My friend was picked up by the immigration officer, what is going to happen to her?

UPDATE: Many people appear to have misinterpreted the so called “Morton Memo” on Exercising Prosecutorial Discretion (and an August 18, 2011 announcement) to mean that there will be no more deportations (removal cases). This is not true! Both removal proceedings and removals will continue, however, ICE attorneys and officers are supposed to review all cases in light of DHS’s “new” enforcement priorities.

However, if your case is “low priority” you now have a better chance of being considered for an exercise of prosecutorial discretion that can lead to getting your case administratively closed.

It is  important to understand that there is no amnesty, and cases of individuals with criminal convictions will most likely not be considered to be “low priority.” Moreover, people should not just turn themselves in to immigration authorities expecting  a positive result. Immigration authorities are only promising to start reviewing cases more carefully, not stopping removals altogether. So, the original answer below,  is still quite accurate.

In answering your question, I am assuming that your friend was picked up by the ICE* agent (Immigration and Customs Enforcement). As such, she will most likely be taken to the local ICE office for fingerprinting to check her criminal and immigration background. Depending on whether your friend has any past criminal history or other immigration issues, a decision will be made whether to hold her pending a court hearing, or whether to release her. An electronic monitoring device could be placed on her. There also may be a bond imposed, which usually must be paid in full to secure the release. (ICE is more likely to hold a person without bond if they believe the person has been deceitful or evasive in the face of simple questioning.)

If your friend is placed into immigration custody, before the actual deportation/removal proceedings start, she will likely be transferred to an immigration detention center.  If you are trying to locate her, you can use a detainee locator tool on the ICE website ( If your friend was officially booked, this tool will allow you to find out where she is being held. You can also call your local Immigration and Customs Enforcement office.

Most detainees are entitled to receive visitors at all ICE facilities. If you decide to visit the detention center or you want to bring something to your friend, call ahead to see if there are any visiting restrictions or what kind of items you can bring. Usually food and even some books are not allowed.

Note, that your friend may end up in a facility in a different state, far from the family and friends. Also, as an “alien” your friend does not have the same constitutional protection as a U.S. citizen, so arguing that her rights are being violated by transferring her from New York to Texas is not going to work. However, your friend has rights to privacy and counsel. ICE must also inform her relatives as soon as possible, so that they may make arrangements for visitation or hire legal representation for her before any court dates.

When ICE processes an individual for removal proceedings (formerly known as deportation), they must issue a Form I-862, Notice to Appear (NTA) in removal proceedings. The Notice will generally list the allegations on which any charge that the individual is subject to removal is based, list a date for an initial hearing and inform the person of their rights to competent translation, attorney representation and fundamental fairness in the proceedings.

Your friend should seriously consider hiring an immigration attorney to represent her. At a hearing, the government will be represented by an attorney who has probably appeared in hundreds of hearings.  Your friend may be a smart girl, but she does not know immigration law, and she does not have the needed experience. If she appears “pro se” (on her own behalf), she will be at a distinct disadvantage!

Some people, who try to save money, attempt to represent themselves – thinking that if they lose then they can hire an attorney to file an appeal. Most of these people do lose, and when they hire an attorney, they end up spending more money as now the attorney has a much more difficult job. When someone appears before the immigration judge, a record is created. That record of proceedings consists of the transcript of the hearing and the exhibits, including copies of any applications submitted on detainee’s behalf. The Board of Immigration Appeals (BIA) only sees the printed record, the decision of the Immigration Judge and the attorneys’ legal briefs. BIA will not hear any new testimony, so your friend will not have a chance to tell her story again! Even if the case ends up in the Federal Court, the court again will rely solely on the record of proceedings.

Your friend is not entitled to court-appointed counsel, but she will be given a list of local legal services providers at her first court hearing. An attorney can give your friend advice and determine the best course of action. There may be relief available to your friend, depending on her immigration and criminal history, ability to demonstrate a good moral character, and whether she has any qualifying US citizen relatives. This is a discretionary form of relief, and something she should not pursue on her own.

Tell your friend not to panic as panic causes people to make errors in judgment, such as giving ICE false information. Your friend should know that overstaying one’s visa is not a crime, and that removal proceedings are civil proceedings. If she is charged with immigration violation, the worst possible penalty for this is being sent back to her home country, assuming she is not eligible for relief from removal and all appeals have been exhausted.

*ICE (Immigration and Customs Enforcement) is the principal investigative arm of the U.S. Department of Homeland Security (DHS). Its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Simply put, ICE goes after illegal immigrants in US territory, employers who hire illegal immigrants, and those trying to smuggle goods or contraband into the country.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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