When Facing Deportation, What Determines Whether You Are Detained or Released?
Author: Deportation lawyer Alena Shautsova
The Department of Homeland Security (DOHS) weighs two main factors when deciding whether to detain or release an immigrant who faces deportation: flight risk and risk to the community. The most heavily weighed factor is risk to the community, which aligns with the Immigration and Customs Enforcement (ICE) memorandum that addresses prosecutorial discretion and the focus on deporting immigrant criminals over immigrants with other violations. Those immigrants with aggravated felonies are top priority for detainment. ICE has limitations on how many immigrants it can detain, because it has 34,000 detention beds nationwide. Recent sequestration budget cuts resulted in ICE releasing detainees.
For immigrants that the DHOS decides not to detain and instead releases, other options come into play:
- Issuing a Notice to Appear (NTA). A NTA requires the immigrant to appear before the Immigration Court, where a judge determines whether to proceed with deportation or to allow the immigrant to remain within the United States. With an NTA, the DHOS does not usually require a bond or other release conditions.
- Warrant of Arrest (WA). When immigrants were previously subject to deportation and fled but ICE officers subsequently have located them and taken them into custody, officers can issue an arrest warrant.
- Release on own recognizance. Immigrants can be served an NTA, arrest warrant and then released on their own recognizance, which means authorities trust the immigrant to appear at the removal hearing.
- Bond. After arrest, when there is a flight risk, authorities can require an appearance bond.
- Alternative to Detention (ATD). An ATD is a substitute for detainment that is similar to a house arrest and uses an electronic ankle bracelet or other device that tracks the immigrant’s location.
If you are an immigrant facing deportation, you should consult a lawyer for legal representation to protect your rights.