As part of the process of deporting illegal aliens from the U.S., the government has the right to hold an alien in custody during the removal process. This article explains the circumstances under which aliens may be released from custody.

During the Removal Proceedings

The U.S. Supreme Court has ruled that the government can hold an alien in custody during the removal proceedings. But if the alien is unlikely to flee and isn't a danger to the community, then the alien can be released on bond of at least $1,500 while removal proceedings are under way.

If an alien has been convicted of a crime, the alien may be subject to mandatory custody. In addition, an alien can be held without bond if the government believes that the alien poses a national security risk or might flee.

"National security" can apply to a number of circumstances. If an alien is suspected of potential terrorism, this would be an obvious national security risk. But aliens have also been detained for other reasons in the name of national security. For example, there have been previous instances where groups of aliens have attempted to enter the country by sea (often from Cuba or Haiti). The government can hold them without bond on the assumption that releasing them would encourage more mass migrations, which could be a threat to national security.

Immigration judges are responsible for reviewing custody and bond issues if there is disagreement over whether an alien may be released or how much bond should be required.

Custody after the Removal Order

After a final removal order has been issued, aliens must leave the country within 90 days, or, if the alien is in criminal custody, the alien is removed after being released from custody.

During the 90-day period, the alien will be held in custody while the U.S. government gets travel documents from the alien's native country. If the government can't arrange for the travel documents within the 90-day period, then the alien can request that he or she be released from custody while the government seeks to finalize travel arrangements. Before being released, the alien must prove:

  • He's not dangerous
  • He's unlikely to flee
  • He's cooperated with the government in its attempts to secure travel documents

If the alien is still in government custody after 6 months, the government is required to release him unless he's a national security risk or other danger or likely to be removed soon.

Rights of Aliens in Custody

While in custody, aliens have the right to have visits from family and attorneys. In addition, the alien can be in contact with diplomats from his native country.

Questions for Your Attorney

If you've been detained during immigration removal proceedings, your immigration attorney may be able to help win your release.

Among the questions to consider asking your attorney:

  • Have you represented clients in immigration-related custody and bond issues?
  • What are my chances of getting released from custody during the removal process?
  • What can I do to prove that I'm not a flight risk, a national-security risk or a danger to my community if I'm released?
  • How much do you charge for your services?