Detention During Deportation Proceedings & Legal Recourse

U.S. Immigration and Customs Enforcement (ICE) is the government entity that enforces federal laws governing border control, customs, trade, and immigration in the interest of national security. When a foreign national is detained by ICE, the case may be defended, but the individual detained should act quickly. Foreign nationals can be detained by U.S. Immigration while their deportation cases are pending. ICE detains persons who are considered a “flight risk” and may move to another location within the U.S. or may be a threat to public safety. Detention permits the government to secure the non-citizen’s appearance before the Immigration Court.

There are a number of reasons that ICE can detain an immigrant, including when the person has committed a crime, has arrived at the border without having a valid visa or a visa at all, has an outstanding removal or deportation order on record, or has missed prior hearing dates in Immigration Court.

If an individual receives a deportation order, it is best to consult an immigration lawyer. If an immigration attorney cannot be contacted by the non-citizen, his or her family should seek the help of an attorney on the person’s behalf. If the detainee is located in a Department of Homeland Security (DHS) facility, someone with a relationship to the detainee can call his or her deportation officer. The officer can typically provide information about how to call or visit the detainee as well as other details. It is important to understand that any information given to the deportation officer can be used as evidence against the detainee in Immigration Court.

After the initial detention, an individual may seek to be released on a bond. In instances when a criminal conviction forms the basis for detention, it may not be possible to receive a bond. There are two types of immigration bonds potentially available to non-citizens detained by ICE. As long as the person is not a threat to national security or public safety, he or she may be eligible for a delivery bond or a voluntary departure bond:

• Delivery Bond: A detainee may be eligible for a delivery bond if ICE or the immigration judge so decides. Under a delivery bond, a person must be issued a Notice of Custody Conditions and Warrant of Arrest before being released. The reason behind a delivery bond is to ensure that detainees actually appear at their scheduled immigration hearings. This type of bond also allows the immigrant to consult with an attorney and spend time with his or her family until the hearing.
• Voluntary Departure Bond: These cases involve an immigration judge granting voluntary departure. In other words, the immigrant agrees to leave the United States at his or her own expense and within a certain period of time. The departure bond that is initially paid to ICE is refundable once the individual has left the country. However, the bond is forfeited if the person fails to leave as agreed.

A detention by ICE does not mean automatic deportation. Instead, there are steps a detainee can take to plead his or her case to an immigration judge, who will make the final decision.

Last reviewed October 2023