Legal Options for Undocumented Immigrants Facing ICE Arrest

Some of the legal options available to undocumented immigrants facing ICE arrest include:

• Asylum.
• withholding of removal or CAT protection.
• Cancellation of removal.
• Humanitarian visas (U, T and VAWA).
• Release on bail or humanitarian parole.
• Reopening or suspending cases with prior deportation orders.

In this blog, we’ll explain each of these alternatives in detail and how they can help prevent deportation.

Why is it important to know the Legal Options for Undocumented Immigrants Facing ICE Arrest?

When an immigrant is detained by ICE, they often feel like they have no way out. However, knowing their legal options can mean the difference between immediate deportation and the ability to remain in the United States.

The law provides various immigration relief measures that, with appropriate advice, can slow or halt the removal process.

Basic rights when detained by ICE

If an immigration officer detains you, you still have rights, even if you are undocumented. Among the most important are:

• Remain silent: You are not required to answer questions about your immigration status or country of origin.
• Right to an attorney: ICE will not provide one for free, but you can hire an immigration lawyer to represent you.
• Do not sign anything without advice: Never sign documents you do not understand, as they could be your acceptance of voluntary departure from the United States.
• Ask to speak with your attorney or an immigration judge before giving any answers.
• Call a family member or lawyer after being arrested.

Knowing and asserting these rights can give you the opportunity to prepare an immigration defense.

Basic Plan in Case of Arrest: Documents and Family Strategy

Every immigrant should know how to act if ICE agents knock on your door, as this allows them to have a preventive plan in case of a possible arrest. Therefore, it is key to keep the following in mind:

Important documents to have on hand

To strengthen your legal defense and avoid wasting time in emergency situations, it is advisable to gather the following documents:

• A valid US-issued ID. For example, a driver’s license.
• Proof of residence in the country if you do not have current status, such as rental contracts, bills, or medical records.
• Copies of pending immigrantion applications, if any.
• Copies of current work permits, USCIS notifications, or appointment letters.

Family strategy in case of arrest

In addition to the documents, it’s important for the family to be prepared. Some practical steps include:

• Notify a trusted family member or friend where important documents are.
• Designate an emergency contact who can quickly reach an immigration attorney.
• Prepare a care plan for your children, including powers of attorney if necessary.
• Always have reliable contact numbers on hand , such as those of lawyers or aid organizations.

These measures help you react better during an arrest and prepare your family for a possible immigration raid.

What are the most common legal options available to undocumented immigrants facing ICE arrest?

Following an immigration arrest, there are several alternatives that can provide a real opportunity for defense. Below are the main options available on a case-by-case basis:

Asylum application

It is possible to apply for asylum in the United States if you have a well-founded fear of persecution in your home country. To apply for asylum, you must:

• File your asylum application within one year of arriving in the United States; and
• Provide credible evidence of the danger you would face if returned to your country.

If granted, asylum gives you legal status, employment authorization, and a path to lawful permanent residence.

Withholding of removal

is similar to asylum, but it requires showing a high likelihood of persecution if deported. However:

• It does not provide a Green Card or lawful permanent residence.
• It does not require filing within the first year of arrival.
• It can be requested even after years of living in the United States without legal status.

Protection under the Convention Against Torture (CAT)

Protection under CAT is typically granted when an individual demonstrates a high likelihood of being tortured in their home country, either directly by the government or with the government’s consent or acquiescence.

This form of relief prevents deportation and allows the person to remain in the United States under government supervision.

Cancellation of Removal

Cancellation of removal is available to non-lawful permanent residents if they meet the following requirements:

• They have lived in the United States for at least 10 years; and
• They have good moral character, and their removal would cause exceptional hardship to an immediate family member who is a U.S. citizen or lawful permanent resident.

This form of relief is granted only to a limited number of immigrants each year and must be requested before an immigration judge.

