Immigration Detention
With the increasing number of undocumented or illegal immigrants, when an alien is arrested, he or she is detained. In California, detainees are treated like prisoners even before appearing before an immigration court. If your loved one has been arrested and detained by immigration officers, reach out to the Orange County Immigration Attorney firm. We will guide you on the detention process and help you get in touch with the detained person to secure a bail bond or prepare for a hearing.
What is Immigration Detention?
Immigration detention is a policy developed to hold undocumented immigrants - foreigners suspected to have violated their visa or lawful residency status and aliens facing a deportation order until they appear before the immigration court and a verdict is given. The Immigration and Nationality Act (INA) provides power to the United States Attorney General to arrest and detain the people listed above until an order is given by an immigration judge to remove them in the country or have them return to the community.
Immigrant detainees facing removal charges can be released on bail, but only if they have no past criminal conviction record. For absent mandatory detention, the arrested foreigners have to prove to an immigration court in a redetermination hearing that he or she will not be a risk to anyone or anything upon release. When issuing the bail amount, it is paramount to consider the financial capabilities of the detainee because the bail is set so high, thus continued detention.
Reasons for Detaining Immigrants
If a noncitizen or immigrant awaiting deportation is feared to change location in the U.S or is a threat to the safety of the public, then the government grants the A.G. to detain such people so that their appearance in an immigration court is guaranteed. The authorities that can detain you are the Immigration and Customs Enforcement and the Department of Homeland Security.
The reasons for detaining immigrants include:
- Committing a crime
- They tried to enter the U.S. border without a visa while they are seeking asylum or refuge
- A deportation order from immigration court or missing a past immigration hearing
What Are The Detention Standards in California?
If you are held in an immigration detention center in California, you are likely to be far from your loved ones and family, which might be stressful. In Orange County, immigration detention facilities like Theo Lacy and James A. Music are managed by the Orange County sheriff’s department, which is contracted and funded by the Immigration and Customs Enforcement (ICE). These facilities have 958 detainee beds with each of these beds receiving $118 every day.
Reports show that these detainees are subjected to severe disciplinary segregation for minor offenses, which is against human rights. Also, despite these detainees undergoing mental stress as a result of being away from their loved ones, the facilities offer minimal psychiatric health care. Federal officers who inspect the kitchen facilities and food stores of Theo Lacy in 2017 found out that these immigrant detainees were being fed spoiled meals and living in insecure conditions. Cases of abuse were also reported, but things have changed after the report was implemented.
The ICE paid $1.7 million in excess in 2019 compared to the fiscal year 2017-2018. The money came from county funds, and it aimed to improve the living conditions, safety, and medical care in these immigration detention facilities. Local governments are urged to pay more attention to how ICE funds are used by private contractors in these detention facilities to ensure applicable detentions standards or suitable living conditions. The contract between the facility and the ICE is what should define the measures to be met. Some of these standards include:
- Constitutional Standards
According to government regulation, the moment you are taken to immigration custody, you are entitled to basic human needs like food, shelter, clothing, medical care, and safe surroundings. In California, as said earlier, immigrant detainees are treated like prisoners and are subjected to punishment even before trial. Those who do this are violating constitutional standards. The Ninth Circuit Court of Appeal covering California ruled that civil detainees are entitled to better treatment than those who have been convicted.
Immigrant detainees are also entitled to a due immigration court process that includes the right to legal representation and a fair hearing. The federal government does not pay the attorney fee, leaving detainees to pay using their own money. However, in California, immigrant detainees with mental disabilities get legal representation from the government free of charge.
Some facilities in California were mentioned in Lyon v. ICE case in 2016 for denying immigrant detainees access to legal calls. It was argued that the detainees had limited access to communication with their legal representatives and state facilities, which interfered with their right to counsel and full and fair immigration hearing. Consequently, the facilities were ordered to provide phone booths in housing units and allow detainees their constitutional rights.
- California Detention Standards
Immigration detention centers are not different from jails. So, all facilities with county jails or juvenile centers are subject to State’s detention standards under Penal Code (4000, et seq.) and Welfare and Institutions Code section 207, et seq. These laws were enforced to reduce suicide cases, train prison personnel, improve medical care, and address disciplinary segregation. Security and mail services were also established to create a conducive environment for detainees and prisoners.
