Your Rights in Immigration Detention: What ICE Must — and Must Not — Do

Across New York and the rest of the country, immigration detention has expanded rapidly under the current forceful enforcement climate. Arrests by Immigration and Customs Enforcement (ICE) are up, detention is being used more aggressively, and many people find themselves taken into custody with little warning. For individuals and families facing this reality, understanding basic rights in immigration detention is not optional; it is essential.

As New York immigration defense attorneys who regularly represent detained individuals in immigration courts and ICE facilities, deportation and removal defense is at the core of our work at Gladstein & Messinger, P.C. While every case is different, there are fundamental legal protections that apply in immigration detention, and just as importantly, there are limits on what ICE is allowed to do.

Immigration Detention Is Civil, but the Consequences Are Severe

One of the most confusing aspects of immigration detention is that it is classified as civil, not criminal. People are detained not because they have been convicted of a crime, but because the government alleges they are removable under immigration law. That distinction has enormous legal consequences. Unlike criminal defendants, people in immigration detention do not have the right to a government-appointed attorney. At the same time, the consequences — loss of freedom, prolonged detention, and potential deportation — can be just as serious as criminal incarceration.

Because immigration detention is civil, ICE operates under a different set of rules. But “different” does not mean “unlimited.” Federal law, constitutional principles, and agency regulations still impose boundaries on ICE’s authority.

The Right to Remain Silent Still Applies

One of the most important rights a detained person has is the right to remain silent. ICE agents may question individuals about immigration history, country of origin, manner of entry, or prior encounters with immigration authorities. A detained person is not required to answer questions about their status or how they entered the United States.

What matters in practice is knowing that anything said to ICE can later be used in removal proceedings. Statements made during arrest or detention often become evidence in immigration court. Politely declining to answer questions until speaking with a lawyer is a lawful and often critical step in protecting one’s case.

The Right to an Attorney — But at Your Own Expense

People in immigration detention have the right to be represented by an attorney, but the government does not provide one. This is one of the starkest differences between immigration proceedings and criminal cases. ICE must allow detained individuals to contact counsel, receive legal mail, and meet with their attorney, even while detained.

In New York, this right is particularly significant because detained individuals are often transferred far from their families and communities, sometimes to facilities upstate or even out of state. These transfers can severely limit access to counsel if a lawyer is not already involved. Once a lawyer enters a case, ICE is required to communicate through counsel regarding court proceedings and certain enforcement actions.

The Right to Know Why You Are Detained

ICE is required to inform a detained person of the reason for detention and the legal basis for removal proceedings. This usually comes in the form of a Notice to Appear (NTA), which lists the government’s allegations and the immigration law provisions it claims were violated.

Errors in NTAs are common. Incorrect allegations, missing information, or improper service can sometimes become grounds for challenging detention or removal proceedings. Reviewing these documents carefully with an attorney is an essential part of any deportation defense.

Bond Hearings and the Right to Challenge Detention

Not everyone detained by ICE must remain in custody for the duration of their case. Many individuals are eligible for a bond hearing before an immigration judge, where the judge decides whether the person can be released while proceedings continue.

At a bond hearing, the government argues that the individual is a flight risk or a danger to the community. The defense presents evidence of family ties, length of residence in the United States, employment history, and lack of criminal history. While recent enforcement policies have expanded the use of mandatory detention, bond eligibility still exists in many cases, and legal advocacy can make the difference between release and prolonged detention.

Even in cases labeled as “mandatory detention,” there may be constitutional challenges available when detention becomes unreasonably long.

Due Process and Humane Conditions of Confinement

Detained immigrants retain constitutional protections under the Due Process Clause. ICE detention facilities must provide basic standards of care, including access to medical treatment, adequate food, and safe living conditions. Detainees also have the right to practice their religion and to be free from abuse or retaliation.

When detention conditions fall below legal standards, including denial of medical care or prolonged isolation, attorneys can raise these violations through formal complaints, motions in immigration court, or federal habeas petitions. These issues are not merely administrative; they can directly impact a person’s ability to participate meaningfully in their own defense.

Access to Immigration Court and a Fair Hearing

Every person placed in removal proceedings has the right to a hearing before an immigration judge. This includes the opportunity to contest the government’s allegations, apply for relief from removal, and present evidence in support of their case.

ICE may not deport someone with a pending case unless a final order of removal has been entered and all applicable stays are lifted. Detained individuals also have the right to appeal adverse decisions to the Board of Immigration Appeals and, in some cases, to federal court.

Family Contact and the Reality of Detention Transfers

ICE detention often separates individuals from their families with little notice. While ICE must allow reasonable access to telephone calls, detention transfers can make communication difficult. Families frequently struggle to locate loved ones after arrest.

Knowing how to use the ICE Online Detainee Locator System, understanding how to obtain the person’s A-number, and involving an attorney early can reduce the chaos and confusion that often follow detention.

Why Legal Representation Is So Important in Detention Cases

Immigration detention is designed to move quickly, often overwhelming people before they understand their rights or options. Studies consistently show that individuals with legal representation are far more likely to obtain release from detention and to succeed in defending against deportation.

An experienced removal defense lawyer can intervene immediately by requesting bond hearings, filing motions to terminate or suppress evidence, and ensuring that ICE follows the law. Without counsel, detained individuals are often forced to navigate a complex legal system alone, with life-altering consequences.

Getting Help Matters. Contact Gladstein & Messinger for Removal and Deportation Defense Today

If you or a loved one has been detained by ICE in New York, time matters. The earlier a lawyer becomes involved, the more options may be available. Gladstein & Messinger, P.C., represents individuals in immigration detention and removal proceedings and works to protect the rights that ICE is legally required to respect.

Understanding your rights is the first step. Enforcing them often requires experienced legal advocacy. Contact us today.