U Visa for victims of certain crimes

The U visa applies to those who have been victims of certain qualifying crimes in the United States. For example:

• Domestic violence.
• Sexual assault.
• Kidnapping.

The U visa offers protection against deportation, work authorization, and the possibility of obtaining a Green Card. However, it requires prior cooperation with law enforcement authorities.

It’s important to keep in mind that a U visa can be denied even if you meet several of the requirements. Therefore, it’s essential to have adequate legal counsel to present a strong case.

T Visa for Victims of Human Trafficking

The T visa is designed for immigrants who have been forced or deceived into situations of:

• Labor exploitation.
• Sexual exploitation.
• Involuntary servitude.

To qualify, the victim must be in the United States and cooperate with law enforcement investigations

Note: Although the T visa provides protection against deportation and immigration benefits, it does not always allow free travel outside the United States. For more details, check our blog on whether you can travel with a T visa.

VAWA (Violence Against Women Act)

The VAWA visa offers protection to victims of physical or psychological abuse by an abuser who is a citizen or lawful permanent resident. This abuser may be a:

• Spouse;
• Parent; or 
• Children.

Unlike other visas, this one can be applied for independently of the abuser, allowing you to obtain a Green Card without depending on them.

Adjustment of status through a relative

In certain cases, a US citizen or resident relative may file an application for U.S. residency on your behalf by family petition using Form I-130 . 

In certain cases, a US citizen or lawful permanent resident relative may help you apply for US residency through a family petition using Form I-130. (To learn more about this process, consult our family-based immigration lawyer page).

Depending on the situation, you may be able to apply for adjustment of status.

Options for release after an ICE arrest

Being detained by ICE does not mean that the immigrant must remain incarcerated throughout the entire process. 

The law provides mechanisms that allow for temporary release while the case is pending. Among the main legal alternatives to immigration detention are:

Immigration bail

An immigration judge may authorize release on an immigration bond while the case is pending. To qualify, the individual must demonstrate:

• No danger to the community.
• No serious criminal record.
• Strong ties to the United States, such as family or employment.

Humanitarian parole

In humanitarian or medical situations, US Immigration and Customs Enforcement (ICE) may grant parole release without the need to post bond.

What happens if there is already a deportation order?

Having a final order of removal does not mean all options are closed. There may still be forms of relief available to stop or overturn the order.

Options available when facing a removal order

Some of the most common options to challenge or stop a removal order include:

Motion to reopen

A case is reopened when new facts or relevant evidence emerge that were not submitted in the original proceedings.

Temporary Stay of removal

This relief temporarily stops the removal order from being carried out, giving the immigrant time while a new application is reviewed.

Access to an immigration waiver

Even with an active deportation order, the immigrant may qualify for some form of immigration waiver of inadmissibility.

Who is at risk of being arrested by ICE?

Anyone without immigration status in the United States may be at risk of being arrested by ICE. However, there are specific profiles that these agents typically prioritize:

Main groups at risk

• Individuals who entered without inspection (EWI).
• Those who overstayed their visa
• Noncitizens with criminal records.
• Individuals with final orders of removal.

Cases in which you can be arrested even with legal status

Even with valid status, certain immigration violations or prior convictions may lead to an immigrant being detained by ICE. These include:

• Lawful permanent residents with felony convictions.
• Temporary visa holders who have committed immigration fraud or violated visa conditions.
• Individuals with national security or terrorism allegations.

Our attorneys help you understand the legal options available to undocumented immigrants facing ICE arrest

As we have seen, an ICE arrest is one of the most distressing experiences an immigrant can face. However, that does not mean all is lost.

At Lluis Law, our immigration lawyers in Los Angeles have over 50 years of combined experience defending the Latino community in the most complex cases. We offer:

• Immediate analysis of your situation after an arrest
• Strategic defense in immigration court
• Preparation and filing of immigration applications
• Support at every step of the process

Never sign any documents without legal advice. Contact us today for a personalized consultation to learn about your options if you are arrested by ICE.