ICE Arrest With Criminal Record: Rights & Defense

Yes, you still have legal rights after an ICE arrest, even with a criminal record. A criminal conviction does not automatically result in deportation — immigration courts evaluate each case individually. You have the right to remain silent, the right to an attorney, and the right to a hearing before an immigration judge. Contact an immigration lawyer immediately.

Quick Answer

An ICE arrest with a criminal record does not mean deportation is inevitable. Under the Immigration and Nationality Act (INA), you are entitled to a hearing before an immigration judge who will determine whether you are removable and whether any forms of relief apply. Your criminal history affects the type of relief available, but it rarely eliminates all options entirely.

When This Applies: Who ICE Targets With a Criminal Record

ICE prioritizes individuals with certain criminal histories for enforcement. You are most likely to face deportation proceedings if you have:

• Aggravated felony convictions — defined under INA §101(a)(43), including drug trafficking, violent crimes, and fraud over $10,000
• Crimes involving moral turpitude (CIMT) — such as theft, fraud, or assault, especially if convicted within five years of admission
• Controlled substance violations — even a single drug possession offense can trigger deportability under INA §237(a)(2)(B)
• Domestic violence convictions — deportable under INA §237(a)(2)(E)
• Multiple criminal convictions — regardless of offense category, under INA §237(a)(2)(A)(ii)

Being in one of these categories means ICE can initiate removal proceedings, but it does not mean you will be deported without a hearing.

Your Rights After an ICE Arrest

Regardless of your criminal record or immigration status, you retain the following constitutional and statutory rights:

• Fifth Amendment right to remain silent — you are not required to answer questions about your immigration status or criminal history
• Right to an attorney — you may hire an immigration lawyer at your own expense; ICE is not required to provide one for free
• Right to a hearing — unless you are subject to expedited deportation (ускоренная депортация) under INA §235(b), you have the right to appear before an immigration judge
• Right to review the Notice to Appear (NTA) — ICE must provide a written document listing the charges against you
• Right to appeal — if an immigration judge issues an order of removal (приказ о депортации), you have 30 days to appeal to the Board of Immigration Appeals (BIA)
• Right to request a Stay of Removal — you may file Form I-246 to temporarily halt deportation while your case is pending; check the current filing fee on the official ICE website

Step-by-Step: How to Fight Deportation After an ICE Arrest

1. Invoke your right to silence — do not answer ICE officers' questions about your immigration history, country of origin, or criminal record. Politely state: "I am exercising my right to remain silent."
2. Request an attorney immediately — contact an immigration lawyer as soon as possible. Ilya Fishkin, immigration attorney has experience defending clients with criminal records in removal proceedings.
3. Review your Notice to Appear (NTA) — your attorney will examine the charges listed and identify procedural errors or invalid grounds for removal.
4. Identify available forms of relief — depending on your case, options may include cancellation of removal (отмена депортации) under INA §240A, withholding of removal (приостановление депортации) under INA §241(b)(3), asylum under INA §208, or Convention Against Torture (CAT) protection under 8 CFR §1208.16.
5. File a Motion to Reopen if needed — if a removal order was issued in your absence (in absentia), you have 90 days to file a Motion to Reopen with the immigration court under 8 CFR §1003.23.
6. Appeal an adverse decision — if the immigration judge rules against you, file an appeal with the BIA within 30 days of the order. Further appeals to the Federal Circuit Court are also possible.

What the Law Says

The primary legal framework governing deportation with a criminal record is found in the Immigration and Nationality Act (INA), particularly:

• INA §237 — lists criminal grounds of deportability for non-citizens already in the U.S.
• INA §240A — governs cancellation of removal for lawful permanent residents (LPRs) and certain non-LPRs
• INA §241(b)(3) — provides withholding of removal for individuals facing persecution or torture in their home country
• INA §101(a)(43) — defines "aggravated felony," the most serious category that significantly limits relief options

Aggravated felony convictions bar most forms of discretionary relief, but do not eliminate protection under the Convention Against Torture. Even with an aggravated felony, a qualified attorney may identify viable defenses. For the latest procedural updates and form instructions, consult the U.S. Department of Justice and official immigration court resources.

Immigration attorney Ilya Fishkin advises clients to prioritize legal representation at the earliest possible stage — well before the first immigration court hearing — to preserve all available options for relief.

This material is for informational purposes only and does not constitute legal advice