When an individual desires to come to the United States and remain here, they should be aware that there are numerous obligations and responsibilities which come with that opportunity. There are procedural requirements as well as laws that an individual must follow when they want to enter into and remain in the United States for any period of time.

Immigration laws are the laws which regulate how an individual from another country may qualify for a visa as well as under what circumstances individuals may be deported. There are numerous different types of temporary and permanent visas which are available.

Depending upon the purpose for the individual entering into the United States, a visa will be available which suits their needs. An individual who is already in the United States is required to abide by immigration laws.

There are many immigrants who legally reside in the United States and have permanent visas, or green cards. An individual who has a green card may seek to become a citizen of the United States.

It is important for immigrants to refrain from engaging in any activities which may bring removal or deportation upon them. It is always a good idea for individuals to make any attempts possible to reside within the United States legally.

Immigration laws are some of the most complex laws in the United States. The system itself can also be very complex and difficult to understand.

If an individual requires assistance resolving an immigration law issue, it may be helpful to contact an immigration lawyer.

What is Immigration Detention?

Immigration detention is a policy of holding individuals who are suspected of:

  • Suspected of illegal entry into the United States, such as not having proper documents to enter, including:
    • Travel visas;
    • Green cards;
    • Passports; or
    • Other important documentation;
  • Suspected of staying in the United States after their visa has expired, known as overstaying a visa; and
  • Subject to deportation and removal in detention until immigration authorities can make a decision regarding whether to grant a visa or to deport the individual back to their country.

The government of the United States has the authority to detain undocumented immigrants even after their arrest is complete. Congress passed the mandatory detention law in 1996 based upon the notion that aliens with specific criminal histories as a group were reoffending as well as failing to appear in court.

The statute requires the government to place immigrants in mandatory detention when they are released from criminal custody. This requires and permits the government to lock up individuals at any time and without a hearing until their deportation case is resolved.

When this occurs, the individual’s loved ones may have a difficult time locating their loved one. Many individuals are jailed even though an immigration judge may determine that they do not pose a flight risk to the community.

Pursuant to this statute, there may be cases where individuals with traffic offenses or minor in possession offenses are being incarcerated for many years after they have served their sentence or completed rehabilitation.

Why is the Person Being Detained by Immigration?

As previously noted, the purpose of a mandatory detention law was to detain immigrants who the government believed may be a flight risk or a threat to public safety. Mandatory detention ensures that the individual will appear before the Immigration Court on their court date.

There are numerous reasons why an individual may be detained by an immigration authority, which may include the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE).

These reasons an immigrant may be detained include, but are not limited to:

  • They have committed a crime or multiple crimes;
  • They arrived at the border without the proper documentation or visa before formally applying for asylum or refugee status;
  • They have an outstanding deportation order on record, pending or past due; or
  • They missed prior a immigration hearing date.

What is Illegal Detention?

In the context of immigration, illegal detention is the wrongful restraining or imprisonment of a non-citizen. It typically occurs in connection with questioning for the purposes of deportation or removal.

Illegal detention is similar to false imprisonment because it involves depriving an individual of their liberty to move about or to continue with their daily life. One of the most common examples of illegal detention occurs when an individual is wrongfully detained in connection with a crime and then further examined to determine the possibility of deporting or removing the individual from the U.S.

These types of procedures are often justifiable, especially if the individual really did commit a criminal offense. The procedures, however, are required to be conducted in a manner which conforms to criminal procedure and immigration policies.

What are Some Examples of Illegal Detention?

There are several examples of actions which may be involved in an illegal detention for immigration purposes, which may include:

  • Knowingly detaining the wrong person or suspect;
  • Detention involving:
    • excessive force;
    • intimidation; or
    • threats of harm;
  • Forcing the detention although a detention alternative should be used;
  • Detention for unusually long periods of time with no justifiable reason; and
  • Cruel or unusual treatment of the suspect, such as depriving them of bathroom breaks or making them perform humiliating acts.

It is important to note, however, that some of the rights which are afforded to United States citizens may not apply to illegal aliens and individuals who are not protected by the U.S. Constitution. If an individual is unsure of their rights as a visitor or a resident in the United States, they may wish to consult with a qualified attorney for advice.

How Can I Free the Detainee from Immigration Detention?

It is important to act quickly in a case of mandatory detention because the detainee may be deported within a few days after their initial detention. This applies especially in cases where a detainee has been deported previously or has an outstanding deportation order.

Although a detainee does not have the normal due process rights which are provided in other cases in the United States for a hearing prior to being imprisoned, they do have the right to have a bond hearing. When an individual locates a detainee, they may begin the process of freeing the individual by filing a motion for a bond hearing.

An immigration attorney can assist with this process. Every detainee has a right to a bond hearing to determine whether or not they are able to be released.

If a release is granted at the bond hearing, bond will be set. Bond is required to be paid prior to the release of the detainee occurring.

What are Some Remedies for Illegal Detention in an Immigration Context?

Depending upon the circumstances, a victim of illegal detention may be entitled to certain remedies under immigration laws in addition to other types of statues, which may include:

  • Suppression of evidence obtained from the illegal detention;
  • Retrial;
  • Re-examination of evidence in a deportation or removal hearing;
  • Collecting a damages award in a civil hearing for losses which were caused by the detention, especially if the individual is a U.S. citizen or a lawful permanent resident.

It is important to note that the availability of these remedies depends upon each individual case of illegal detention in addition to the individual’s immigration status at the time of their detention. If an abuse of the law clearly occurred, the issue will typically be resolved in favor of the victim.

Do I Need a Lawyer for Help with an Illegal Detention Case?

An illegal detention often presents numerous legal challenges. It may involve the overlap of different areas of law, such as constitutional law, criminal law, and immigration law.

If you or a loved one has been subject to an illegal detention, it may be helpful to contact a qualified immigration attorney immediately. Your lawyer can advise you how the law will affect your case as well as what types of legal action you need to pursue.