ICE operates these facilities differently, hence the reason for a variance from one detention facility to another. Those that are independently run by the ICE adhere to the right standards, but those driven by contracts like the local sheriff department or police might not meet the proper measures. For instance, if you have a medical condition and you are detained among convicted state prisoners, you might not be able to access the medical care you need to ensure you recover well. If you have a reported health issue, but no one seems to care about it, it is advisable to call an immigration attorney.
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What Happens After an Arrest and You Are in Immigration Custody?
Many immigrants have their rights violated when in custody because they are not aware of their rights. After an arrest, you should be released if the immigration officers feel that you will not miss appointments or hearings. Again, you are eligible to release if you don’t endanger the lives of the public. In these two circumstances, an immigrant detainee can be released on a bail bond or through a supervised release. Supervised release programs involve the immigrant making regular appointments to the local ICE offices or putting on an ankle bracelet.
In the event you aren’t being released, you should request the Department of Homeland Security to free you or set a bail bond amount. Sometimes the bail bond amount can be set very high, hence the need to reach an immigration lawyer so that you can have a bail bond hearing.
Removal Proceeding Process
If a removal order is issued against you, it means you are an alien, and the U.S. government wants you out of the country. After a removal process, you are not allowed to set foot in the U.S. again unless you were denied entry for only ten years. If the removal order is for a lifetime, you will not enter the country again.
The removal process commences when you are arrested and detained in immigration custody. The detention facilities might be U.S. prisons or separate detention centers. The majority of immigrants who face removal are arrested for crimes different from immigration. In such cases, the immigrant detainee is kept on hold until he or she is transferred to immigration custody.
The timeline for removal varies highly, but it can commence after two weeks and go up to 90 days. If you are an alien arrested at the border, the DHS decides what to do with you. Arriving aliens are not entitled to release on bail bond. However, they might be allowed to enter the country when awaiting the decision of the DHS on removal. Keep in mind most of the time, decisions on such cases are made very fast such that within no time, the alien might find himself or herself in a flight out of the U.S.
Those arrested at the border never go to court, but for those detained within the U.S., they must appear for a hearing before the U.S. immigration court near the place of custody. The trial determines if a person will be released on bail or not.
Immigration Bail Bond Process
The purpose of the bail bond, in this case, is to allow the defendant or the person facing a removal order to be out of detention pending case hearing and ruling. The bail bond amount acts as an insurance that the alien will make appearances in court after release. The bail amount is set depending on the financial capabilities of the immigrant, the probability of winning the ruling, and the connection of the immigrant to the society.
Getting a low bail amount requires that you have an excellent legal representation to convince the immigration judge. The amount, however, cannot go below $1500 or exceed $20,000. Additionally, you would not get a bail bond if you were detained for suspected terrorism or aggravated felonies. Such crimes can lead to mandatory detention, which requires the expertise of a criminal attorney.
You will remain in custody until a close relative, friend, or family member posts bail. The people posting bail amount directly to the ICE must be lawful permanent residents or citizens of the United States. They can use a bail bonds company to post the bail, but this is not always the best option because these companies have a fee; the amount of the premium can go up to 15% of the bail amount plus refundable collateral.
After bail is posted, the immigrant detainee has to wait for one to five days for the obligation to be processed. Once it is processed, the person is released from custody.
Is it Possible to Get in Touch With an Immigrant Detainee?
Many people often wonder if it is possible to get in contact with a loved one who has been detained as an alien. The answer is yes. It is possible for people who are citizens of the U.S., green card holders, and even noncitizens who have valid immigration papers to visit an alien detainee. Ensure you have an identity card or any other documentation that can prove you are in the U.S. legally. Otherwise, you might also end up being detained.
Numerous detention facilities have different policies on visitation. In some, there is no contact allowed with the detainee while in other detention facilities, touching is allowed. In the latter places, a visitor can stay in the same room with the detainee and even hug. On the issue of visitation hours, visiting hours and days of visitation vary. Before visiting someone, ensure that you get in touch with the facility where the detainee is held and find out about the hours you should visit so that you can plan your schedule correctly.
For those visitors with transgender detainees, there are many limits on how these people are detained since they stay in protective custody. The reason being the ICE doesn’t know where they can have them remain safely without being physically or sexually abused.
The issue of transgender immigrant detainees is grave because they undergo mental and physical torture. Remember they can’t stay in the same housing units with the general public because of sexual and physical harassment. Thus, they remain isolated in small rooms where they live in poor conditions without access to medical care and the right living conditions. Some of these alien transgender detainees come from home countries where they are not considered humans, hence being deported back to these countries is their last choice. They end up persevering these adverse conditions until a hearing at an immigration court or when someone posts bail for their release.
