How Long Can ICE Hold Someone in Detention Before Deportation?

Breaking certain immigration rules, like overstaying a visa or otherwise being undocumented, isn’t a crime in the United States. It’s a civil immigration violation for which someone may be detained by U.S. Immigration and Customs Enforcement (ICE).

ICE detention is meant to ensure that people show up for immigration court or prepare for deportation, rather than to punish them. Still, depending on current federal immigration policy and detention center restrictions, it can be scary. While it may seem like there’s no end to the detention period, ICE cannot hold a detainee indefinitely.

If ICE has detained you or a loved one, this can be an unsettling time. You’ll want to know your legal rights and protections. Consider enlisting a qualified immigration attorney to help you navigate the intricacies of U.S. immigration law. They can sort through detention and deportation challenges you might bring, as well as your options for release. That way, you’re making informed decisions.

This article reviews key information about ICE detention limits and important considerations to keep in mind. We’ll also answer some common questions you might have as you move forward.

What Is ICE Detention?

ICE detention is the practice of holding a non-citizen in custody while their immigration case is being processed. We refer to people in ICE custody as “detainees.” ICE, which is a part of the U.S. Department of Homeland Security (DHS), runs the detention facilities.

Non-citizens in ICE detention are typically:

• Awaiting immigration hearings or deportation
• Suspected of violating immigration laws
• Considered a flight risk (likely to flee the area) or public safety concern

U.S. citizens are not subject to immigration detention.

Immigration detention is different from being in a regular jail for a crime, although sometimes people can be transferred to ICE after release from criminal custody. This is usually the result of something called an ICE detainer.

ICE Detainers

An ICE detainer, sometimes called an ICE hold, is a request from ICE to a local law enforcement agency, like a county jail. It can also be sent to a federal or state law enforcement agency. The request pertains to someone the law enforcement agency has in custody for an alleged criminal offense.

An ICE detainer asks the agency to:

• Notify ICE before releasing an individual whom ICE suspects of being removable under immigration law
• Hold the individual for up to 48 hours beyond their scheduled release time so ICE can assume custody and transfer them to a detention facility

Law enforcement agencies don’t have to comply with ICE detainers.

Administrative Warrants

An administrative warrant issued by an ICE officer usually accompanies an ICE detainer. These warrants can only be used for civil immigration violations, like unlawful presence. They cannot be used for alleged crimes, like human smuggling.

These are distinct from judicial warrants. Administrative warrants authorize ICE arrests in public spaces like sidewalks, parking lots, or building lobbies.

Administrative warrants don’t allow entry into private homes or private property. That requires a judicial warrant issued by a judge.

ICE Arrests

Another way someone might find themselves in ICE detention is through an ICE arrest.

ICE agents are federal law enforcement officers with the authority to arrest individuals for suspected civil and criminal violations of immigration law.

As with detainers, administrative warrants are regularly used when ICE agents arrest someone for a civil violation of immigration law, like overstaying their visa. While ICE agents can arrest someone for an immigration law crime, they typically need a judicial warrant to do so.

How Long Can ICE Hold Someone in Detention?

Once ICE has custody of someone, detention can last weeks or months, depending on the situation. An important factor is what stage, if any, the detainee is in their deportation proceedings. We review the possibilities below:

No Removal or Deportation Order

If a detainee isn’t in removal proceedings or if an immigration judge hasn’t issued a removal or deportation order, ICE may still detain them while investigating their immigration status or preparing charges.

While there’s no fixed time limit for holding someone under these circumstances, their detention must be reasonable.

During Removal or Deportation Proceedings

In some cases, the detainee is in active removal proceedings, but there’s no final order of removal or deportation. In these cases, ICE can detain the person throughout the proceedings, which may last months or even years.

Courts generally allow longer detention in these cases because the government is actively pursuing removal.

After a Final Removal or Deportation Order

Once a judge issues a final removal order, however, ICE enters a 90-day removal period during which they’re expected to deport the person. During this time, ICE works to get the necessary travel documents from the person’s home country to facilitate their return.

Within this period, ICE must conduct a custody review and decide whether to release or continue detention. Unless a detainee is subject to mandatory detention, they may pursue several options for release at any stage of their immigration proceedings.

Mandatory Detention

Mandatory detention requires ICE to detain certain categories of noncitizens. It applies to those who crossed the border without inspection, sometimes called arriving aliens. It also applies to detainees with certain criminal convictions, like aggravated felonies and certain drug offenses. Additionally, noncitizens suspected of terrorism or posing a threat to national security are subject to mandatory detention.

