This article gives an overview of immigration detention and court processes. Immigration law and court processes are very complex. If you or a family member has to go to immigration court, it is strongly recommended you speak with an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers and legal services near you.
Know Your Rights
Regardless of your immigration status, you have certain rights. Immigration and Customs Enforcement (ICE) officers must have a search warrant signed by a federal judge if they want to enter your home without your permission. If officers knock on your door, you do not have to open it. Ask if they have a warrant. If they have a warrant, ask them to slide it under your door or show it to you through a window.
Look at the warrant carefully. It should list all of the following:
- The United States District Court for the district in which your home is located
- Your address
- The name of the person they are looking for
- The judge’s name and signature
- The dates the warrant is effective
You have the right to not let the officer enter if the warrant does not have all this information. If your child opens the door, it is as if you did.
The officer could have an ICE warrant, but that is not the same thing. An ICE warrant allows ICE officers to arrest someone who is unlawfully in the U.S. An ICE warrant does not allow officers to enter private places, like a home.
If you are stopped by a border patrol or ICE officer, you do not have to answer questions about your immigration status. You can explain your status to the officer if you want to, but you may want to speak with a lawyer first.
Do not sign any papers officers give you if you do not understand them. You may be giving up your rights. You have a right to a hearing in front of an immigration judge (IJ). You also have the right to call your country's consulate or to have someone from the Department of Homeland Security (DHS) tell your consulate that you are arrested.
You have the right to talk to a lawyer before answering any questions or signing any papers. Generally, you have the right to call a lawyer if you are detained. One exception to this right is if an immigration officer is detaining and deporting you using the expedited removal process. To learn more about this, read the "Expedited Removals" section below.
You have the right to have a lawyer with you at any hearing in front of an IJ. You do not have the right to a free court-appointed lawyer. You must find your own lawyer. You can use the Guide to Legal Help to find immigration lawyers and legal services near you.
If you are arrested, detained, and processed by Customs and Border Protection (CBP) or ICE, the officer will draft a Record of Deportable Alien (Form I-213) using information you provide. The I-213 will also have the officer’s own notes and any evidence gathered.
Next, ICE will serve you with a Notice to Appear (NTA) (Form I-862) and file a copy with the immigration court. An NTA signals the start of your deportation proceedings in immigration court.
You can get an NTA without being detained. If you get an NTA, you must go to immigration court on the date on the notice. If you do not know your court date, but have your Alien Number (A#), you can call (800) 375-5283 to check the time and date of your hearing.
If you do not go to court, you will likely be ordered deported. While you are allowed to have a lawyer represent you at your hearings, you will not get a free court-appointed lawyer like in criminal cases. Immigration law is civil law, so the government is not required to provide a lawyer for you.
Some people who are detained (in jail) will not be able to be released early on bond if they have committed certain types of misconduct in the past, such as drug crimes. These people are subject to mandatory detention. Their deportation proceedings will also be accelerated. If you are not subject to mandatory detention, you could be released with conditions. You may be released with or without a bond. There are varying levels of supervision that can include electronic monitoring or appearing at or calling in to certain immigration facilities.
DHS can set the bond amount or can ask an IJ to set it. If DHS lets an IJ set it, you must wait to see a judge. The minimum bond amount an IJ can set is $1,500. However, common bond amounts in Michigan tend to be much higher.
If DHS sets the bond, you can ask for a “bond redetermination hearing” if you feel the bond is too high. This hearing will be in front of an IJ, but it will be separate from the deportation hearings. The IJ will not reduce the bond amount just because you and your family can’t afford it. There is a chance the IJ could increase the bond amount.
Finding a Detained Relative or Friend
If you believe a relative or friend was detained by ICE, use the ICE Detainee Locator to find them. The locator cannot search for people under 18. There are two ways to search for a detainee using the locator:
- You can search using the person’s A# and country of birth. The A# is a unique 8 or 9 digit number assigned to all immigrants in deportation proceedings and certain other immigrants. The A# is found on all letters from DHS. If the A# has only 8 digits, add a zero in front of it so the system recognizes it. For example, if the person’s A# is A98765432, you must put a zero before the nine, making it A098765432.
- You can also search by name and country of birth. A detainee’s first and last names must be an exact match (for example, John Doe will not find Jon Doe or John Doe-Smith). If ICE recorded the person’s name incorrectly, you will not be able to search for the person by name unless you know their recorded name. You can narrow the search by entering the person’s date of birth.
The locator will show that a person is “Not in Custody” if they were released or deported within the past 60 days.
Sometimes it can take several days for a person’s name to be added to the ICE Detainee Locator system. You can also use DHS Vine to try to locate someone you believe is detained.
You can use the ICE Detention Center website to find a list of detention facilities, their addresses, and public telephone numbers.
