I Have Been Arrested By Immigration…..Now What?
Published: March 18, 2010

At the risk of sounding cliché’ or predictable, the first step a detained foreign national needs to take is to get an experienced, honest immigration lawyer on the case. That is not to say, there will always be a way to prevent the foreign national’s eventual deportation (now called “removal”) from the U.S., but at least all available legal options will be on the table, including a chance to possibly post bond or assert a defense in the context of removal proceedings , along with a big picture map as to how the process works. A foreign national does not have a right to free counsel, but an opportunity to contact an attorney or family member (who in turn can contact an attorney) will be provided. Further, a foreign national will never be detained by immigration authorities and immediately whisked away on an airplane out of the country. Thus, there is generally at least a small window of time to ascertain the facts and investigate what options may be available to prevent the foreign national’s removal.

The job of arresting foreign nationals who are considered “removable” under U.S. immigration law belongs to Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security (DHS). The circumstances under which ICE will most often be prompted into action to detain a foreign national are as follows:

1) The foreign national is present in the U.S. in violation of their status, without status, or working without proper authorization. BUT, given that there are anywhere between 10 to 15 million of this category in the U.S., these violations by themselves (with some exceptions) will generally not prompt ICE action. Simply, there are just plain too many of these violators, and usually, if ICE acts to detain a foreign national in this category, there is some other factor at play, which leads us to the next scenario.

2) The out of status/no status foreign national gets arrested by local, state or federal law enforcement authorities for alleged criminal behavior and in turn, are reported to ICE. Whether it is a DUI offense, a retail theft charge, or something more serious, a police department or law enforcement agency, just might take the opportunity to inquire into the alleged offender’s immigration status, and report the individual to ICE. Unfortunately, just being involved in a fender-bender where the police are called, may be enough to get ICE involved, assuming the foreign national runs into really bad luck. Other times, the foreign national only learns of ICE involvement when he shows up for court and is greeted by 2 or 3 ICE officers.

3) The foreign national is the subject of a previous deportation or removal order. If the foreign national was already the subject of deportation or removal proceedings, and previously ordered deported, but never left, ICE may very well learn about it, and thus a knock on the door will always be a concern. Whether it’s been 6 months or 16 years, an order of deportation or removal will eventually prompt ICE into action.

4) The foreign national is a lawful permanent resident and is convicted of a “removable” offense. The foreign national who is a U.S. permanent resident and serving a prison sentence, may have ICE waiting for them at the time of their release. Usually, ICE interest in the case is known to the foreign national and their family ahead of time when they place a “detainer” on the foreign national in question. That means that upon their release from prison, the foreign national is transferred into ICE custody, where he will remained detained throughout removal proceedings, unless they are able to secure release with the posting of a bond. Other permanent residents with older criminal records are brought to ICE’s attention through their own, seemingly innocuous actions, such as filing for naturalization, renewing their permanent resident card, or simply passing through immigration inspection upon return from a vacation abroad.

Can I post a bond? Sometimes yes, depending on the nature of the immigration charges. For individuals who are the subject of final orders of removal/deportation, generally no. However, a thorough investigation of the case background and even a Motion to Reopen, should be considered especially if there was an order entered against the foreign national “in absentia” and perhaps no proper notice of the court hearing was provided to the foreign national. Or, perhaps, the foreign national was denied effective assistance of counsel.

Also, a foreign national with a serious criminal conviction, or sometimes 2 or more non-serious ones, may have to fight hard before an immigration judge to have a bond set. Sometimes that fight can be in vain if the nature of the convictions at issue are such that the foreign national is subject to “mandatory detention” throughout proceedings. Importantly though, all foreign nationals who are in removal proceedings as a result of a guilty plea criminal conviction should give serious consideration into whether their convictions can get vacated by the underlying criminal court, due to ineffective assistance of criminal counsel and/or not being apprised of the immigration/deportation consequences before accepting the guilty plea.

Due Process of Law – Foreign Nationals and The Most Common Defenses In Removal Proceedings: If the foreign national is undocumented, or out of status, but has been in the U.S. for more than 10 years and has U.S. citizen, or permanent resident parents, children, or spouse, he may be able to eligible to plead his case before the immigration court and request “cancellation of removal”. If granted, the foreign national not only is not deported, but is awarded permanent residence.

Out of status/no status foreign nationals without 10 years in the U.S., or without the requisite U.S. family member, may be able to remain in the U.S. and even awarded U.S. residence by way of marriage to a U.S. citizen, assuming it’s a bona fide marriage. As one might expect, the nature of the marital relationship will be highly scrutinized given the timing of the marriage, and the desperate state of the foreign national.

If the foreign national is already a permanent resident, his first line of defense will likely be to request “cancellation of removal for a permanent resident”, where rehabilitation, good moral character and family ties can be a basis to terminate removal proceedings, and allow the foreign national to remain in the U.S. as a permanent resident.

Other foreign nationals may be eligible to argue an asylum based defense if they fear they may face persecution, political or otherwise, back in their home country.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois