As part of its “mass deportation” plan, the incoming Trump Administration has promised to detain many more immigrants and asylum seekers.

Currently, ICE has the capacity to hold about 40,000 people at any given time. Tom Homan, Mr. Trump’s “Border Czar,” has promised to increase detention capacity to at least 100,000. Whether the budget or political will exists to implement these plans, we shall see, but certainly we can expect some level of increased immigration enforcement and detention. If nothing else, the new Administration plans a campaign of “shock and awe” to terrify non-citizens and perhaps convince them to leave the country.

Here, we will discuss what happens when an immigrant is detained, and how to prepare for that possibility. 

There are a few main ways that non-citizens end up in ICE (Immigration and Customs Enforcement) custody: (1) They arrive at the border and are detained; (2) They are stopped by local law enforcement or commit a crime, and are then passed along to ICE; or (3) They are directly detained by ICE, usually from home or in a work-place raid.

I would guess that the third possibility is by far the least common. I’ve represented hundreds of asylum seekers, and probably less than 1% had any contact at all with ICE; even fewer were detained. So if you are not arriving at the border or getting arrested by the police, the odds of being detained by ICE are pretty low. That said, such an encounter is not impossible, and I wrote here about what to do if you are stopped by ICE.

For anyone with even a small chance of being detained (i.e., every non-citizen), there are some steps you can take to prepare. First, make sure your family members and friends have your emergency contact list, and if you have children, make a plan with a trusted person to assist the children in the event that you are detained. Second, be sure that important documents for you and your immediate family members are in a safe and accessible place (passports, birth certificates, marriage certificate, immigration applications and receipts, financial records, vehicle and property documents, evidence for your case, any criminal records). Third, if you have U.S.-born children, you might want to obtain their passport for your home country, so if you are deported, they can more easily go with you. Fourth, if you have children or significant property in the U.S., you might want to arrange for a power of attorney so someone can take care of the children or manage your property. Finally, you might talk to a lawyer to learn what options (if any) are available for you to remain in the United States, and to think through any specific steps that you can take now.

Some of these ideas are easy; others require more work or money. However, if you are detained, it will be much more difficult to protect your family, manage your affairs or litigate your case if you have not prepared in advance. 

If you are detained, you can ask to be released on bond. This is where you deposit money with the U.S. government (usually several thousand dollars), and the government holds that money until the end of your case. If you fail to appear for a court hearing, ICE check-in or deportation, you lose your money. Not everyone is eligible to be released on a bond, and sometimes, those who are eligible are denied a bond. Other times, people who are ineligible for a bond are released anyway, usually because ICE does not have the bed space to hold everyone. 

For people who are detained and not released, they must present any applications for relief from behind bars. To make matters worse, people in ICE detention are often relocated to prisons in remote areas, and they are forced to present their cases to judges in those areas. In these circumstances, it is very difficult to prepare applications, gather evidence, and contact witnesses. It can also be difficult and expensive to find a lawyer. Detained cases move more quickly than non-detained cases (since the government does not want to pay to keep people in jail), and the “hurry up” schedule makes it even more challenging to prepare a defense to deportation. 

Aside from these differences, detained cases in Immigration Court generally proceed in the same way as non-detained cases, and I wrote about the hearing itself here.

One last point: If you look at approval rates for Immigration Judges who primarily decide detained asylum cases, you will see that a high percentage of cases are denied. This is in part due to the factors mentioned above (that detained cases are more difficult to litigate), but there are other reasons as well. Many immigrants who are detained file for asylum as a last resort, and such cases tend to be very weak. Also, many detained asylum seekers have missed the one-year filing deadline, and such applications are often denied because they were filed too late. Finally, some detained non-citizens have criminal records, and this makes it more difficult or impossible to win asylum. For all these reasons, IJs who decide detained cases have higher denial rates. But if some of these issues do not apply to you, and if you prepare in advance, it is entirely possible to win an asylum case, even for applicants who are detained. 

The Trump Administration wants you to be afraid. But try not to let them get to you. Despite their plan for mass deportations, the likelihood of actually being detained is probably quite low. If you are prepared and keep an eye on the news, there is nothing else to do except remain calm and carry on with your life. And have faith that this too shall pass.