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Immigration & Naturalization Law

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Your Options if You Are Arrested Entering the U.S. Without a Visa

Sometimes entering the U.S. without a visa can feel like the only option. People may attempt an illegal border crossing despite the serious consequences that can be waiting for them on the other side. If you are caught doing so, you should consult an immigration attorney near you to get help with your specific situation.

One consequence is that any illegal entry is recorded and stays on your record. This can harm your immigration status if you apply for a green card later on. You can also face fines, prison time, or sometimes both.

When you are initially caught without a visa, you may be arrested by local police or immigration officers. Typically, you would be transported to an immigration detention center. After an arrest, the two strategies for releasing someone from a detention center are:

  • Probation or parole if you have just arrived in the country and went through customs control
  • Release on bond or bail if you evaded customs control when entering the country or you overstayed your visa

In all cases, you must show that you do not represent a flight risk or a threat to the community or national security.

Common Ways To Be Detained at the Border

Your situation depends on how you were arrested:

  1. You surrendered to customs control
  2. You avoided customs control and were detained after entering the country
  3. You entered legally but your visa or green card expired

Individuals may be subject to detention and removal in all three cases, but different strategies will be applied to achieve their release from detention.

If You Turn Yourself in at the Border

Newcomers to the country have the possibility of requesting their conditional release if they turn themselves in at the border. Likewise, you could also request asylum if you meet all the conditions. You have one year from entering the country to do so.

If you qualify for asylum, you will receive an I-589 form and undergo a “credible fear” interview.

What Actually Happens When I Arrive at the U.S. Border and Ask for Asylum?

The U.S. government agency with jurisdiction over newcomers to the country is Immigration and Customs Enforcement Service (ICE). It is important to clarify that ICE agents are not immigration judges.

The ICE officer will decide whether you will receive parole based on immigration laws. This happens at the port of entry after determining:

  • Your identity
  • Your legal immigration status
  • Your national origin
  • If you represent a threat to the community, such as by having a criminal record
  • If you are at risk of escaping
  • If you crossed the border while evading customs control
  • If you exceeded the length of stay on your visa

If You Evade Customs or Exceed Your Stay Limit

For people who crossed by evading customs control or exceeded the legal stay limit granted by a visa or green card, requesting parole is not an option. However, you can request to be released on bail.

Who Decides What Happens To Me?

The competent authority to decide in these cases is not ICE but an immigration judge. To be released from a detention center, you must show that you are not a threat to the community or public safety and that there will be no risk of escape.

This is true in any of these three common cases:

  • Border crossing through customs control without a visa
  • Evasion of customs control
  • Legal entry with an expired visa

Having ties in the U.S. with family or friends who legally reside in the country and serve as sponsors is a great advantage. This is useful for demonstrating that a person can live in the country and attend all future legal meetings.

These people who can be sponsors can write letters of support attesting to:

  • Who the detainee is
  • Their history
  • Their relationship
  • That the sponsor will provide a place of residence and financial assistance

Being Released From Detention Centers on Bail

The judge will determine a reasonable amount of bail. They take into account the detainee’s ability to pay. There are laws that ensure “no person is put in prison merely because of their poverty.”

The reality is that even today, the bond amounts that judges establish are very high. This is unfortunate considering the precarious economic conditions in which immigrants recently arrived at the border find themselves. In the vast majority of cases, immigrants are fleeing their countries because of poverty. The average amount of a bond is $7,500.

Many detainees manage to post bail with the help of family members and non-profit organizations.

Will I Get an Attorney If I’m Arrested at the Border?

Whatever the mode of entry into the country, the government will not grant you a defense attorney in any of the three cases. There are free non-governmental legal aid services that immigrants can access, but with many immigrants in detention, the demand is very high, and the supply is low.

How Do You Know Which of the Three Categories the I am In?

The detained person must receive a Notice to Appear document detailing why they are considered deportable. At the top of the first page of this document will be the three options, and the option that corresponds to the person will be marked with an X.

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