The material presented in these FAQs is intended as general
information, not as specific legal advice. Also, it is applicable only to
noncitizens in the U.S.A. For other countries, go to "Outside U.S. Information".
Immigration is a rapidly changing body of law, and no two immigration cases
are identical. While we are unable to respond to questions individually,
we will gladly read your questions and comments sent to
,
and will address common concerns with additional FAQs.
1 . What is an immigration detainer? How do I know if I
have one? Can I get it out of my file, because I have been turned down for
certain placements–work release, half way house, camp.
A detainer is a hold put in your file by immigration, in the same way that
another jurisdiction will issue a detainer on you if you have a pending case
there. You can find out if you have a detainer either by asking the keeper
of the records in your facility or by writing to the ICE office in your state.
Click here to locate the nearest office.
If you have an immigration detainer you will likely not be eligible for the
lowest custody level (camp, halfway house, or work release program) in your
place of incarceration.
The detainer means that upon your release date (when you have either completed
your sentence or been granted parole/supervised release), you will be picked
up by immigration at the prison and transported to ICE custody.
Occasionally, a detainer is not issued in a timely manner, and the person
is released to the street. If that happens to you, you will likely be arrested
when you report to your parole officer or when you go to an immigration office
to file paperwork.
You will only be able to get rid of a detainer if you can convince ICE that
it has no jurisdiction over you; for example, if you are a United States
citizen but have never filed for a certificate of citizenship. If you have
a parent who was born in the U.S. or if you have a parent who naturalized
when you were under the age of 18, you may be a US citizen and you should
check it out.
2 . What if I do have another case somewhere else? Will
immigration still pick me up first?
There is no definite answer to this question, but generally it will depend
upon the seriousness of the case. Prosecutors are normally reluctant to let
a non-citizen escape the consequences of a criminal action by being removed
to freedom in their home country. However, they do have to make choices about
which cases to prosecute.
It depends. You may see an immigration judge, through televideo conferencing,
while you are still serving your sentence. Or you may have to wait until
you are in immigration detention. If at any point you agree to sign a stipulated
removal order (because you know you have absolutely no remedies), then you
will not have to appear in court. 4 . Will I get a court-appointed attorney?
No. Unlike in criminal court, there is no right to a court-appointed attorney
in immigration court. You do, however, have the right to be represented by
an attorney at your own expense. Follow the link to the State Bar in your
state for attorney referrals.
Be aware, however, that many of the providers may be restricted from helping
those with criminal convictions.
And as an aggravated felon, you have very few remedies available to you.
Before you or your family spend thousands of dollars for legal representation,
make sure you know exactly what you are going to get for your money.
If you cannot afford an attorney, be advised that very few pro bono agencies
are allowed to represent anyone with a criminal conviction. You may have
to represent yourself. Do your homework; know your remedies. If you are asking
for withholding or deferral of removal, you will need to have current reports
on the political conditions in your country.
Having someone with Internet access who can download these reports for you
from the websites of Amnesty
International , Human Rights
Watch , or the
U.S. State
Department will be extremely helpful, However, mailing requests will
work too, if you have enough preparation time.
5 . What happens to all my property when I get transferred
to immigration custody?
In most cases, immigration custody means a county jail that has a contract
with the federal government for housing detainees. Much of the property you
might have been allowed in your prison cell (a TV, for example) will not
be allowed in a county jail. If you can mail your property from prison to
someone you trust, do so. Otherwise it will be stacked in a property room
somewhere. If you do get removed to your home country, you are only allowed
approximately 40 pounds of luggage, and you will have to leave the rest behind.
6 . I have an old deportation order since before I came
to prison. Will I still see a judge?
No. You will not see a judge, unless an event has happened that would allow
you to ask the court to re-open your case. Examples would be:
You found out you were a United States citizen.
You no longer have an aggravated felony.
The political conditions in your home country have changed since your deportation
order and you now would be under serious physical risk should you be returned.
Even if the court agrees to re-open your case, there is no guarantee that
you will win. The court will NOT re-open your case based on a collateral
attack in process upon your conviction.
No. The Supreme Court ruled that aggravated felons are subject to mandatory
detention. If you read otherwise in cases or statutes, you are reading outdated
law.
8 . How long will I be in detention before ICE removes
me?
ICE has a 90-day period in which to remove you. The 90-day period starts
to run on the day your Order of Deportation becomes final, or the day you
are booked into immigration detention after leaving prison if you already
have a final order. (Note: If ICE comes to pick you up from prison several
days after your discharge date, as sometimes happens, those days do not count.)
