In immigration law, “Apprehension” refers to the arrest of a non-citizen alien by Immigration and Customs and Enforcement agents (ICE).  In order for the apprehension or arrest to be valid, the alien must be:

  • Subject to deportation or removal under immigration laws (usually due to a criminal record or outstanding criminal charges)
  • Inadmissible to the U.S. under immigration laws (again, usually due to a criminal record or violations of entry policies)

Apprehension is usually followed by a period of detention in a holding facility while the alien waits for their immigration hearings to be initiated.  Thus, the immigration laws covering the arrest of deportable or non-admissible aliens are often called “Apprehension and Detention” laws.  As in criminal arrests, immigrant apprehension must be conducted with a valid warrant. 

Each apprehension for the same alien within the same fiscal year is counted as a separate arrest.  This is important, since the basis for deportation or removal often depends on information such as criminal arrests and the number of apprehensions in a given time frame. 

When Can a Detained Alien be Released from Detention?

If an alien is apprehended and detained, they can only be released from detention through the discretion of the Attorney General.  This is formally known as “Release”.  Release may occur:

  • Through bond (bail of at least $1,500)
  • On terms of conditional parole

If the alien is released on conditional parole, they are not eligible for any work authorization programs as are many other non-citizen immigrants.  Also, the Attorney can revoke the bond or parole at any time, re-apprehend the person, and detain them again if necessary.  Decisions issued by the Attorney Generally are final and are usually not subject to appeal or review. 

What are the Conditions for Release of an Apprehended or Detained Alien?

Release usually only occurs for one main reason: the release is necessary to protect a witness or a person cooperating with authorities in the investigation of criminal activity.  The Attorney General must also confirm that the release of the alien will not present a risk of danger to the public, and that the alien will appear in any subsequent court hearings.   

When considering the release of a detained alien, authorities will also consider the nature and severity of the offense that the alien committed.  For example, if the alien committed a crime involving violence, they might not be approved for release.

Does Apprehension Lead to Immediate Deportation or Removal?

In some jurisdictions, apprehension can be followed by an immediate deportation or removal.  This is especially true for aliens who have committed aggravated felonies or who have several criminal charges on their record.

The deportation process has increasingly been coupled with computer-monitoring systems such as the Secure Communities Fingerprint Program.  With these programs, an apprehended alien will be subject to a computer fingerprint scan when they are detained.  The scan will immediately disclose important information that could lead to an expedited or immediate deportation. 

It should be noted that in the past, apprehended immigrants were deported mainly for serious crimes such as drug offenses, violent crimes, or crimes of moral turpitude.  Recently however, immigration policies have also included minor offenses as a basis for immediate deportation.  This may depend on the jurisdiction, so it is best to consult with a lawyer for advice regarding the policies for a given state.

Do I Need a Lawyer if I Have Issues With Immigrant Apprehension?

If you or one of your loved ones is facing issues with immigration apprehension, you may wish to contact an immigration lawyer immediately.  An experienced immigration attorney will be familiar with the overlap of criminal and immigration laws in your region.