Detention During the Removal Procedure
Generally, an alien may not be removed until released from imprisonment under his or her criminal sentence. An alien has no right to be removed before completing the criminal sentence. However, some nonviolent offenders may be removed if removal is in the best interest of the United States. Parole or supervised release is not a reason to defer removal.
During the removal process, the government has the authority to hold an alien in custody, but an alien has the right to challenge his or her custody status in a habeas corpus proceeding. Most aliens who have been convicted of crimes are subject to mandatory custody and cannot be released during removal proceedings absent specific circumstances involving law-enforcement objectives.
The Attorney General may release an alien from custody if that release is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.
An alien who is eligible for bond may obtain a bond of not less than $1,500 if he or she does not present a risk of flight or a danger to the community. Ordinarily, custody and bond determinations made by the Department of Homeland Security (DHS) are reviewable by an immigration judge (IJ). However, an IJ has no jurisdiction to review the custody status of an arriving alien. An arriving alien is defined as "an applicant for admission coming to or attempting to come to the United States."
The Secretary of Homeland Security has wide discretion to determine the place of confinement of aliens who are placed in custody and to regulate the conditions of such confinement. However, the exercise of this authority cannot impair the alien's right of representation by counsel, since aliens in removal proceedings can be represented by counsel at no cost to the United States. Detention and conditions of release are subject to limited review by an IJ or by a district court upon a petition for a writ of habeas corpus.
The government has the authority to hold an alien without bond if he or she poses either a poor bail or national security risk.
Executing the Order of Removal from the United States
The alien is generally removed to the country that he or she designated at the removal hearing, which is usually the country of the alien's citizenship. If the designated country refuses to accept the alien, the court can designate another country, such as the country of birth or the country of last residence. Although any given country of removability cannot be compelled to accept a deported alien, it is customary for most countries to accept their nationals. The designated country is made aware of the pending removal.
The Detention and Removal Office (DRO) of the Immigration and Customs Enforcement (ICE) bureau determines whether the country designated will receive the deportee by assisting or requiring the alien to apply for a passport or other travel document. When DRO is notified that the designated country will accept the alien, the government purchases any necessary tickets. If the alien is not in custody, a notice is issued, ordering the alien to appear. When removal is by airplane, notice is given to the airline together with information concerning the alien and the destination. The person is then accompanied by an ICE escort to the final country of removal. Once an alien has been removed, he or she is inadmissible to the United States for a period specified in INA, unless special permission has been granted.
Post-Removal-Order Custody
INA requires the government to remove an alien within 90 days of a final removal order or when the alien is released from criminal custody, whichever is later. With certain exceptions, detention is mandatory during the removal period. During the 90-day removal period, ICE seeks the appropriate travel document from the destination country through its consulate in the United States.
An alien not removed within the 90-day removal period is subject to release on an order of supervision, with enumerated restrictions. However, no alien ordered removed may receive employment authorization unless the Attorney General makes a specific finding that the alien cannot be removed due to refusal of countries to accept the alien or that removal is otherwise impractical or against the public interest.
If after six months of continued detention following a final administrative order of removal the detainee still cannot be removed, DHS is bound to release the individual unless he or she presents national security concerns or other danger, or is likely to be removed soon.
Expenses of Removal
Generally, the expense of removal is borne by the United States government. This includes the cost of transporting the deportee to the port of removal as well as the cost of travel to the designated country of removal.