After 90 days, if ICE has not been able to remove you, your deportation officer
is supposed to do a Post-Order Custody Review. (POCR) This review determines
whether you can be released under an Order of Supervision, or immigration
parole. For those whose country cannot or will not take them back (current
examples are Somalia and Iraq), this review is very important because you
can be released after 90 days.
For this review, you will want ICE to have support letters from family and
friends, saying where you will live and how you will seek employment.
Sample POCR Documents -
(pdf)
You will also want to provide all the certificates you earned in prison,
and, if applicable, your parole papers. And because not everyone will be
personally interviewed by a deportation officer, you should also write your
own letter, stressing that you are not a threat to society and you are not
a flight risk.
Much to the frustration of detainees, POCRs are not always done in a timely
fashion. Sometimes they are not done at all, especially for detainees with
convictions for crimes of violence who are from countries which routinely
take back their nationals but who may be slow doing the necessary paperwork.
After the first 90-day period and POCR, there is another 90-day period to
effect the removal. After six months, however, if there is no possibility
of removal in the 'reasonably foreseeable future,' ICE must, according to
the U.S. Supreme Court, release the detainee under an Order of Supervision
with conditions that it may choose (for example, electronic tether). If ICE
does not do this, as often happens because of case overloads or because the
detainee has an extensive history of violent crime, detainees can file a
Petition for Writ of Habeas Corpus in federal district court.
Click here for a sample habeas . You will
need to find out which federal district to file in, and replace the details
with your own story.
Habeas Corpus petitions almost always gain release for a detainee, either
with an Order of Supervision or with a flight home. Remember that ICE can
condition your release with burdensome requirements, such as reporting in
person every week to a distant office. In addition, although most detainees
on an Order of Supervision are immediately eligible for an Employment
Authorization Card (EAD), you will be denied permission to work if ICE believes
that a travel document is going to be issued in a matter of days or weeks.
If you work without permission, and are caught, ICE can re-detain you.
9 . I am due to be released on parole/supervised release.
How will detention affect this?
If you have any hope of staying in the US, and you know who your agent is,
you should let them know where you are as soon as you get into detention.
You do not want to be put into absconder status. If you do get released on
an Order of Supervision, you will need to contact your parole agent immediately.
The clock starts to run on your parole time when you enter detention. For
example, if you have 2 years of parole, and you spend six months in detention,
you will have 18 months left upon release. Should you be removed, you will
not have to worry about reporting, obviously. (Should, however, you be allowed
to return to the US before your parole time runs, you need to contact your
parole agent immediately)
No, not unless you misbehave on the airplane, but you will be escorted by
two ICE staff. When you get into the airport in your home country, you are
on your own. It's a good idea to ask your family to send money by Western
Union, so you can access local currency right away.
11 . I'm going to come back as soon as I can, even if
it's illegal.
Don't do it! If caught and prosecuted, you could be sent to a federal prison
for up to 20 years, and then get removed again.
12 . Why can't I get a parole if I'm just going to be
deported anyway?
The answer to this question will be different for each state that offers
parole to its prisoners, because each state has different policies. A general
answer, however, is that prisoners who know they will be removed need to
let their Parole Board know this fact. Do not prepare a parole placement
plan that ignores the immigration issue.
13 . Would asking for a commutation of my crime help?
What about a pardon?
Either a commutation or a pardon will indeed help, if you only have one crime
to worry about. If the crime disappears through either of these methods,
and this crime is the sole reason you have received a Final Order of Deportation,
you may be eligible to re-open your case in immigration court. Note: It is
very difficult to get commutations and pardons. Get help, if you think you
have a chance.
14 . Is there any way I can serve my sentence in my
home country?
The International Prisoner Transfer Program began in 1977 when the United
States negotiated the first of a series of treaties to permit the transfer
of prisoners from countries in which they had been convicted of crimes to
their home countries. The program is designed to relieve some of the special
hardships that fall upon offenders incarcerated far from home, and to facilitate
the rehabilitation of these offenders. While all prisoner transfer treaties
are negotiated principally by the United States Department of State, the
program itself is administered by the United States Department of Justice
(DOJ)
The DOJ has an
explanation
of the Transfer Program , including a list of the countries covered by
the treaties. Most, but not all, states have passed legislation implementing
the treaties for their state prisoners. The site also has links to each
state’s legislation, and contact information for each State's
Department of Corrections.
