What to do if detained by US immigration enforcement officers

Immigration enforcement measures have been significantly ramped up by the US government as they vow to remove millions of “illegal aliens” “violent aliens” and so on.

The statistics show that the level of enforcement is commensurate with the previous administration, but the shock and awe impact of the last few weeks, have driven fear into Caribbean communities and others across the US.

Remember that persons who are green card holders can have criminal law and other issues that put them in detention along with visa overstays, undocumented and other persons. Knowing how to proceed if you or a loved one is detained is useful as information allows you to make good, informed decisions.

When someone is detained, if you have their A-number that is crucial to the next steps. An A-number, or alien number is assigned to persons not born in the US. It usually contains nine digits. It can be found on a green card and looks like this, A#123456789. It is unique to that person, and one is assigned to individuals who enter or are in the country lawfully.

Importantly, an A-number is assigned to anyone who comes into contact with the vast immigration system by whatever means. Two examples of such contact include if you have previously filed an immigration application, an A-number will be on all documents. Another example is if you were arrested at the border and allowed to enter, then you usually would get documentation for a court that has an assigned A-number.

People who are detained may be placed in detention centers far from home and far from where they were initially held. The government website https://www.ice.gov/detention-facilities gives information on the location of detention centers across the country and basic information about the facility.

The inability to find a loved one ‘can be stressful as you can never be sure where someone is being held. There is an ICE Locator tool that can be used to find loved ones. The website for ICE detention is https://locator.ice.gov/odls/#/search. The site allows searches by either A-number and the person’s country of birth, and the person’s biographical information can also be inputted (name, date of birth, and nationality etc.). It can be disconcerting to do a search and be unable to find a loved one, so make sure to input the information carefully. If that is done and one still cannot find the person, it’s time to seek expert advice.

When you have located the person, contact with them should be quickly arranged.  When people are isolated, they may choose to return home without fighting for their case, even if they have an immigration benefit that should be successful or have a court case that is likely to end in their favour.

Contact with a detention facility should be urgently made using the methods on their website (usually emails and calls to a case manager who is assigned to the person detained). This initial contact is to schedule calls or visits. Some facilities allow for in-person visits while others may provide video-visitation only. Most facilities seem to prefer Skype, so it must be coordinated. Telecommunication is usually recorded so that is important to know, especially where there are criminal cases also concurrently with immigration breaches.

If an attorney is retained on behalf of a detainee, they are afforded certain courtesies, including a private room to speak as well as there can be communication between the two that can be labelled “legal correspondence” that the facility staff is not to interfere with and so on.

Calls are allowed to be made by detainees to attorneys and others. They get accounts that money can be added to by friends and family. They can also call collect. Attorneys, in some cases, usually accept such charges for existing clients, and in the current climate, some Attorneys are even accepting such charges from potential clients, seeking an attorney.

If someone is arrested, ensure that you write down any details as the arrest happened and contact a resource that can help. Increasingly raids are taking place at workplaces, public places and even outside courts. The first inclination is to video such arrests, but a written narrative is also very useful. If there is existing immigration and or criminal law documentation for the person, put all of those together.

Once the person is detained, they will be going to immigration court at some time. The Executive Office of Immigration Review (EOIR) hears immigration cases in the immigration courts across the country. They hear virtually (called web-based hearings) and in person. To know where a person is going to court, their A-number can again assist. The website that has details about all the immigration courts is https://acis.eoir.justice.gov/en/ .

There is also an automated 1-800 that has prompts. Remember that where a case is heard in the immigration court depends on several things. The location of the facility, where the person was arrested, where the immigration judge is sitting to hear the case and the case law regarding jurisdiction when those three things are different is critical.

Unfortunately, there are several groups of people who may not automatically be routed to be before an immigration judge. One group of individuals who do not have a right to a court hearing and may be deported are those who had been previously ordered removed by an immigration judge. This could mean their case is finished, and they lost the case; it can also mean they did not attend a court hearing and were ordered removed in their absence and in some cases, it means that they had actually been ordered and then deported and have returned to the country.

Where a person has a conviction for specific offences, (usually very serious offences) and that person does not have a lawful status in the USA, such a person can also be removed from the country without a hearing. At the borders, unless the interviewing asylum officer is convinced there is a credible fear on your part that you might suffer harm or is convinced that you have suffered harm in the past, in your country, you can also be removed without seeing an immigration judge.

People with court cases and their family members must be vigilant regarding their cases. Initially, the person gets what’s called a Notice to Appear (NTA). It is the start of the court case. It is a date to attend the court and if you are in custody, you will be taken before the judge or have a virtual hearing from the facility. When you are not in custody, it is more difficult as sometimes there is an incorrect date on that first notice. You must make every effort to get the correct date because failing to attend court can lead to your absence. 

Once you are in removal proceedings, it takes a while. There are usually many dates before the immigration judge. Ask for time to get an Attorney if you don’t have one. Immigration courts don’t assign attorneys to people, but the judge will ensure that you get a list of attorneys in the locale who work with persons with cases. Call them or have a family member call for assistance.

As an immigration court case progresses, persons who are detained in a facility become anxious and may demand that their Attorneys ask for bond, comparable to bail, in criminal cases. This is a difficult process requiring significant evidence such as that the person has ties to the community, a possible immigration benefit, and was not previously removed. In some criminal cases that have immigration issues, there may not even be a right to a bond hearing.

The immigration court proceedings are very time-consuming and emotionally harrowing even if you are not physically in a detention centre but with good information navigating it is somewhat easier.

*This article does not constitute legal advice and is intended for informational purposes only.

Nadine C Atkinson-Flowers is admitted to practice in the US and Jamaica. Her US practice is in the area of immigration, while her Jamaican practice areas include immigration and general legal consultancy. She has been an attorney for over 15 years in Jamaica and has written articles for several legal publications. She is passionate about access to justice issues and volunteers with several legal, business, children and community service organisations in Jamaica and the US. She can be contacted at info@atkinsonflowerslaw.com