Detention During Removal Proceedings: What You Need to Know

Immigration detention is one of the most urgent and stressful aspects of the removal process. Every year, thousands of individuals are detained by Immigration and Customs Enforcement (ICE)—often with little warning—while facing deportation. Whether someone is detained at the border or during an interior enforcement action, detention brings immediate consequences for their legal case, their family, and their ability to fight removal. Understanding how detention works, what rights exist, and how to seek release through bond or legal relief is essential for individuals at risk and for the loved ones supporting them.

What is Immigration Detention?

Immigration detention refers to the practice of holding noncitizens in government custody while their immigration status is reviewed or challenged—often as part of removal proceedings. Detention is not the same as serving a criminal sentence; it is a civil process overseen by the Department of Homeland Security (DHS), primarily through Immigration and Customs Enforcement (ICE).

Detention may occur:

• Upon entry to the United States (e.g., at a port of entry or after an asylum claim)
• After an arrest by ICE within the U.S.
• When someone is transferred from a criminal facility due to an ICE hold

While some individuals are released shortly after apprehension, others remain detained for months—or even years—depending on the circumstances of their case.

When does Detention happen during Removal Proceedings?

Immigration detention can occur at several points throughout the removal process, depending on how and when a person comes into contact with immigration enforcement. Timing plays a critical role in the availability of legal options, eligibility for bond, and the overall trajectory of a case.

At the Border:

Individuals encountered by Customs and Border Protection (CBP) at ports of entry or between them may be detained immediately after apprehension. This is especially common for those without valid entry documents or who request asylum.

During Interior Enforcement:

U.S. Immigration and Customs Enforcement (ICE) may detain individuals already living in the U.S. if they are flagged during routine traffic stops, workplace raids, check-ins, or due to prior immigration or criminal records.

Following a Court Hearing or Missed Appearance:

Detention can occur after an immigration court hearing—particularly if a judge orders removal—or if a person misses a scheduled appearance and ICE locates them afterward.

After Receiving a Removal Order:

If an individual has been ordered removed and fails to depart the U.S. within the required time, ICE may detain them to facilitate deportation.

Without Notice or Advance Warning:

In many cases, detention is unannounced. ICE may arrest individuals at their homes, workplaces, or even at courthouses. The lack of notice often leaves families scrambling for answers and legal assistance.

For families and advocates, understanding when detention happens is key to acting quickly. Early intervention—before a removal order or detention occurs—can significantly improve a person’s chances of being released or avoiding detention altogether.

Mandatory vs. Discretionary Detention

Not all immigration detention is the same. U.S. law draws a sharp distinction between mandatory detention, where release is not permitted, and discretionary detention, where release on bond or supervision is possible. Understanding the difference is crucial when evaluating legal options and next steps.

Mandatory Detention: No Release Allowed by Law

Certain individuals must be detained under federal law, regardless of personal circumstances or humanitarian concerns. This often applies to people with:

• Specific criminal convictions, especially those classified as aggravated felonies or crimes involving moral turpitude
• Multiple criminal offenses or prior immigration violations
• Individuals detained at the border seeking asylum without proper documents (subject to expedited removal)

In these cases, immigration judges do not have the authority to grant bond—even if the person poses no flight risk or danger.

Discretionary Detention: Bond may be an Option

For others, detention is discretionary. This means that ICE or an immigration judge may choose to release the individual on bond or under supervision, depending on several factors, such as:

• Risk of flight: Will the individual attend court hearings if released?
• Danger to the community: Does the person have a criminal history or pose a public safety risk?
• Immigration history: Have they complied with past immigration requirements?
• Ties to the community: Family, employment, and long-term residence in the U.S.

In discretionary detention cases, legal advocacy becomes especially critical. A strong legal argument—supported by documentation and personal testimony—can help secure release and ensure the individual remains with their family during proceedings.

Legal Rights of Individuals in Detention

Immigration detention does not strip individuals of their fundamental rights. While immigration proceedings are civil—not criminal—in nature, detainees are still entitled to due process and basic protections. Knowing these rights is essential for detainees and their families navigating a high-stress and time-sensitive situation.

Right to Legal Representation (But Not at Government Expense)

• Every person in immigration detention has the right to be represented by an attorney.
• However, unlike in criminal court, the government does not provide a public defender.
• Detainees must find and retain legal counsel privately or through nonprofit legal aid organizations.
• Legal representation dramatically improves outcomes, including the chances of release or relief from removal. Contact us today!

