DENVER (KDVR) Arrests by U.S. Immigration and Customs Enforcement are becoming more common in some areas. 

From January to September 2024, 1,748 migrants were arrested by ICE in the Denver region, according to the ICE Enforcement and Removal Operations statistics webpage. 

affiliate KDVR’s Carly Moore spoke to Professor P. (Deep) Gulasekaram, who teaches constitutional law and immigration law at the University of Colorado Boulder. 

Gulasekaram said about half of the people who are in the U.S. unlawfully entered the country legally and then overstayed their visas or their status expired.  

What happens to immigrants after they’re taken into ICE custody?

Once taken into custody by ICE, people who are in the U.S. unlawfully are given a notice to appear in immigration court. Depending on their charges, they may or may not be held in a detention center while they wait. Those with less severe charges are under routine monitoring by the Department of Homeland Security.

Then, there’s a master calendar hearing where the court sets a date for a removal hearing.

Gulasekaram said, right now, there is a backlog of cases in immigration court and it often takes a few years.

“As of November of last year, the backlog had reached a record high,” Gulasekaram said. “You’d be lucky to get a hearing within a year. It’s really several years into the future now that the incentives for waiting that out might change. If you’re in an incarceral facility, these are not fun places to be. They’re called immigration detention, but really it’s just prison. It’s run by the same companies that run state, local and federal prisons; the conditions are essentially exactly the same as being put in prison. So, while one might be waiting for their immigration adjudication, if they’re in one of these facilities, they might be incentivized to decide to deport themselves, or to agree to voluntary departure.”

He said the government’s own actions could create worse backlogs. So, if the number of cases increases, with a spike in arrests, the backlogs are likely to stay the same, if not longer.  

How does a deportation hearing work?

As far as the hearing goes, an immigration court hearing for deportation is purely an administrative hearing, it is not a criminal court. The rules of both evidence and burdens of proof are different. 

Also, protections, such as the Constitution, Bill of Rights and Supreme Court precedent, do not apply.   

Unlike a criminal hearing, a noncitizen defendant is not guaranteed a public defender. In immigration court, the only attorney you can have is one you can find and afford out of your own pocket.  

“Certainly, the immigration court has to comply with basic rules of fundamental fairness. There has to be a fair hearing, but lots of things that don’t fly in criminal court can happen in immigration court,” said Gulasekaram. “This leads to a significant difference in outcomes in criminal cases, the difference in outcome for a noncitizen who is represented by counsel in immigration court proceedings is exponentially better than instances in which they’re not, and the vast majority of noncitizens are not represented when they go to an immigration hearing.” 

He said there are resources where migrants can have law school students, professors or nonprofit organizations, like the Rocky Mountain Immigrant Advocates Network, who will represent them for free. 

“It is obviously a major cost for those lawyers if it was mandated that noncitizens get lawyers before they’re removed or before they go into immigration proceedings. But it’s also very convenient for the federal government, for DHS, for there not to be representation on the other side when they choose to prosecute,” Gulasekaram said.  

If a migrant has separate criminal charges, beyond the charges from DHS for entering the country illegally, that is an entirely separate hearing.

If a person is ordered to be removed, Gulasekaram said it also gets tricky because some countries will not take their nationals back. There has to be an agreement between the U.S. and that country.