheld the powers of the president to prevent citizens of certain terrorism-sponsoring countries from entering the United States. Just this year, in Nielsen v. Preap (2019), the Supreme Court upheld indefinite detention of non-citizens who have certain links to terrorism. Even when trying to do the right thing, such as applying for a green card based on a U.S. spouse or based on a grant of asylum, a person with terrorism related ties may be detained by immigration officials.
What To Do
If you are concerned that any of the above may happen to you (or a loved one) there are a few things that can be done to protect yourself, your family and your ability to stay in the country.
DO consult with an attorney to know your rights and options.
DO start gathering documents to prepare you for immigration court (legal documents, evidence for relief, paperwork from home country).
DO have a game plan in place in case you are detained (child care, bill payment, employment notification).
DO NOT lie. While you don’t have to voluntarily answer immigration questions, lying about being a U.S. citizen has grave consequences.
DO NOT skip court dates, check-ins or meetings with probation officers. This will only create more headaches and problems.
DO NOT assume immigration won’t care about dropped, expunged or sealed charges.
With offices in Malvern, Radnor, Plymouth Meeting, Bala Cynwyd, Philadelphia, Pennsylvania and Marlton, New Jersey, I practice throughout the Greater Philadelphia Area. If you are located in suburban Bucks, Chester, Delaware, Lehigh, Montgomery ,York and Philadelphia Counties, or Atlantic, Burlington, Camden, Gloucester, Mercer or Ocean Counties, contact me today for a consultation regarding your or your loved one’s case today.