The expedited removal (deportation) process allows immigration officers to quickly deport certain noncitizens without going to court. This process applies to two groups of noncitizens:
- Noncitizens at a port of entry who are not eligible to enter the U.S., and
- Noncitizens who are out of status and detained within two years of arrival and within 100 miles of a U.S. border
Generally, the expedited removal process only consists of an interview with an immigration officer. This means you will not see an IJ. There is no right to appeal the officer’s decision. You will be detained until deported, which will happen within a few hours or days. Depending on your country of origin, ICE or CBP officers may need to get a passport or other travel documents for you before you can be deported.
Noncitizens who express a credible fear of returning to their home country should be given an opportunity for a hearing with an IJ. Unfortunately, there is very little that can be done if you feel that you were wrongly deported using the expedited removal process. You can file a complaint with Customs and Border Protection or with the DHS Civil Rights and Civil Liberties Compliance Branch. However, the effectiveness of these complaints is unclear.
Reinstatement is a process that is closely connected to the expedited removal process. If you were previously deported and you returned to the U.S. before you were allowed to, your underlying deportation will be reinstated (put in place again). You will not get a hearing with an IJ even if your circumstances have changed.
Deportation cases involve at least two hearings in front of an IJ.
Master Calendar Hearing
The first hearing is called the “Master Calendar Hearing.” At the hearing (and from this point on), you will be called “the respondent.” The purpose of these hearings is to handle matters like:
- Deciding whether you were properly served with a copy of the NTA
- Confirming your current address and phone number
- Asking whether you have a lawyer or want to proceed with/out one
- Deciding whether you need an in-court interpreter (which is free)
- Pleading (admitting or denying) to the allegations about your immigration history and the charges of removability in your NTA
- Asking you to pick a country to be sent to if deported
- Telling the court the type of relief from deportation you will be applying for, if any
- Setting future dates to submit documents to the court and for the merits hearing
You are allowed one continuance (delaying the hearing for a later date) if you do not have a lawyer. If you want to hire a lawyer, the IJ must grant a minimum 10-day continuance for you to do so. However, the continuance can be several months in some situations.
You are not entitled to a free court-appointed lawyer. Deportation proceedings are very serious and complex. If you or someone you know is facing deportation, you may want to talk with an immigration lawyer. A lawyer can determine what forms of relief you are eligible for and represent you in court. Use the Guide to Legal Help to find immigration lawyers in your area.
The types of deportation relief include asylum, adjusting status (getting a green card in court), or allowing you to voluntarily depart from (leave) the U.S. To learn more about these and other types of relief, read An Overview of Asylum and visit Detention, Deportation, and Immigration Enforcement.
The “Merits Hearing” is your trial. At this hearing, both you (or your lawyer) and the lawyer for ICE will be allowed to enter evidence and call witnesses. To learn more about the general process of going to court, read What to Expect When You Go to Court. Immigration court has its own set of rules and procedures that are different from other state and federal courts.
The IJ will make a decision based on the evidence submitted, testimony provided, and the applicable immigration law. If you are successful and the IJ decides not to deport you, ICE can still appeal the decision. If the IJ denies your relief and orders you deported, you can appeal within 30 days of the decision. Appeals are sent to the Board of Immigration Appeals (BIA). An appeal to the BIA will stay (delay) a deportation until a decision is made about the lower court’s order.
The majority of the time appeals are decided based on the documents filed. It is very rare when people get to orally argue a case in front of the BIA. Depending on the outcome of the appeal, you could appeal through the federal court system all the way to the U.S. Supreme Court, but those appeals do not include a mandatory stay of deportation.
Failing to Appear at an Immigration Hearing
If you do not attend your hearing, you will be ordered deported In Absentia (while absent) because you did not appear. For an IJ to order you deported this way, ICE must show by “clear, unequivocal and convincing evidence” that you were served by regular mail at your last known address and that you are deportable.
Failing to appear at a hearing is also a bond violation. It will also make you inadmissible for five years and prevent you from getting certain forms of relief for 10 years. If you fail to appear, ICE will likely search for you at your last known address(es) in order to deport you.
In Absentia Orders can be canceled if you show any of the following:
- There was an exceptional reason why you did not appear, like an emergency or severe illness
- You were not properly served and did not know you had to appear
- You were in prison or jail at the time of the hearing
Deportation After Court
The deportation order becomes final after the BIA decision or 30 days after the IJ’s decision. If you are not in custody, you will need to report to ICE Enforcement and Removal Operations (ERO) to make a plan with a deportation officer. If you are in custody, ICE ERO will work on your removal. This could take a few days or weeks. In some cases, it can take years.
Failure to Depart
If you are allowed to voluntarily depart the U.S., you must do so within the time specified. Failure to do so could result in a fine, being inadmissible for five years, and a ten-year penalty for many forms of relief. If you fail to depart, ICE will likely search for you at your last known address(es) in order to deport you. You will not be able to seek a hearing in front of an IJ once you have been detained.