In immigration law, “Apprehension” refers to the arrest of a non-citizen alien by Immigration and Customs and Enforcement agents (ICE).
For an apprehension or arrest to be valid, the alien must be:
- An individual who is 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 (usually due to a criminal record or a violation of entry policies)
A period of detention in a holding facility follows the alien’s apprehension as they await their immigration hearings. Consequently, immigration laws covering the arrest of deportable or inadmissible aliens are sometimes called “Apprehension and Detention” laws. Immigrant apprehension must be conducted with a valid warrant, just as in criminal arrests.
Each arrest of the same alien within a fiscal year counts as a separate arrest. Deportation or removal is often based on information such as criminal arrests and the number of apprehensions in a given period of time.
What Is Deportation?
A person is deported when the United States orders them to leave the country. Removal, also known as deportation, can be a frightening experience for individuals and their families.
Deportation regulations are complicated, so hiring a deportation/removal lawyer is highly recommended.
A skilled attorney can present any one of the following arguments to argue against deportation:
- Cancellation of a removal order
- Prosecutorial discretion
- Asylum requests
- Arguments based on the United Nations Convention Against Torture, and
- An appeal of an order or removal.
Your attorney will fight to keep you in the country. You are safer if you hire a lawyer.
What Is Removal?
When the United States government determines that a foreign-born person should no longer be in the United States, the individual may be lawfully removed from the country.
What Are the Conditions for the Release of a Detained Alien?
When an alien is apprehended and detained, they can only be released at the discretion of the Attorney General. This process is called “Release”. Release may take the following forms:
- Bond (bail of at least $1,500)
- Conditions of conditional parole
As is the case with many other non-citizen immigrants, aliens released on conditional parole are not eligible for work authorization programs. In addition, the Attorney can revoke the bond or parole at any time, re-apprehend the person, and detain them again if necessary. Attorney General decisions are usually final and cannot be appealed.
One of the main reasons for releasing someone is to protect a witness or a person cooperating with authorities in the investigation of criminal activity. Moreover, the Attorney General must certify that the release of the alien will not pose a risk to the public and that the alien will appear in any subsequent court hearings.
In considering whether to release an alien, authorities will also consider the nature and severity of the offense committed by the alien. An alien who committed a crime involving violence, for example, might not be approved for release.
If an Individual Is Apprehended, Do They Immediately Face Deportation or Removal?
Apprehension can be followed by immediate deportation or removal in some jurisdictions. It is especially true for aliens who have committed felonies or have been charged with several crimes.
Deportation is increasingly accompanied by computer-monitoring systems such as the Secure Communities Fingerprint Program. When an apprehended alien is detained, they will be subjected to a computerized fingerprint scan. The scan will reveal important information that could lead to an expedited or immediate deportation.
In the past, illegal immigrants were deported mainly for serious crimes such as drug offenses, violent crimes, or crimes of moral turpitude. However, recent immigration policies have also included minor offenses as grounds for immediate deportation.
Legal advice is best regarding the policies of a given state, so consult with a lawyer.
If an Immigrant Re-Enters the Country Illegally After Being Deported, What Happens?
An alien deported from the United States cannot lawfully re-enter for five years or twenty years for a second removal. An alien who disregards these exclusion periods may be ordered removed again if they attempt to re-enter the country.
Even though removal proceedings are not criminal in nature, repeat offenders may face lengthy jail sentences.
Border patrol officers now have significant discretion to turn back undocumented aliens without a judicial hearing if there is a reasonable likelihood that the alien is lying about their identity. Some believe that it saves the court system from overcrowding, but naysayers say that it ignores the due process rights of immigrants.
Is There Anything Immigrants Can Do If They Are Charged With Illegal Re-Entry?
Generally speaking, deportations of aliens living peacefully in the U.S. are relatively rare. The authorities will usually allow someone threatened with deportation to leave willingly, which may prevent future restrictions on lawful re-entry.
An alien can bypass the five-year and 20-year restrictions if he or she files an application with the Attorney General. In most cases, applications are unsuccessful unless there is a valid reason, such as a miscarriage of justice or an emergency. I-212 forms are required if an immigrant wishes to enter the country after being deported legally.
A deportation order can be declared null and void by immigrants. Despite this, immigration courts typically consider the case closed once deportation is ordered. The records of deportation proceedings cannot be reopened or reconsidered unless there has been a “gross miscarriage of justice.”
The undocumented alien is often accused of committing a crime in deportation cases. An alien deported for an aggravated felony is permanently exiled from the U.S. Immigrants who are charged with a crime have the right to an attorney before they are deported.
What Are the Reasons for Deportation or Exclusion?
Because staying in the United States is a privilege and not a right for non-citizens, the United States government has the right to force an individual to return to their home country for several reasons, including:
- Fraudulently obtaining a visa, green card, etc.
- A narcotics crime was committed against them. (Note: Possession of a small amount of marijuana may be an exception).
- A conviction for murder, illegal trafficking of firearms, money laundering, or a crime of violence with a five-year or longer sentence. The attempt or conspiracy to commit these crimes is also grounds for deportation.
How to Stop Removal/Deportation
Despite being served with an order for deportation proceedings, you may still be able to stay in the United States. There are several ways you can avoid deportation. These include:
To suspend deportation, a deportable alien must meet the following criteria:
- The alien must be continuously and physically present in the United States for at least seven years.
- The alien must be of sound moral character.
Aliens or their families must demonstrate that deportation would cause undue hardship.
Individuals may be granted asylum if they have been persecuted or fear persecution in their home country because:
- Political belief or opinion
- Membership in a certain social group
Is a Lawyer Necessary if I Have Issues with Immigration Detention?
If you or one of your loved ones is facing issues with immigration apprehension, you may wish to contact an immigration lawyer immediately. Experienced immigration attorneys are familiar with the overlap between criminal and immigration laws in your area.