Arrest, Deferred Inspection, and USICE Custody

If you were found to have violated an immigration law or a criminal law, it will subject you to being placed in deportation proceedings. And, if you were arrested, it was likely in one of four ways:

• An officer came to your residence or employment to arrest you;
• After being arrested for a criminal offense, the local police notify the USICE of your status and an immigration “detainer” is placed upon you, adding an obstacle to your release from jail during the pendency of the criminal case (See, “USICE Detainers”, below)
• You have gone– without the benefit of legal counsel – to USCIS offices seeking information and are out of status or are suspected of committing an immigration violation;
• You seek to renew your expired “green card” and during the background check, USICE discovers you have a criminal conviction; or
• Lastly, you may have been arrested – usually only temporarily – and placed in “deferred inspection” upon returning to the United States from a trip abroad.

USICE Detainers: When the local police arrest a non citizen for a criminal offense, they will inform USICE that they have a non citizen in their custody depending upon the nature of the offense and the policies of the local police force. USICE will, in turn, file a “detainer” against the person which, under the regulations, requires the jail to not release the person for 48 hours from the time that the person is required to be released in order to give USICE time to take custody of the person. This presents a complex situation in which the case must be evaluated by an experienced deportation lawyer because in some instances it is recommended to pay the bond, which will trigger an arrest by USICE, and other instances, it is not recommended.

Deferred Inspections: it is the process by which an officer from the USCBP (“United States Customs and Border Protection”) inspects and assists USICE with inspecting you prior to being permitted to enter the country, usually at the airport (in Chicago) or at the border.

If you are a non US citizen and seek entry into the U.S., you will be required to have valid entry documents. If you are a returning non citizen in any status, including a Legal Permanent Resident (“green card” holder), and have any number of arrests in your background, you will be placed in what is called “deferred inspection.”

In this instance, you would be questioned at the airport about the arrests and allowed to enter the country (i.e., “paroled”) in order to permit USICE to conduct a further inquiry. The reason the inspection is “deferred” and not completed at the border or port is because the USCBP does not have all the information concerning the arrests and, second, it is within USICE’s jurisdiction to determine whether you will be admitted.

Deferred Inspection Appointment: the USCBP officer will ask that you obtain certified copies of the dispositions for all your arrests to determine:

• Which ones resulted in convictions; and
• Which of those convictions, if any, may constitute an inadmissible offense(s).

During a deferred inspection, your immigration attorney will be able to assist you to ensure that the correct interpretation of the offenses is made by the USCBP officer. For example, in some cases, there are offenses which are considered felonies under state law, but when under federal law, they are actually misdemeanors. If this is addressed by your immigration attorney at the deferred inspection, sometimes it can prevent you from being issued a Notice to Appear.