U.S. Deportation Procedures: Arrest, Detainment, and Voluntary Departure

In 2015, it was estimated that there were 11 million undocumented immigrants living in the U.S. Although the exact number of undocumented people is hard to measure, the amount of people being deported every year isn’t. During the 2017 fiscal year, 61,094 immigrants were deported from the U.S. back to their countries of origin. Living in this country as an undocumented individual comes with a lot of uncertainty due to the risk of deportation.

Deportation is the formal removal of a foreign individual from the U.S. for violating an immigration or criminal law. Deportations can happen anywhere, anytime, but there is a process that must be followed to lawfully remove someone from the country. Undocumented individuals receive notice and undergo a series of hearings to determine whether they will be removed from the country or whether they have a right to remain. The process affords undocumented people the right to counsel and the right to appeal decisions along the way before they are subject to removal. It is important to understand how this process begins, and what options may be available, before facing a hearing and forcible deportation:
Arrest – Undocumented individuals can be arrested by local law enforcement (such as police officers) or federal law enforcement (Border Patrol agents or ICE agents). If an undocumented person is arrested by a local police officer, ICE can ask the officer to hold the person for up to 48 hours before stepping in and taking custody; local law enforcement is not required to comply. Individuals detained by Border Patrol are turned over to ICE. Border Patrol agents make arrests at borders or airports while ICE can make arrests at an individual’s home, workplace, or other location. While ICE maintains a policy against making arrests at “sensitive locations” (including schools, hospitals, and houses of worship), this policy is strictly voluntary. In fiscal year 2017, arrests were up by 42 percent from the previous year.

Detainment – If ICE decides to deport an individual, that individual is held in an immigration detention center or contracted prison. At this point, ICE evaluates whether the detainee poses a safety and security risk and whether the detainee should be granted bond or released on their own recognizance.

Voluntary Departure – Some individuals targeted for removal volunteer to leave the U.S. on their own terms rather than be deported. This choice allows some undocumented persons to reenter the U.S. later, if they have the legal means to do so and if they otherwise qualify for this option. Undocumented people who opt for voluntary departure do not have orders of removal entered against them and may apply for waivers from automatic time bars to re-entering the U.S.

Another advantage of voluntary departure is that, if it is requested before the end of immigration hearings, it affords the individual up to 120 days to wrap up any outstanding business in the U.S. If requested at the end of immigration proceedings, voluntary departure still allows the individual up to 60 days before being deported. (If an order of removal is entered at the end of immigration proceedings, its subject must be deported within 30 days, which provides little time to make arrangements for property or say goodbye to friends and family.) Individuals who want to be considered for voluntary departure must:

• have been physically present in the U.S. for at least one year before receiving a Notice to Appear (i.e. this option is not available for people detained at a border or other point of entry),
• possess valid travel documents,
• have the financial means to leave the country on their own,
• post a bond of at least $500 within five days of the judge’s order,
• demonstrate good moral character,
• have no record of aggravated felonies or terrorism, and
• have made no prior requests for voluntary departure.

Detainees who want to exercise this option should request it early in the deportation proceedings and must leave the U.S. by a fixed date, set by the immigration judge.