Right to a Bond Hearing in Most Cases

• Those not subject to mandatory detention may request a bond hearing before an immigration judge.
• At this hearing, the detainee must prove they are not a flight risk or a danger to the community.
• In some cases, ICE may grant bond without the need for a hearing, but this is increasingly rare.

Due Process and the Right to Be Heard

• Detainees have the right to be notified of the charges against them and to respond in court.
• They also have the right to present evidence, call witnesses, and appeal unfavorable decisions.
• Unlawful or prolonged detention can sometimes be challenged through habeas corpus petitions in federal court.

Medical Care, Visitation, and Communication

• Detention facilities must provide basic medical care, though access can be inconsistent.
• Detainees have the right to receive visits from family and attorneys, subject to facility rules.
• Phone calls and other communication may be monitored, and some facilities restrict contact depending on classification level.

Understanding the Bond Hearing Process

For individuals not subject to mandatory detention, a bond hearing can be a critical opportunity to seek release from ICE custody while removal proceedings continue. However, the process is complex and success depends on eligibility, preparation, and timely legal support.

What is an Immigration Bond Hearing?

• A bond hearing is a legal proceeding before an immigration judge where a detainee requests release from detention.
• The judge decides whether the person can be released and, if so, sets the bond amount — a financial guarantee that the individual will appear at all future hearings.

Who is Eligible for Bond?

Not everyone in detention qualifies for a bond hearing. Ineligibility is often based on:

• Criminal history (certain convictions trigger mandatory detention)
• Repeat immigration violations
• Perceived flight risk or public safety concerns

Eligibility is typically determined during an initial screening or by ICE, but a formal request to the court may still be required to secure a hearing.

What does the Judge consider when Setting Bond?

Immigration judges assess several factors:

• Ties to the community (family, employment, length of time in the U.S.)
• Criminal history and rehabilitation
• Immigration history (prior orders or visa overstays)
• Likelihood of obtaining relief from removal

Bond amounts vary widely but often range from $1,500 to over $25,000, depending on risk factors.

How to Request a Bond Hearing

• A motion for a bond hearing can be filed with the immigration court (EOIR).
• The detainee or their attorney can make this request at any stage of detention — ideally as early as possible.
• Preparing evidence in support of release (e.g., affidavits, letters from employers or family) can significantly strengthen the case.

What happens after Bond is Granted?

• Once bond is paid (by family, friends, or a bond agency), the individual is released from custody but must continue attending all hearings.
• If the bond conditions are violated, the bond may be revoked and forfeited, and the individual could face re-detention.

Types of Detention Facilities

Immigrants held during removal proceedings may be detained in a wide variety of facilities, each with differing levels of oversight, resources, and legal access. Understanding the type of facility is crucial for families trying to stay in contact and arrange legal help.

1. ICE-Operated Detention Centers

• These are dedicated immigration detention facilities managed directly by U.S. Immigration and Customs Enforcement (ICE).
• Often designed to hold individuals long-term while their immigration case proceeds.
• Conditions vary, but access to legal counsel, phones, and visitation may be more structured than in local jails.

2. Contract Detention Facilities (Private Operators)

• Managed by private prison companies under contract with ICE, such as CoreCivic or GEO Group.
• These facilities may prioritize cost efficiency over detainee welfare, leading to inconsistent medical care, food quality, and legal access.
• Reports of rights violations have been more frequent at some of these facilities.

3. Local and County Jails

• ICE also places individuals in county or municipal jails under “intergovernmental service agreements.”
• These are not immigration-specific facilities and often lack dedicated resources for immigration detainees.
• Legal access, language assistance, and communication with families may be more limited.

4. Short-Term Holding Facilities (STHF)

• Primarily used for initial intake or short-term processing (less than 72 hours), especially at the border.
• Conditions can be harsh — detainees may be kept in overcrowded cells with minimal resources, often referred to as hieleras (cold rooms).

Understanding where a loved one is detained can influence everything — from eligibility for bond, to how easily an attorney can help, to what rights can be enforced.

How Long can Someone be Detained?

There is no fixed time limit for how long someone can be held in immigration detention during removal proceedings. The duration varies based on legal circumstances, case complexity, and government backlogs — sometimes stretching into weeks, months, or even years.

1. Detention Before a Bond Hearing

• Many individuals remain detained while awaiting their initial bond hearing, which can take several days to several weeks depending on the facility’s location and docket backlog.
• In some cases, individuals are denied bond eligibility altogether and must remain detained until the outcome of their case.

