Can ICE detain you even if you have a pending immigration case?

Can ICE lawfully detain you if you have an immigration case pending with USCIS? In this video, attorney Jacob Sapochnick breaks down everything you need to know about this important topic, including your rights if an ICE agent visits your home or workplace.

To learn how to protect yourself, please keep on watching this video.

Overview

Q: Are undocumented immigrants at risk of deportation if they have a pending application or petition for an immigration benefit with the U.S. Citizenship or Immigration Services (USCIS) such as an I-130 petition, I-485 green card petition, I-360 VAWA petition, etc.?

Before we can answer this question, we must first consider how U.S. Immigration and Customs Enforcement (ICE) operates. ICE is a federal law enforcement agency operating under the Department of Homeland Security (DHS). Its primary purpose is to guard against crime at the border and enforce the nation’s immigration laws to prevent illegal immigration.

As a result, ICE agents can detain individuals that they believe are present in the United States in violation of the law. This includes individuals who overstayed their U.S. visa, those who entered the country without lawful inspection at a U.S. port of entry., and those who have committed certain immigration violations.

Therefore, having a pending application or petition for an immigration benefit with USCIS does not provide automatic protection from deportation. In fact, individuals may be detained at any stage of the immigration process.

Q: Under what circumstances can ICE detain a person with a pending application or petition for an immigration benefit?

Consider the following scenarios:

#1 Flight Risks

Under scenario #1, an undocumented immigrant may be detained by ICE even if they have a pending application or petition with USCIS if they are deemed a flight risk by immigration authorities.

A flight risk is a person who is likely to leave the country before appearing at a scheduled court hearing. In this case, an ICE agent may detain you if it is believed that you will fail to appear at an immigration court hearing as supported by credible evidence.

#2 Threat to Public Safety or National Security

In the second scenario, an undocumented immigrant may be detained by ICE despite having a pending case if they are a known threat to public safety or national security. This occurs when a person has a criminal history and/or violations that are serious enough to pose a risk to the general population, such as violent crimes.

#3 Prior Deportation Orders

An undocumented person with prior deportation orders issued by an immigration judge, who has failed to depart the United States, may also be detained by ICE officials despite having a pending case with USCIS.

Such individuals may be a priority for removal due to their failure to comply with a removal order.

#4 Entry Without Inspection

An undocumented person who entered the country without legal inspection may still be detained by ICE despite having a pending immigration case with USCIS.

Similarly, such individuals may be a priority for removal. In such a scenario, a detained person is entitled to due process of law including a hearing before an immigration judge.

The Detention Process

When an individual is detained by Immigration and Customs Enforcement (ICE) in the United States they are entitled to a bond hearing.

A bond hearing is a court proceeding where a judge decides if a detained person can be released on bond before their trial. The judge sets the amount and conditions of the bond.

It is important to understand that not everyone is eligible for release on bond. Some individuals may be removed from the United States expeditiously without a hearing before an immigration judge. Having a criminal record, prior deportation orders, and immigration violations are examples that can lead to expedited removal.

How to Find a Detained Immigrant

You can use the ICE detainee locator to find a person currently held by U.S. Immigration and Customs Enforcement (ICE). To use the Online Detainee Locator System, you can either enter the person’s:

Complete name, country of birth, and birth date, or
Country of birth and 9-digit A-number, which may be printed on correspondences from the U.S. Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR Immigration Court)
- If you are an undocumented immigrant you should provide your family member’s with your Alien Number to easily locate you in the system

If you cannot find someone who has been detained by immigration using the online system, you may contact an ICE Enforcement and Removal Operations (ERO) field office.

If you know the facility where the person is being held, contact the immigration detention facility directly.

If ICE Visits Your Home or Workplace: Know These Rights

All people living in the United States, including undocumented immigrants have constitutional rights.

Remember:

You do not have to open the door. You do not have to open the door or let the officers into your home unless they have a valid search warrant signed by a judge.
You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.
You have the right to speak with an attorney. If you are detained or taken into custody, you have the right to seek an attorney and to receive a phone call from your attorney.

You may show a know-your-rights card (English) (Spanish) to the officer that explains that you will remain silent and wish to speak to an attorney.

NEVER provide fake documents misrepresenting your immigration status or identity.

The Takeaway

If you are an undocumented person in the United States, ensure that you have a plan in place in case of detention such as arranging for childcare, safekeeping of important documents, having the contact information of legal representatives, emergency contact numbers, etc. to prepare your family in case of an emergency.

It is also wise to contact an attorney in advance to discuss the detention process and alternative legal avenues for you to remain in the United States. We are here to support you. If you need assistance, please contact us for a consultation.

Contact Us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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