Undocumented Immigrants’ Rights in Custody of Immigration and Customs Enforcement

In the current political climate, U.S. Immigration and Customs Enforcement (ICE) detention centers have been able to get away with serious human rights violations. The overall lack in knowledge and information regarding the rights of the undocumented detainees very much contributes to what ICE is able to get away with. Therefore, it is important for  undocumented detainees to comprehensively understand the rights afforded to them by the U.S. Constitution, immigration law, federal law, and international law. The following is a discussion of these rights:

Rights of ICE Detainees According to the Constitution

Contrary to what some people may believe, detainees do have constitutional rights, according to the due process and equal protection clauses in the Fifth and 14th Amendments. The amendments read as follows:

  • Fifth Amendment: “No person shall be… deprived of life, liberty, or property, without due process of law…”
  • 14th Amendment: “No state shall… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

However, these rights can be limited through the “plenary power doctrine” which gives the legislative and executive branches full power to regulate immigration, subject to oversight from the judicial branch. Simply put, detainees are administered by immigration law, and the executive branch has lots of power in deciding what procedural rights undocumented immigrants have.

Rights of ICE Detainees According to Immigration Law (Defense Against Removal)

  • You have the right to NOT sign any statements or documents.
  • You have the right to NOT volunteer information about your immigration status (the right to remain silent).
  • You have the right to request release under bond.
  • You have the right to see an immigration judge for a hearing to see if you are eligible for relief to stay in the United States.
  • You have the right to hire a lawyer (the government does not pay for or provide a lawyer).
  • You have the right to represent yourself, but this is highly discouraged.
  • If the immigration judge enters an order of removal against you, you have the right to appeal the judge’s decision to the Board of Immigration Appeals (BIA).
  • If you do not agree with the Department of Homeland Security’s (DHS) decision to reinstate a prior removal order, you have the right to make a written or oral statement contesting that decision.
  • If you are afraid to return to your country, you have the right to have a “reasonable fear interview” with an asylum officer.
  • If the DHS has given you a Final Administrative Removal Order (FARO), you have the right to ask for more time to answer the charges against you, deny the charges and state why the charges are incorrect, ask for an opportunity to see the evidence that the DHS has against you, argue that the crimes are not aggravated felonies, admit that the charges are correct and waive the right to appeal a final administrative removal order to a federal court, and state the country to which you want to be removed if a final order of removal is entered against you.
  • If DHS does not place you in removal proceedings before an immigration judge but issues a final administrative removal order in your case, you have the right to appeal the order to the federal circuit court of appeals in a “Petition for Review.”

Rights of the Undocumented Detainees According to Federal Regulations (Outside of Defense Against Removal)

  • You have the right to file a complaint about detention conditions.
  • You have the right to make a phone call.
  • A juvenile detainee has the right to be detained with his/her family unit unless danger is determined in doing so.
  • You have the right to require that an officer of the same gender performs pat-down, strip, or visual body cavity searches unless in exigent circumstances. If a cross-gender search occurs, it must be documented for your safety.
  • Juvenile detainees have the right to refuse a body cavity search by ICE facility staff and instead be searched by a medical practitioner.
  • You have the right to shower, perform bodily functions, and change clothing without being viewed by staff of the opposite gender, except in exigent circumstances or when such viewing is incidental to routine cell checks or is otherwise appropriate in connection with a medical examination or monitored bowel movement. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an area where detainees are likely to be showering, performing bodily functions, or changing clothing.
  • You have the right to refuse a physical examination that has the sole purpose of determining your gender. Gender will be determined by conversations with you, by reviewing medical records, or, if necessary, learning that information as part of a standard medical examination that you must undergo as part of intake or other processing procedure conducted in private, by a medical practitioner.
  • All detainees with disabilities and/or who are not proficient in English have the right to translation services from the detention center to explain the detention center’s orientation about the zero-tolerance policy regarding sexual abuse, including prevention, definitions, how to report instances of sexual abuse, self-protection, prohibition against retaliation if you come forward, and the right of a victim to receive treatment and counseling, and receive a Sexual Assault Awareness Information pamphlet.

Rights of the Undocumented Immigrants According to International Law

International human rights law secures the well-being and human rights of all people, including all persons in custody, regardless of alienage or the reason for their detention. Together, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention on the Elimination of All Forms of Racial Discrimination, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and Standard Minimum Rules for the Treatment of Prisoners, all of which the United States is a party of and held accountable under

  • prohibits torture, cruel and inhuman degrading treatment,
  • ensures non-discrimination while in custody,
  • protects against ill-treatment or intimidation as a consequence of complaining,
  • ensures no more restriction than required for safe custody, prompt medical care and attention,
  • secures access to hygiene and sanitary conditions, and
  • requires health care for detainees which meets national and community standards.

Click on the following links to discover the full scope of rights afforded to all, including ICE detainees, under international law:

The foregoing should serve as a good foundation of understanding the rights of an undocumented detainee. If these rights are not being upheld, contact and consult with an attorney to determine what the best next steps are to secure the fair treatment you deserve.

This article is researched and co-authored by Sawsan Selim.

Disclaimer: Nothing in relation to the enclosed information should be construed and or considered as legal advice for any individual, entity, case, or situation. The following information is prepared for advertisement use only. The information is intended ONLY to be general and should not be relied upon for any specific situation. For legal advice on your specific situation, we encourage you to consult an attorney experienced in the area of Immigration Law.

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