If your spouse possesses a pending application, a valid visa, or was taken into custody without probable cause, the detention may be legally “unlawful”, so if you discover that they have been detained by Immigration and Customs Enforcement (ICE), you have to act strategically, as this is a critical emergency and you need to protect your family’s rights and prevent an expedited removal.
Locate your spouse immediately
ICE frequently transfers detainees between facilities in Texas, such as the (South Texas ICE Processing Center or the Houston Contract Detention Facility). Your first step is to use the Online Detainee Locator System to identify their current location and “Alien Registration Number” (A-Number). Some other steps include:
- Receiving the Notice to Appear (NTA): This document is the formal charging paper that explains why the government believes your spouse is subject to removal from the United States.
- Verification of legal basis: An arrest is considered unlawful if agents lacked a judicial warrant, failed to establish probable cause, or ignored evidence of valid legal status.
- Proof of lawful presence: Immediately gather original documents, such as a Green Card, an Employment Authorization Document (EAD), or proof of a pending U-Visa or asylum application.
Once located, you must ensure that your spouse does not sign any documents without a thorough legal review. A Voluntary Departure form, for example, often waives the right to a hearing before an Immigration Judge, leading to immediate deportation and a potential ten-year bar from re-entering the United States.
Invoke the right to counsel and protection
Unlike in criminal proceedings, the government does not provide a free attorney for immigration cases. However, under the Fifth Amendment, your spouse retains the right to remain silent and the right to legal representation at their own expense.
- Right to silence: Instruct your spouse to remain silent regarding their place of birth or immigration history until an attorney is present.
- Avoiding waivers: Detainees are often pressured to sign “Stipulated Orders of Removal”; signing these can permanently bar them from returning to the U.S.
- Documenting violations: If the arrest involved racial profiling, record every detail of the encounter.
Documenting these constitutional violations is essential for building a defense against an unlawful arrest.
Filing a writ of habeas corpus and Bivens claims
If ICE is holding your spouse without a valid legal basis or for an unreasonable duration without a bond hearing, an attorney can file a writ of habeas corpus in a Texas federal district court. This legal action forces the government to justify the detention before a federal judge.
Furthermore, if the arrest involved an illegal home search or physical mistreatment, your spouse may be eligible to file a Bivens claim. This allows victims of unconstitutional federal actions to seek financial damages for civil rights violations. Reviewing the case with an experienced immigration litigator is the most effective way to navigate these high-stakes federal procedures and secure your spouse’s release.