If a person is detained by ICE, the first hours are critical: habeas corpus must be filed the same day or by the next morning after the arrest. We break down which documents to gather in advance and how the rapid-response strategy works to prevent the detainee from being transferred to another state.

Who Is at Risk of an ICE Arrest

People at heightened risk are those who applied for asylum and are still awaiting a decision after their interview. This applies not only to those awaiting the interview itself but also to those who have already had it. An arrest can happen at the most ordinary moment: while driving on the highway, on the way to work, in everyday life — even if the person has followed every law, entered the US on time, and broken no rules.

In the case described, the father of one applicant drove a truck, had his asylum interview with a strong basis for approval, but was detained despite having no criminal record and having followed every procedure.

Documents You Need to Prepare in Advance

If you are at risk and awaiting an asylum decision, gather everything needed for an emergency habeas corpus filing and bond documents in advance so they’re already with your family members.

You should have on hand:

  • All documents related to the asylum case, including Form I-589 and the post-interview recommendation (if already issued);
  • Photographs;
  • A copy of the passport or another ID document;
  • The A-number (immigration number).

Many people don’t even know their own A-number or those of their relatives, so write this information down and leave several copies. If everything is ready in advance, at the moment of arrest you won’t have to scramble to gather documents overnight — the attorney can start preparing the petition immediately.

Habeas Corpus: Speed Matters More Than Quality

Once a person has been detained, the main priority is the speed of filing the habeas corpus. This is not the moment to wait for the best lawyer in town or to polish the documents. Habeas corpus must be filed the same day as the arrest, or the next morning at the latest.

There’s an important procedural nuance: most federal courts close at 4:00 PM or 4:30 PM, depending on the state and city. If someone is arrested after that time, filing habeas corpus the same day becomes impossible. You then have to wait until the next day and file as early as possible in the morning.

Habeas corpus is filed together with an emergency motion so the court reviews the case within 24 hours instead of following the standard timeline. This motion explains the reasons for urgency: serious health issues, lack of English proficiency, dependents (including US citizens), or other circumstances requiring a fast review.

Strategy for Working in Federal Court

In addition to habeas corpus, if a person has already had their asylum interview and is awaiting a decision, a mandamus petition can be filed in parallel — a petition compelling the court to issue a ruling on the asylum case. This strategy works as follows:

Habeas corpus is filed in the court with jurisdiction over the place where the arrest occurred. Mandamus is filed in the court covering the person’s place of residence or where the asylum case is being handled. For example, if a person lives in Charlotte, North Carolina, but was detained in Florida, then habeas corpus is filed in Florida, while mandamus is filed in Charlotte or in the jurisdiction handling Charlotte’s cases (for example, in Arlington, Virginia).

This approach offers several advantages: the government ends up dealing with two courts and two jurisdictions at once. Prosecutors, instead of handling crime and violence, are forced to deal with lawsuits against the government. This diverts their resources and often leads them to ask their colleagues to at least release the person on bond or not transfer them to another detention facility. The strategy is to make things as inconvenient as possible for the system — because if a person is convenient, they can remain in detention for a long time.

Интерьер федерального суда США с залом судебного заседания

What to Include in the Motion

The emergency motion should include all the reasons for urgency:

  • Serious health issues, especially if the person is elderly or takes medication that may not be available in detention;
  • Lack of English proficiency, which creates barriers in communicating with the attorney and the court;
  • Dependents, including US citizens, who rely on the detained person;
  • The risk of transfer to another state, where conditions may be worse and judges may be less favorable (for example, some states are known for harsher rulings in immigration cases).

Your goal isn’t to win in federal court (which is very difficult), but to make things harder for the system by filing several simultaneous lawsuits and motions. When the government is forced to respond to emergency motions and mandamus petitions, the person has a better chance of being released on bond or avoiding transfer to less favorable detention conditions.