Detainees subject to mandatory detention are generally ineligible for bond and most other forms of release while their immigration case is pending.

Forms of Release

Under certain circumstances, detainees may be released while their case is pending or removal isn’t feasible. Release doesn’t stop deportation. It just delays detention. An immigration attorney can be critical to securing a detainee’s release.

We review some main forms of release from immigration detention below.

Bond

Bond is similar to bail. It’s a financial guarantee you’ll attend future court hearings. An immigration judge or ICE can grant bond if you can show you’re not a flight risk or danger to the community.

Parole

ICE has the discretion to temporarily release a detainee on parole for humanitarian or public interest reasons. Parole is a form of supervised release. common for arriving aliens who pass a credible fear interview conducted by U.S. Citizenship and Immigration Services (USCIS).

Order of Supervision (OSUP)

Sometimes, deportation under a final removal order isn’t possible within the removal period. In such cases, ICE may issue an OSUP. This form of supervised release typically includes conditions like GPS monitoring, check-ins, or travel restrictions.

Own Recognizance (OR)

In some cases, ICE or an immigration judge may release a detainee based on their promise to appear in court. This type of supervised release is called release on one’s own recognizance. It’s often used for first-time or low-risk detainees.

Alternatives to Detention

ICE may also offer alternatives to physical detention that allow monitoring, often with technology. ICE uses risk assessments to assign these on a case-by-case basis. They might include facial recognition apps, voiceprint check-ins, and unannounced home visits.

Regardless of the form, ICE and immigration judges typically won’t grant temporary release if the detainee is:

• A flight risk
• A danger to the community
• Subject to mandatory detention

Under extraordinary humanitarian/public interest circumstances, however, ICE may grant parole for a detainee subject to mandatory detention.

Extended Detention

When a non-citizen remains in custody beyond the standard or expected timeframe, this is called extended detention. It often occurs when a detainee is, for instance, a flight risk or public safety threat. We discuss other common reasons for extended detention below.

Criminal Records

ICE is more likely to try to keep a detainee with a criminal history detained even after an immigration judge grants release. In these cases, ICE might choose to appeal the decision to the Board of Immigration Appeals (BIA). Regardless of the outcome, this can extend the detention.

Travel Documents

Another common reason for extended detention is when ICE is having difficulty obtaining travel documents from the person’s country of origin.

Some countries issue these documents slowly or require inaccessible documentation, like a birth certificate. Others might refuse to take back their citizens. If ICE cannot get a travel document, it cannot physically deport the person, which can lead to prolonged detention.

Legal Proceedings

Sometimes, people try to fight their deportation through appeals to the BIA or federal courts. Depending on the particular challenge, this can take a long time. Detainees typically remain in ICE custody throughout the appeals.

What Are Your Rights During ICE Detention?

ICE detainees have several important rights under federal law. Eligibility may depend on legal status. For example, detained lawful permanent residents (also known as green card holders) may be able to seek forms of relief that other detainees may not.

We review some of the basic rights detainees have below.

Right to Due Process

Detainees must be given notice of their charges, an opportunity to be heard, and access to legal proceedings. This includes:

• Right to detention of reasonable duration: ICE may not detain you indefinitely without a realistic prospect of removal.
• Right to challenge detention: Detainees can ask an immigration judge to review their detention and to contest prolonged or unlawful detention, including conditions of confinement.
• Right to apply for relief from removal: Detainees may seek asylum, withholding of removal, certain waivers, cancellation of removal, and other forms of relief.
• Right to a bond hearing: Under federal law, eligible detainees may request a bond hearing before an immigration judge.

If you plan to assert any of these rights, you may find it comforting to learn you also have a right to counsel.

Right to Legal Access and Representation

Detainees may retain an attorney at their own expense and receive legal visits. Federal law also entitles detainees to be informed about their case and have access to legal resources. Additionally, they have the right to attend group sessions explaining immigration procedures and rights.

Right to Communication

Detainees generally have the right to communicate with family members and their attorneys. Federal law requires interpretation and translation services for detainees with limited English proficiency.

How To Find Trustworthy Legal Help

Depending on federal policy, enforcement of your rights can be subject to legal uncertainty and systemic barriers. This may be overwhelming and discouraging. An attorney who specializes in immigration law can help secure the best possible outcome for your family.

Finding a trusted lawyer to protect your interests, however, often brings its own challenges. But it doesn’t have to. FindLaw’s directory of immigration attorneys can help eliminate unnecessary difficulties. You can access ratings and background information for experts in your area by clicking on your state, then city.

Mitigate the unknowns and engage a skilled advocate to guide you through this journey.