2. Detention During the Entire Removal Process

• Those in mandatory detention often remain in custody throughout their removal proceedings — including hearings, appeals, and any post-order motions.
• Individuals appealing a denial of relief may experience prolonged detention while the Board of Immigration Appeals (BIA) or federal court reviews the case.

3. Prolonged Detention and Due Process

• The U.S. Supreme Court has held that prolonged immigration detention without a bond hearing can raise constitutional concerns.
• Individuals held six months or longer may file a habeas corpus petition in federal court to challenge the legality of their continued detention.
• Courts may evaluate whether the detention is unreasonably prolonged or if the government has shown sufficient justification.

4. In Absentia Removal and Detention

• In some cases, individuals detained long-term may miss scheduled hearings due to facility errors, transfers, or communication breakdowns.
• If this occurs, they may be ordered removed in absentia (in their absence), even though they were in government custody.

Key Factors That Affect Length of Detention

• Eligibility for bond or parole
• Type of facility and docket speed
• Filing of appeals or motions
• Transfer between facilities
• Court scheduling or administrative delays

For families and advocates, prolonged detention can be emotionally and financially devastating — especially when individuals remain held despite having strong legal claims or pathways to lawful status.

Alternatives to Detention

In many cases, individuals facing removal proceedings do not need to remain behind bars. U.S. Immigration and Customs Enforcement (ICE) may choose to release individuals through a range of Alternatives to Detention (ATD) — programs designed to ensure compliance with court proceedings without requiring incarceration.

1. Parole and Conditional Release

• ICE may grant parole to individuals who pose no flight risk or danger to the community.
• Parole is discretionary and typically used in humanitarian cases, such as those involving survivors of abuse, medical conditions, or vulnerable family situations.
• Conditions of release may include regular check-ins, maintaining a valid address, or travel restrictions.

2. Orders of Supervision (OSUP)

• A common alternative to detention, Orders of Supervision require individuals to report periodically to ICE or an immigration officer.
• May include additional conditions such as wearing an ankle monitor or complying with curfews.
• OSUP is often used when someone cannot be removed in the near future or is pursuing legal relief.

3. Electronic Monitoring and ISAP

• ISAP (Intensive Supervision Appearance Program) is ICE’s flagship alternative program.
• Participants may be required to:
  • Wear GPS ankle bracelets
  • Check in via voice recognition phone calls
  • Attend home visits or in-person appointments
• The program is managed by a private contractor (BI Inc.) and includes case management services.

4. Who May Qualify for Alternatives

• Individuals not subject to mandatory detention
• Those with strong community ties, family support, or evidence of compliance
• People with pending asylum, VAWA, or other humanitarian-based applications
• Parents or caregivers of minor children in the U.S.

5. Benefits and Limitations of ATD Programs

Benefits:

• Maintain family unity
• Access legal services more easily
• Preserve employment and housing

Limitations:

• Still under ICE monitoring and control
• May involve intrusive surveillance
• Not a guarantee of relief from removal

Alternatives to Detention offer a critical lifeline for individuals to remain in the community while fighting their case. However, eligibility varies, and legal guidance is essential to present a strong case for release.

What Happens if a Person is Released on Bond?

Being released on bond from immigration detention provides temporary freedom, but it does not end removal proceedings. The individual is still required to appear at all scheduled hearings and comply with immigration court orders. Failing to meet these obligations can have serious consequences.

1. Release Does Not Stop the Case

• Bond release allows a person to live outside of detention while their case continues.
• Removal proceedings remain active, and the individual must still seek legal relief (e.g., asylum, adjustment of status, cancellation of removal).

2. Mandatory Court Appearances

• After release, the individual will receive notices to appear (NTAs) for upcoming court dates.
• Missing a hearing, even unintentionally, can result in an in absentia removal order—meaning the person is ordered deported for failing to appear.

3. Reporting Obligations to ICE

• Many released individuals are placed under supervision by ICE, which may include:
  • Periodic in-person or telephonic check-ins
  • Home visits
  • Travel restrictions or GPS monitoring
• Conditions vary by case, location, and perceived risk.

4. Paying and Managing the Bond

• Bond can be paid by:
  • The individual’s family or friends (as cash at ICE-designated locations)
  • A licensed immigration bond agent
• If the individual attends all hearings, the bond is refunded at the end of the case (minus fees, if posted via a bond agent).
• If the individual fails to appear, the bond is forfeited and may trigger re-detention or enforcement.