If you are from a country on the treaty list and you are incarcerated in
a state that has passed the proper legislation, ask your Department of
Corrections how you can apply for a transfer.
15 . I am from Somalia (or Cuba, or Iran, or Iraq, etc.).
If I get released on an Order of Supervision, how long do I have to be under
it? Can I get my green card eventually?
An Order of Supervision lasts until your country becomes functional or friendly
enough with the U.S. to accept you back. In some cases, that can be a very,
very long time. It does not lead to a green card.
If you violate your Order of Supervision, you can be re-arrested and re-detained.
As the law stands currently, you will have another POCR at 90-days, and are
eligible for a habeas if you are re-detained past six months. The government
may argue, especially if you have a long rap sheet of violent crimes, that
you are a danger to the community and that you should be detained indefinitely.
16 . I know I need to cooperate with ICE by trying to
get travel documents. How do I do that from inside?
While you are still incarcerated, you can try to find out where your personal
identity documents are......your birth certificate; home country ID; passport,
expired or valid. Once you are in detention, and have already received an
Order of Deportation, get these documents into the hands of immigration.
It is sometimes difficult for detainees to be so helpful in getting themselves
removed, but if you have no way of staying in the US, you need to comply.
In fact, it is a federal crime not to, and the alternative is staying in
detention for an even longer period.
Detention facilities should allow you to phone your embassy or consulate
for free. Families and friends can also help. The website,
www.state.gov/s/cpr/rls , lists all the foreign consular offices in the U.S.
17 . I haven’t been back to my home country in
years and years. I have no friends or relatives left there. If I do get removed,
how can I get help?
Go back to the main web page and click on “Outside the U.S.
Information”, then find your country. We ask that when you do get home,
you keep in contact with FIND to let us know how you are and to give us updated
information on resources in your home country.
18 . How do I complain about the conditions of my
detention?
Here is an extensive answer from Detention Watch Network.
(www.detentionwatchnetwork.org )
You can also find there the American Bar Association detention standards
referred to, plus other useful material.
"While you are being detained by the Immigration and Customs Enforcement
(ICE), it is possible that you may have complaints about access to attorneys
and legal materials, conditions of confinement, or other issues. This document
will give you a very brief description of the ways in which you can voice
your complaints to the proper government offices. First, you must know how
to complain effectively, and then you can begin with the informal or formal
complaint process. Please note that the procedures described below
pertain to the Detention Standards, which are not regulations and are not
enforceable by law. It is important for you to become familiar with
your limited rights under the Detention Standards. However, if the Standards
are not yet in effect at your facility, you should identify and use your
facility’s or private prison’s or state and local
jail’s complaint processes.
1. How to complain effectively: • Provide a title to each complaint or alleged event. (i.e.
“Immigration and Customs Enforcement (ICE) failed to give me adequate
medical care.”) • Provide all relevant details and be
specific :
2. When and where did the event or problem happen? Give
the time, date, and location of the event.
3. Who was involved? Give the names of all actors and witnesses,
and include their Alien numbers (“A numbers”), country
of origin, address, and phone number. Give the names and positions of the
officials involved, and if you do not know them, give physical descriptions
(e.g. height, weight, hair color, clothes, uniform color).
4. What happened? Describe in detail exactly what happened
and the physical and mental impact it had
on you. If you were hurt, did you receive any medical care? What was the
doctor’s diagnosis? --If you have been hurt, ask officials (or contact an attorney) to take pictures
of your injury. • Always make written complaints, keep copies of
everything you send, and write LEGAL MAIL on the
envelope. If you complain to an official orally, follow up by writing them
about the complaint.
2. Informal or Oral Grievance (Complaints): If you have a complaint, you can first try to resolve your problem by speaking
with a staff member. The Officer-in-Charge (OIC) should establish procedures
for you to complain orally, which should be outlined in your detainee handbook
or should be available upon your request. If you choose to complain
orally, you must present your complaint within five days of the
event. If you have trouble speaking English, you can ask for language
assistance and have an interpreter or translator help you. You can end the
informal grievance process at any time and begin with the formal procedures.
3. Formal or Written Grievance: The Officer-in-Charge (OIC) must allow you to submit a formal, written grievance
form to the facility’s grievance committee. You should also send
a copy of your form to the ICE Field Office Director. Attached is a copy
of the Detainee Grievance Form that you can use, but it is possible that
your facility may use its own form, which you will have to request from the
proper official at your facility. Your written complaint must be
filed either within five days of the actual event, or within five days of
the unsuccessful conclusion of an informal grievance. Another detainee
can assist you when you prepare your written complaint.
