Deportation hearings while you are in prison

This page explains deportation (removal) cases that happen while someone is in prison or jail. It is general information, not legal advice. Every case depends on the conviction, the person's history and the law at that moment. Please get legal help.

We know it is hard to think about immigration court when you are already carrying a sentence. Take it one step at a time. Here are the answers to the questions people ask most.

Can I be put in deportation court while I am still in prison?

Yes. Federal law tells the government to start a removal case "as expeditiously as possible" after a person is convicted of a crime that makes them deportable. For some serious crimes, the law goes further. It tells the government to offer special removal hearings at certain federal, state and local prisons, and to start and, if possible, finish the case before the person's release.

This is usually called the Institutional Hearing Program (IHP). Legal groups say:

• Some prisons have it. Some do not.
• The government places some people in it, but not everyone.
• You cannot choose to opt out.
• If your case is not finished when your sentence ends, you may be moved to ICE detention to finish it.

A 2021 overview by the American Immigration Council reported that the IHP ran in federal prisons and in state and local facilities in 19 states, including California, as of 2019. That report is old, and no official list of current California sites is posted. To learn whether your prison holds these hearings, ask your counselor or the prison's records office, or ask a lawyer.

What does the hearing look like?

It is a real immigration court case, with an immigration judge, even though it happens inside. Federal law says these prison hearings must follow the same basic rules as other removal cases.

• Often by video. The law allows hearings by video conference. A 2021 report found more than half of federal IHP hearings in 2018 were by video.
• A government lawyer from ICE argues for deportation.
• The judge first decides if you are deportable, then whether you qualify for any way to stay.
• You can appeal a decision to the Board of Immigration Appeals. The deadline right now is 30 days. See How to appeal an immigration judge decision.

What are my rights in the hearing?

The same core rights as anyone in immigration court:

• The right to a lawyer of your choice, but at no cost to the government. The court will not appoint one for you in most cases.
• The right to see the government's evidence, to present your own evidence, and to question the government's witnesses.
• A complete record of the hearing.
• A list of free legal providers. The government must make a list of lawyers and groups who take cases for free.
• An interpreter if you need one. The court provides one. Say which language and dialect you speak at your first hearing (Immigration Court Practice Manual 4.15).

If ICE says you were admitted (for example, you have or had a green card), the government must prove you are deportable by clear and convincing evidence. It usually does this with court records of your conviction.

Do I have to talk to ICE while I am in prison?

No. In a California state prison, ICE interviews are voluntary. Before any ICE interview about immigration violations, CDCR must give you a written form that explains:

• What the interview is for
• That it is voluntary
• That you can say no, or agree only with your lawyer present

The form comes in English, Spanish, Chinese, Tagalog, Vietnamese and Korean.

CDCR must also give you a copy of any ICE hold, notification or transfer request about you, and tell you whether it plans to follow it. And CDCR may not keep you out of education, rehabilitation or credit earning programs only because of your immigration status or an ICE request.

Talk to your lawyer before you agree to any interview. Anything you say can be used in your immigration case.

Can I be deported before my sentence ends?

Usually not. Federal law says the government generally may not remove a person who is sentenced to prison until they are released from that prison sentence.

There are exceptions. For some people convicted of nonviolent offenses, federal or state officials can agree to early removal before the sentence ends. Probation, parole or supervised release is not a reason to delay removal.

What usually happens in practice: the case is decided while you are inside, and if you are ordered removed, ICE takes custody at your release date. The 90 day "removal period" in the law starts when you are released from confinement.

What could happen without any hearing at all?

Two things to watch for:

• Stipulated removal. You may be asked to sign an agreement to be deported without a full hearing. A signed stipulated order is final proof that you can be removed. Do not sign anything before a lawyer reads it.
• Administrative removal. For people who are not green card holders (or who have a two year conditional green card) and who have an "aggravated felony" conviction, the law lets ICE issue a removal order without an immigration judge. The person cannot ask for most forms of relief, and must get at least 14 days before removal to seek review in federal court. If you get this kind of notice, get it to a lawyer immediately.

If you were deported before and came back, an old order can be "reinstated" without a new hearing. See Can I reopen my deportation case?

Can I still fight my case from prison?

Yes. Depending on your facts, a lawyer may look at:

• Whether the charge is right. The government must prove the conviction fits the immigration law it named. Some California convictions do not fit the federal categories the way people expect.
• Fixing the conviction. California has ways to vacate or change some convictions for legal errors, including when your defense lawyer did not explain immigration effects. See Penal Code 1473.7 and Ways to fix an old California conviction.
• Relief from removal. Some green card holders can apply for cancellation of removal. Some people can apply for protection if they fear persecution or torture. See Can a green card holder be deported?
• A claim to U.S. citizenship. Some people became citizens through a parent without knowing it. See Did my child become a citizen when I did?

What if I missed an immigration hearing because I was locked up?

If you were ordered deported "in absentia" because you were in federal or state custody and it was not your fault that you missed court, the law lets you ask to reopen the case at any time. Filing that motion stops removal while the judge decides. See Can I reopen my deportation case?

How can my family help from outside?

• Find the case. With the person's A number, look it up on the EOIR case information site or call 800-898-7180.
• Find a lawyer. Call legal groups (below). Explain the person is in prison and give the release date.
• Gather papers. Court records of the conviction, sentence and plea; proof of years in the U.S.; birth certificates of U.S. citizen children; letters of support; certificates from programs finished inside. See Papers that show how long you have lived here and How to get a copy of your criminal record.
• Plan for release day. See Will ICE pick me up when I leave? and Make a family preparedness plan.
• Watch for scams. No one can guarantee a result. See Warning signs of an immigration scam.

Questions people ask

Will my immigration case make my prison time longer? Your criminal sentence comes from the criminal court. But if the case is not finished at release, you may be held by ICE after your release date.

Is my criminal defense lawyer also my immigration lawyer? Usually not. In California, defense lawyers must advise you about immigration effects of a plea. They usually do not handle the removal case. Ask them for referrals.

Can I get bond while in prison? Not while you are serving your sentence. After release to ICE, bond depends on your record. See How to get someone out of immigration detention on bond.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Community Legal Services in East Palo Alto (CLSEPA): 650-326-6440. Deportation defense for people with low income in San Mateo and Santa Clara counties.
• Catholic Charities San Francisco, immigration legal services (serves San Mateo County): (650) 285-6451.
• Asian Law Alliance (Santa Clara County): (408) 287-9710.
• EOIR pro bono list: List of Pro Bono Legal Service Providers. Bay Area providers appear under Concord Immigration Court.
• Your criminal defense lawyer or public defender, for post conviction options.
• More options: Free legal help in the Bay Area

Only an attorney or a DOJ accredited representative may give legal advice. You still have choices. Use the time you have now to prepare.

Is there a list I can print?