What Happens If I’m Arrested and Taken To Immigration Jail?

First, you will be given a “Notice to Appear.” This document tells you why you are in immigration jail, which is often that you have violated the terms of your visa or entered the US without a visa or committed certain crimes. The notice to appear will also specify if you will be deported if you are found guilty.

You will then be scheduled to appear before an immigration judge. In Colorado, there is an immigration courtroom at the Detention Facility. When you appear, you may ask the Judge for more time to hire an attorney, and if your request is granted your case may be continued for 1-2 months. You may also ask the Judge if you may post bond and be released from jail.

If you do not want to contest your notice, you may also ask the Judge for Voluntary Departure (VD). This means that you are accepting your return home and will pay for the one way plane ticket. The reason to consider this options is that, if you haven’t overstayed your I-94 time period triggering the 3 / 10 year bars, then it’s possible you could apply for another visa to return to the US.

For example, you came to the US on a student visa for 1 year. After you finished your 1 year school program you took a job without applying to change your visa from student to worker. Two months later, you are arrested for drunk driving and taken to Denver County Jail where the officer discovers you are an alien.

The jail calls Immigration and Customs Enforcement (ICE) and places an immigration hold on you. First, you appear in Denver County Court to take care of the drunk driving ticket. Next, you go to immigration court.

Since you do not have any valid reason to ask the Judge to allow you to remain in the US (according to your attorney you do not have any USC / LPR immediate family or a reasonable claim for asylum), you can request Voluntary Departure. This way, when you return home, it is theoretically possible to apply for another visa (such as a tourist visa) without automatic rejection. Of course, the State Department Foreign Officer who reviews your application may deny it since you had worked illegally for two months the last time you were in the US.

Obviously, in this hypothetical scenario the person who is thinking about asking for Voluntary Departure would be smart to contact an immigration attorney first. An attorney could help this person find a reason to request asylum, for example, or perhaps find another way to allow this person to request legal residency.