ICE detention is in the spotlight. Knowing who ICE can detain and under what circumstances is essential if you’re an immigrant or have a family member who is.
U.S. Immigration and Customs Enforcement (ICE) has broad authority to arrest and detain non-citizens. This authority comes from federal law.
ICE’s Legal Authority to Detain
ICE relies on several key statutes, such as:
- 8 U.S. Code Section 1225: Governs inspection at the border and expedited removal. ICE often uses this for people encountered at ports of entry or near the border.
- 8 U.S. Code Section 1226: Allows ICE to arrest and detain non-citizens pending removal proceedings. Section 1226(c) mandates detention for certain criminal convictions.
- 8 U.S. Code Section 1226a: Covers non-citizens apprehended within 100 miles of the border. It’s sometimes used to justify longer detention periods.
- 8 U.S. Code Section 1231: Applies after a final order of removal, directing ICE to detain people until removal can be carried out.
Recent policies have expanded ICE’s detention authority and limited bond access in many cases. These changes are being challenged in courts nationwide.
Who ICE Routinely Detains
ICE focuses on some main groups:
- People Apprehended at the Border or Ports of Entry
Those arriving without proper documentation or seeking asylum may be placed in expedited removal. ICE detains them while screening or processing occurs.
- People with a Notice to Appear (NTA)
Non-citizens in removal proceedings may be detained at ICE’s discretion while their case proceeds in immigration court.
- People with Certain Criminal Convictions
Mandatory detention applies to individuals convicted of certain crimes under INA Section 236(c). This includes aggravated felonies, certain drug offenses, violent crimes, and firearms offenses. Mandatory detention often eliminates the ability to request bond, though courts sometimes limit its reach.
- People with a Final Order of Removal
Once an immigration judge issues a final removal order, ICE typically detains the person until removal can occur.
- People Subject to Special Procedures or Prior Orders
Those facing reinstatement of removal, prior deportation orders, or certain fraud grounds may also be detained, often through expedited administrative processes.
Bond, Custody Review, and Immigration Judges
For many detainees, immigration judges can review custody and grant bond, unless mandatory detention applies.
But recently, ICE policies have restricted bond access for some groups. Several federal lawsuits are challenging these rules, and court injunctions have restored bond rights in certain districts.
Alternatives to Detention (ATD)
Not everyone ends up behind bars. ICE runs Alternatives to Detention programs like electronic monitoring, supervision, and case management. These allow non-citizens to remain in the community while ensuring compliance with court dates and removal orders. ATD programs are often effective and less costly than detention.
Rights and Practical Steps if Detained
If you or a loved one is detained:
- You have the right to contact a lawyer. ICE does not provide one.
- Foreign nationals can contact their consulate.
- If eligible, request a bond redetermination hearing through an immigration judge.
Practical steps for families:
- Gather full identifying info: name, DOB, country of birth, and A-Number if available.
- Use the ICE Online Detainee Locator System (ODLS) to find the person.
- If ODLS fails, call the local ICE ERO office.
- Arrange legal representation immediately. Early counsel can improve outcomes, including bond motions and defenses.
Special Situations
- Asylum seekers may be detained during credible-fear interviews, even if they later enter full immigration court proceedings.
- Re-entry after prior removal can trigger reinstatement of removal, leading to detention without reopening prior proceedings.
Recent Policy Changes You Need to Know
Recently, ICE issued broader detention guidance that limited bond hearings for many detainees. Legal groups and federal courts are actively challenging this. If someone is detained, check local court orders and consult legal aid or advocacy groups to understand current policies in your area.
Ask a Licensed Immigration Attorney for Free
If you’re navigating ICE detention, it is necessary that you get reliable legal guidance. Ask you questions FREE on ImmigrationQuestion.com and get answers from licensed attorneys. There, you can select from 100+ immigration attorneys for professional advice and support.
Frequently Asked Questions
Who can ICE detain?
ICE can detain non-citizens subject to removal, inadmissible at the border, or under certain criminal or prior deportation orders.
Is bond always available?
Mandatory detention limits bond for certain criminal convictions. Otherwise, an immigration judge may review custody.
What are Alternatives to Detention?
Alternatives to Detention include electronic monitoring and case management. It allows an immigrant’s release while ensuring compliance with proceedings.
Can I contact ICE for a detainee?
Yes. Use the ODLS locator online or call the local ICE ERO office.
Should I hire a lawyer if ICE arrests me?
Absolutely. Legal representation can help in requesting bond, navigating proceedings, and protecting your rights.
