Will U.S. ICE Detain You?

By: Nicole Mackmiller, immigration attorney

Recently, the Department of Homeland Security expanded its policies for foreign nationals that are subject to detention by U.S. ICE. In July 2025, DHS started interpreting INA § 235(b) to require the mandatory detention of all “applicants for admission” by U.S. ICE. As a result, U.S. ICE is now detaining anyone who entered the U.S. “illegally” or without being inspected and legally admitted to the U.S., and there is no bond hearing to review U.S. ICE’s decision to detain. Prior to July 2025, mandatory detention by U.S. ICE was reserved for foreign nationals convicted of specific crimes, certain immigration violations, or suspected terrorists. See INA 236(c); INA 236A.  Now, illegal entrants into the U.S. are being detained by U.S. ICE regardless of their length of physical presence in the U.S., whether they have a U.S. citizen spouse or child, or whether they have a criminal record. 

In May 2025, the Board of Immigration Appeals held in Matter of Q. Li, that they interpreted INA § 235(b) to extend to individuals apprehended near the border without a warrant, shortly after entering without inspection and placed in removal proceedings. Foreign nationals who are detained under INA § 235(b) don’t have any right to a bond hearing before an immigration judge, under either statutory or regulatory authority. With detention under INA § 235(b), DHS officials do have statutory authority to release the foreign national on parole under INA § 212(d)(5), but this is unlikely to occur in most situations.

What does this mean for foreign nationals who entered the U.S. and have clean criminal records? Although they weren’t enforcement priorities or subject to mandatory detention under the first Trump Administration, if U.S. ICE encounters them, they’ll be detained without a bond hearing and are unlikely to obtain parole. if your client has entered the U.S. illegally, they’re most likely subject to mandatory detention by U.S. ICE; however, there are other reasons that detention by U.S. ICE can occur, such as past criminal convictions or immigration violations. Having your client consult with an Ann Arbor immigration attorney is their best way to find out whether they’re likely to be an enforcement priority for U.S. ICE or whether they could be bond eligible.

There have been accounts of U.S. ICE officers waiting outside of courthouses, businesses, and schools to detain foreign nationals. No place appears to be immune from U.S.. ICE enforcement. If you’re a foreign national, t’s important to prepare you for the possibility of detention by US. ICE. Once a person is detained, it can be difficult to obtain records that will help you present your case to the immigration court. 

If you believe you may be subject to U.S. ICE’s detention, I would encourage you to take the following 5 steps:

1. Create a list of contacts. Create a list of people and entities who would have evidence of their physical presence in the U.S., fear of returning to their country of citizenship, and / or hardship that a family member would suffer if deportation occurred. 

• What are the names of their immediate family members and friends in the U.S. who could testify on their behalf in immigration court about their good moral character or hardship that their family would suffer if they were deported? 
• Do they have a person who could obtain records from their country of citizenship if necessary? 
• Where are their medical records, tax records, and children’s health and school records maintained? 
• Each contact’s name, phone number, email, and mailing address should be listed.

2. Execute a Durable Power of Attorney. If you execute a Durable Power of Attorney before you’re detained by U.S. ICE, it will allow a trusted individual to manage their your property, obtain their your records, and access your bank accounts. The Durable Power of Attorney could be drafted so that it is effective upon you being detained by U.S. ICE. The person designated to have authority over your affairs should have lawful status in the U.S. Many immigration applications have filing fees, ranging from $100 to $5,000 so it’s important that you have a way to pay the fees to present your case in Immigration Court if you’re detained.

3. Set up an immigration action plan. An immigration action plan is like a fire evacuation plan for a building; we hope that it’s never needed, but if it happens, everyone needs to know what to do. Write down a list that addresses:

• Who will you call if detained by U.S. ICE? 
• Who will contact your close family members, attorney, work, school, and anyone else who may need to be alerted of your detention by U.S. ICE?
• Who has access to the documents that you’ll need to present your case to the Immigration Court?
• Who will retain an Ann Arbor immigration attorney or help you present your case in immigration court?

4. Children require additional planning. If you have children in the U.S., then they should consider addressing the following issues:

• Is there a trusted individual who you could designate as a guardian in the event that you’re detained by U.S. ICE? 
• Is there a person with legal status in the U.S. listed as a “pick-up person” for the child’s school, day care, sport team, and / or extracurricular activity? 
• Who could be listed in the child’s medical records as an alternate person to take the child the doctors so medical treatment could continue if  the parents are detained?
• Who, when, and how will the child be told about the parent being detained, and where will the child stay? 

5. Create a budget for future immigration costs. Presenting your case in immigration court can be a costly process. Most applications for immigration relief have filing fees that range from $100 for asylum to $5,000 for a Motion to Reopen. In addition, retaining expert witnesses who can testify to hardship or country conditions can help strengthen a foreign national’s case depending upon the type of relief from removal that is being pursued. Obtaining certified records of birth, marriage, criminal records, and other court records also have varying fees attached to them. Immigration attorney fees will also vary depending upon the type of relief from removal sought, number of court hearings, and number of hours worked. Creating a monthly budget that saves towards the costs of future immigration litigation will put your client in a position where they present their case fully in immigration court.   

Protect Your Rights with an Experienced Ann Arbor Immigration Attorney

If you or someone you know may be subject to detention by U.S. ICE, it’s important not to wait until enforcement occurs to seek legal guidance. Every situation is unique, and the laws surrounding detention, parole, and bond eligibility are constantly evolving. An experienced Ann Arbor immigration attorney can assess your circumstances, explain your options, and help you develop a proactive plan to protect your rights and your family. Contact our office today to schedule a confidential consultation and get the guidance you need to navigate this complex and rapidly changing area of immigration law.