5. Legal Support During Release

• It’s essential to continue working with an attorney after bond release.
• This period is an opportunity to gather evidence, build a defense, and apply for relief before the next hearing.

Bond release provides physical freedom—but not legal certainty. Remaining engaged, informed, and represented is the best way to protect the right to remain in the U.S.

Legal Support and Why it Matters

Legal representation is often the difference between prolonged detention and freedom—or even between deportation and the ability to remain in the United States. For individuals in immigration detention, the stakes are high and the process is complex. Quality legal support can be life-changing.

1. No Guaranteed Right to a Free Lawyer

• Immigration proceedings are civil, not criminal. This means there is no right to a government-appointed attorney.
• Detainees must find and retain legal counsel on their own or through nonprofit organizations.
• Without representation, individuals are significantly more likely to lose their cases.

2. Attorneys can Pursue Multiple Avenues of Relief

• A skilled immigration attorney can:
  • Challenge the basis for detention or removal
  • File motions to reopen or terminate proceedings
  • Request bond hearings or seek lower bond amounts
  • Pursue relief such as asylum, cancellation of removal, or adjustment of status
• Legal professionals can also assist families in navigating ICE procedures and paying bonds.

3. Strong Representation Can Reduce Time in Detention

• Studies consistently show that represented individuals are more likely to be released on bond or win their cases.
• Attorneys help ensure that detainees:
  • Meet critical filing deadlines
  • Avoid in absentia removal orders
  • Receive fair hearings with proper evidence submitted

4. Advocacy and Oversight

• Legal support also means someone is advocating for humane treatment, access to medical care, and fair conditions inside detention facilities.
• Lawyers can file complaints or motions related to violations of detainees’ rights.

5. Support for Families and Loved Ones

• Attorneys often serve as a bridge between detainees and their families, helping keep everyone informed and involved.
• Legal teams provide clarity during a confusing and emotionally charged process.

How Benach Pitney Reilly Immigration Helps

Navigating detention during removal proceedings requires both urgency and experience. Benach Pitney Reilly Immigration brings a deep understanding of the immigration detention system and a strong track record of helping individuals regain their freedom and protect their future.

Tailored Strategies for Bond Hearings and Release

• Our attorneys develop personalized legal arguments to demonstrate eligibility for bond and argue for the lowest possible amount.
• We assist with filing motions, gathering evidence, and preparing detainees for their hearings to increase the chances of release.

Challenging Unlawful Detention

• When detention is not legally justified, we challenge the government’s authority through motions to terminate, reopen, or habeas corpus filings in federal court.
• We pursue remedies for prolonged or due process–violating detentions.

Advocacy that Prioritizes Family Reunification

• We work with families to coordinate bond payments, understand ICE reporting requirements, and ensure ongoing compliance post-release.
• Our goal is to keep families together, minimize time spent apart, and protect long-term immigration options.

Expertise in Complex and High-Stakes Cases

• Whether dealing with mandatory detention, prior removal orders, or criminal histories, our team has handled some of the most difficult detention cases.
• We also support clients in seeking relief from removal, including asylum, cancellation, and other humanitarian protections.

Bilingual and Culturally Competent Representation

• Our team understands the emotional toll detention takes and communicates with clients and their loved ones in clear, compassionate terms.
• We serve a diverse client base and offer language access, community support, and trusted legal advice.

Protecting the Right to Freedom and Family Unity

Detention does not mean the end of hope. Every day, individuals regain their freedom, reconnect with their families, and continue to fight for the right to remain in the United States. But doing so often requires fast action, strong legal support, and a clear understanding of available options.

🔁 Detention is Not the Final Word

• Being detained is often just the beginning of the removal process—not the end.
• Many people are released on bond or qualify for relief from removal, including asylum, cancellation of removal, or VAWA protections.

⏱️ Taking Early Action can Make a Difference

• The earlier legal help is secured, the more options remain available.
• Delays can lead to missed hearings, prolonged detention, or preventable deportation orders.

👪 Families Play a Critical Role

• Loved ones can help by seeking legal counsel, gathering documents for bond hearings, and staying informed about the case timeline.
• Emotional support and advocacy from the outside can be just as important as legal advocacy inside.

⚖️ Benach Pitney Reilly Immigration is Here to Help

• Whether someone is already detained or facing possible detention, our team provides strategic guidance at every stage.
• We help families understand what to expect, prepare for bond hearings, and explore every possible form of relief.