4. The Decision on Your Grievance: The department head will offer a decision on your grievance. If you do not
accept the decision as a reasonable solution, you must appeal to the Detainee
Grievance Committee (DGC). Within five working days of your appeal, the DGC
will convene to study your complaint. As they review your complaint, you
can appear before the DGC to present your case, answer questions, and respond
to conflicting evidence or testimony. Then, the DGC must provide you with
a written response to the complaint within five working days. If you do not
accept their decision, you may appeal to the Officer-in-Charge (OIC). The
OIC will issue a decision within five working days and explain the reasons
for making the decision. The OIC’s decision is final and cannot
be appealed.
5. Emergency Grievances: An emergency grievance involves an immediate threat to your safety
and welfare. You may present your emergency grievance directly to
the ICE Field Office Director or an equivalent official.
Administrative Complaints The complaint process described on the first page involves filing complaints
with people who are directly involved with the facility (staff, the OIC,
and ICE officials). That process is used to try to correct specific violations
under the Detention Standards. In addition to the first process, there is
also an administrative complaint process that involves filing complaints
with other officials and agencies that are indirectly involved with ICE detention
facilities. This process is used to establish a record of abuses by the agency
that may lead to disciplinary action against an officer or more careful
supervision.
For complaints involving:
1. Misconduct/ abuse by ICE, border patrol (CBP), or a jail official
involving a violation of a constitutional, civil, or statutory right, or
issues of common courtesy, file your complaint with: Department of Homeland Security Attn: Office of Inspector General 245 Murray Drive, SW, Building 410 Washington, DC 20528
2. Misconduct or abuse conducted by ICE employees: use DETAINEE
GRIEVANCE FORM (Form I-847) to file a complaint with the Office of Internal
Audit.
Department of Homeland Security Office of Internal Audit 425 “I” Street, NW Washington, DC 20536
AND you may also file with: Department of Homeland Security Joint Intake Center, ICE/CBP P.O. Box 14475 1200 Pennsylvania Avenue, NW Washington, DC 20044 --Telephone: 202-344-1016 --Fax: 202-344-3390 --Email:
3. Misconduct of Department of Justice attorneys and judges, including ICE trial attorneys and Immigration Judges, file your complaint with: H. Marshall Jarrett, Counsel Office of Professional Responsibility 950 Pennsylvania Avenue, NW Suite 3529 Washington, DC 20530
Discrimination-Based Complaints
There are many federal laws against discrimination, which means treating
someone differently than another because of a certain characteristic. If
you have suffered from discrimination because of your race, color, sex, religion,
national origin, age, or disability, you can send the complaints to the
Department of Homeland Security’s Office of Civil Rights and Civil
Liberties (OCRCL).
Send your complaint even if you are unsure about whether your complaint
qualifies as discrimination; the OCRCL will direct your complaint to the
appropriate office. Please note that detainees with HIV may qualify for various
services.
Mailing Address (U.S. Postal Service): Department of Homeland Security Office for Civil Rights and Civil Liberties 245 Murray Drive, SW Building 410 Washington, DC 20528-0800
For Package/Overnight Delivery Please contact the Office for information on sending a package.
When you write complaints to these agencies, remember the things mentioned
on the first page about complaining effectively, be sure to make copies of
your letters, and label the envelope LEGAL MAIL. Since some of these complaints
may lead to future lawsuits, it is very important to be accurate about the
statements you make (especially about the time, date, exact location, and
the number of officers who were there). Be sure to send complaints as soon
as possible.
Legal Actions Against Federal or State Officials Under Federal Torts
Claims Act/ Bivens Claims*** If your case involves significant injuries, it may be appropriate to file
a lawsuit for money damages. If you have been seriously injured,
you should speak to an attorney before filing a lawsuit.
If you have questions or experience problems related to the ICE detention
standards, please feel free to contact: American Bar Association Commission on Immigration 740 Fifteenth Street, NW, 9th Floor Washington, DC 20005-1022 Telephone: 202-662-1005 Fax: 202-638-3844
PLEASE DO NOT SEND ORIGINAL DOCUMENTS. NO COLLECT CALLS PLEASE.
19 . Where can I get the DETAINEE GRIEVANCE FORM (Form
I-847) mentioned in #17?
F.A.Q.
(pdf)