Actions You Should Take After a Loved One Has Been Detained
When a foreigner is detained by the ICE, it is difficult for them to take any action, but people close to the detainee can make a huge difference. If you find out a loved one is in detention, first, contact the ICE Enforcement and Removal Operations field officer in your local area and find out where the person is held and other details.
The problem with using the ICE detainee locator site is that if the arrest you are looking for is recent or the arrested alien is below 18 years of age, the information might not be found, but you can visit the website and get all the details you need about the immigrant detainee if the records are updated. The most critical information you must have about the detainee includes the green card number, the correct name as recorded by ICE, date, and country of birth.
If the detainee was arrested for a crime, you might not find them in ICE detention facilities. Instead, check correctional facilities since the person might be detained there awaiting transfer to ICE detention centers. If your loved one is in the ICE detention center, after finding out the name of the center, the next thing is calling the deportation officer on the case. The officer will help you visit the detainee or send some items that the person could use while in detention. Keep in mind that revealing critical information about the detainee to the deportation officer might be used against the detainee in an immigration hearing. Therefore, avoid disclosing any information that might incriminate the detainee.
The deportation officer must provide voluntary departure or stipulate any form of release. There are many options a detainee can choose from, but it is always critical to have your immigration attorney pick the best choice for you. These options include voluntary departure, temporary protected status, cancellation of removal, stipulated removal, and Deferred Action for Childhood Removal, some of which are recommended by the immigration judge. Picking voluntary departure eliminates the order of removal, but you will no longer be entitled to asylum or cancellation of removal. Do much homework about these options before going for a trial or hearing.
For those who choose not to call the deportation officer, the other alternative for tracking an immigrant detainee is parting with hefty amounts of money for a highly rated immigration attorney. Such legal practitioners will use their network to track down the detainee. However, they should do it fast, especially if the detainee had a previous removal order or when he or she is facing the second deportation. Such aliens can be deported within hours or days, hence the need to act fast.
What Happens If You Fail to Make it to Your Immigration Court Removal Trial?
If you are an alien and fails to appear before an immigration court after being served with a Notice to Appear (NTA), you should request for a reschedule, otherwise you will be tried in absentia, which can lead to deportation. The NTA often states the date and place of the removal hearing to ensure the person facing charges doesn’t fail to appear before the court.
For a missed hearing, one should file a motion for continuance that might be denied or granted depending on the immigration judge. Ensure you have an immigration lawyer alongside to increase the chances of motion for continuance being given.
Your attorney should present a written proposal to the judge on the reasons for rescheduling the hearing. Some of the right ideas you can use to build a good case for a motion of continuance is showing medical records that you will be undertaking a medical procedure like surgery on the hearing date. Another one is proving to the judge that an immediate family member will undergo many difficulties if the motion isn’t granted.
Those requesting a motion of continuance for the first time have higher chances of having the motion granted than those seeking for the second time.
When is The Right Time to File For a Motion of Continuance?
When you receive a Notice to Appear and realize that the set date is not adequate to prepare for the case or you won’t be available, file for the motion of continuance immediately, when filing the proposal, suggest a convenient date. The motion will be valid if you follow the right procedure and do it before the deadline.
If the hearing date matures without being granted a motion for continuance, it is essential to attend the hearing as stated in the NTA. If you fail to, the case will be determined in absentia, leading to deportation. Keep in mind that this order cannot be appealed, unlike cases where the alien appears before an immigration court hearing. When an order granting a motion for continuance is issued, you will have a month or more from the previous court date to prepare for the trial.
Witnesses and How they Can Help Defend Against Removal in an Immigration Court
After you have received an NTA or order granting a motion for continuance, you should begin to look for material and expert witnesses since they will help you build a case against deportation. The witnesses can turn around the evidence in the case, but to do that they need to be believable or credible. For that to happen, they must come to court well dressed to provide testimony for the charges you are facing. They should also be ready for argument and confrontation with lawyers from the other side, hence the need for them to have in-depth knowledge about the case.
A material witness will help you in cancellation of removal cases when he or she provides material information to confirm that you are a person of good morals; hence, a good reason not to be deported. The testimony will have more impact if the witness is a politician, teacher, preacher, or police officer.
Contact an Immigration Attorney Near Me
Facing a removal order or deportation after being detained from your dream country is not easy. Contact the Orange County Immigration Attorney at 714-909-0426 for help. We will fight for the cancelation of the removal order that could ensure that you can continue living in the United States.