When someone is in United States Immigration and Customs Enforcement (ICE) custody, families often receive conflicting advice about what type of lawyer to contact. This confusion can cost precious time and delay critical legal action.
Immigration attorneys are often the first and most important advocates for detained immigrants. But there are specific situations where other types of legal expertise may also be needed.
This information is not a substitute for legal advice from a qualified attorney or accredited representative.
Here’s what you need to know:
- Immigration lawyers can seek bond, fight deportation and challenge unlawful detention through habeas petitions.
- An immigration lawyer may not be able to help if there is no legal relief available or they lack federal court experience.
- “Federal lawyer” and “civil lawyer” are not formal categories. The terms may refer to lawyers who handle habeas cases in federal court.
- Some people may also need a criminal defense lawyer or federal litigation attorney.
- Families should contact a lawyer quickly. Legal action may help prevent transfers to distant detention centers.
What can an immigration lawyer do for someone who is in ICE custody?
An immigration lawyer can evaluate the person’s immigration history and determine what legal options may be available. That can include representing them in removal proceedings. When someone is eligible, the immigration lawyer can seek release through an immigration bond proceeding.
An attorney can also determine whether there is any immigration relief or another legal defense available.
But there is no universal answer, according to Lauren Reiff, Associate Director of the New York Legal Assistance Group (NYLAG)‘s Immigrant Protection Unit.
“It’s pretty case-by-case in terms of what an immigration attorney can do,” she told Documented. “There are situations in which an immigration attorney may not be able to help. A person in ICE custody’s options would be assessed in an individual consultation.”
An immigration attorney can help with matters such as:
- Representing the person in immigration court
- Seeking release from detention, including requesting an immigration bond when available
- Defending the person against deportation
- Applying for asylum or other forms of immigration relief
- Reviewing the person’s immigration history
- Identifying whether the person may qualify for relief from removal
- Advising the person about the consequences of accepting voluntary departure or signing immigration documents
Are there situations in which an immigration lawyer may not be able to help?
Yes. Immigration law is highly dependent on the person’s individual history. The person’s immigration status, previous applications, prior removal orders, criminal history, manner of entry and other circumstances can affect what legal options are available.
There may also be situations in which the immediate legal problem involves federal court rather than immigration court.
“If someone in ICE custody is looking for a lawyer to file a petition for habeas corpus, the attorney would need to be admitted in the relevant federal district court and it is advisable to ask about their experience with habeas petitions. Not all immigration attorneys have this experience, and some federal attorneys do, even if they do not have immigration expertise,” Reiff said.
A habeas corpus petition is a federal-court proceeding that can be used to challenge detention. That is different from defending someone against removal in immigration court.
What does “federal Lawyer” or “civil lawyer” mean?
These terms are not formal legal titles, and they can cause confusion.
“Civil lawyer” simply means a lawyer who handles civil matters, as opposed to a criminal defense attorney or prosecutor. Immigration cases are civil proceedings, so an immigration lawyer is a type of civil lawyer.
“Federal lawyer” typically refers to an attorney admitted to practice in federal court, where habeas corpus petitions must be filed. A “federal attorney” might have experience with habeas litigation but may lack immigration law expertise. Conversely, an immigration lawyer may not be admitted to federal court.
When people say “contact a federal lawyer”, they usually mean: find an attorney who can file a habeas petition in federal court. That could be an immigration attorney with federal court admission or a specialized federal litigator.
What should families do immediately after ICE detains a loved one?
“Families should contact an immigration attorney or advocate as quickly as possible, even if they are still in the process of collecting documentation,” Reiff said. “Legal representatives can often begin working on immediate interventions such as habeas petitions in order to prevent [U.S. Department of Homeland Security] DHS from relocating the detained individual to a detention center with harsher conditions, or that is geographically distant and further isolated from family, community, personal records and access to legal counsel.”
At the same time, they should gather whatever records and documents that are available such as:
- Birth certificates
- Passports
- Government identification
- Immigration applications
- The person’s A-Number
- Documents concerning pending immigration cases
- Marriage certificates
- Work permits
- Health records
- Prescription medication lists
- Allergy and current health information
- Relevant medical records
- Contact information for current medical providers
These documents can help an attorney quickly understand the person’s situation.
Families can also use the Department of Justice’s EOIR case-information system to check certain immigration case information. Not every case or piece of information will appear there.
And because DHS can transfer detained people between facilities, families should not assume the person will remain at the same detention center.
How can families avoid immigration scams?
The immigration legal landscape is full of scams and bad actors.
“Watch out for unscrupulous and outright predatory bad actors posing as immigration attorneys or misrepresenting their legal capabilities,” Reiff said. “We’ve heard plenty of horror stories in which scammers or underqualified legal advisors are making grand empty promises guaranteeing immediate successful outcomes to detained individuals and their families in order to make a quick buck off of their desperation to secure their release as quickly as possible.”
Where can I find trusted immigration attorneys?
Below is a quick list of options:
- New York State Office for New Americans hotline: 1-800-566-7636
- American Immigration Lawyers Association (AILA) directory: https://www.ailalawyer.com/
- In New York City: Call 311 for Legal Support Center screenings
- NYLAG’s Immigrant Protection Unit: nylag.org
You can also find pro bono lawyers and free immigration legal services in New York in our guide.
NYLAG encourages immigrant parents to prepare a safety plan in advance for the future care and custody of their children so that they can ensure their children will be looked after and cared for by a trusted adult if the parent is detained or deported.
Call NYLAG’s free confidential hotline at (212) 659-6188 or visit nylag.org/standby-guardianship to learn more about standby guardianship and other legal tools.
