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Procedures Followed by ICE for
The Arrest and Detention of
Non-Criminal Aliens

ICE fingerprinting alien

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:

  1. Local family ties;
  2. Financial ability to post bond.
  3. Manner of entry and length of time in the United States;
  4. Prior arrests, convictions, appearances at hearings;
  5. Membership in community organization;
  6. 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.

Articles related to this topic

  • NewYork and New Jersey Deportation and Removal Defense Lawyers
  • WAIVERS OF DEPORTATION - Attorney Moses Apsan, 30 years Experience in Deportation Defense
  • Stop Deportation with Prosecutorial Discretion - The Morton Memo
  • How to Expedite I-601 Waiver of Grounds of Inadmissibility
  • Ice Online Immigration Detainee Locator System
  • ICE Memorandum: apprehension, mandatory detention, and removal of aliens
  • Section 287(g) Immigration and Nationality Act - Delegation of Immigration Authority
  • A Detailed List of Immigration( ICE) Detention Centers
  • A Complete List of ICE Field Offices
  • How to Obtain a Section 212(h) Waiver for Certain Crimes
  • How to obtain a 212(i), waiver for misrepresentation, fraud, or deportation
  • A Summary of the Major Provisions of the New I-601A Provisional Waivers

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    Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 30 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..
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