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Undocumented’s options – depart voluntarily or be detained

Two weeks ago, Rey Galleon, a Filipino who had been residing in unlawful status for several years, was arrested by ICE and decided to depart “voluntarily” to avoid being incarcerated.

According to Galleon’s public statement, the ICE officers gave him the choice of leaving voluntarily or staying in jail for up to six months. For fear of being detained for six months, he chose to depart.

Will the case of Mr. Galleon be a common occurrence for 300,000 Filipinos who are undocumented?

Mandatory detention

Any person who is in the United States is entitled to due process rights under the U.S. Constitution. This includes anyone who is present in the United States in unlawful status. The constitutional protections of due process and equal protection are not limited to U.S. citizens; they also apply to every person regardless of immigration status.

Generally, this means that the right to legal counsel and to a hearing should be afforded a person. While these rights exist, ICE officers may continue to detain a person while awaiting a court hearing. This happens in particular cases where the law limits the exercise of this right to certain individuals who are subject to mandatory detention and those who are arriving aliens.

The following persons are subject to mandatory detention:

  1. those who have criminal inadmissibility grounds;
  2. those with convictions of multiple crimes of moral turpitude, aggravated felonies and controlled substances among others;
  3. those who are inadmissible based on terrorist activities.

Arriving aliens also may not be granted bond hearing and could remain in custody until removed. The law defines an arriving alien as one who is coming to the United States at a port of entry or are seeking transit through the United States at a port of entry.

Release on bond

If an individual is not subject to mandatory detention or is not an arriving alien, either the ICE sets the bond or the immigration judge decides whether an individual is subject to release on bond. Until the arrested individual is heard, he remains incarcerated unless ICE makes a determination of a release on bond.

Generally, ICE counsel will not object to a release on bond if the individual is not a flight risk and other factors exist to show that the individual will appear on the date set for hearing. There is a lot of discretion on the part of the immigration judge on whether the individual is released on bond. It is also during these times when the detainee decides to just depart instead of staying in jail to await the hearing before the immigration judge.

While those who are in unauthorized presence are lumped into one category as being “undocumented,” each case will be treated differently depending on the circumstances of each case.

Given that the DHS has been given additional resources to enforce immigration law not only against those with criminal convictions, but also anyone who is found to be in unlawful status, it is important for those concerned to make timely informed decisions.

Should they decide to stay, they have to know the risks and prepare themselves to take legal steps when ICE comes knocking at their doors. The risk involves incarceration until released on bond. If they are not willing to take the risk, then the difficult decision to depart voluntarily becomes imminent.

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