Family caregivers in the news

US immigration law and out of status family caregivers

There have been quite a few headlines about family caregivers recently. To be more specific, there have been headlines about family caregivers being detained by ICE.

At first I assumed journalists were highlighting people whose cases were particularly sympathetic. Parents of disabled children and devoted spouses to people who require ADL support are viewed as saints, so certainly they don’t deserve to be separated from their families and treated like criminals. If I was a journalist, I would also choose to cover the stories of people who are particularly relatable and deserving of community support.

It stood out to me that some of the articles mentioned that family caregivers were being taken into custody when they appeared for a check-in at an ICE office¹ or when they appeared in front of a judge at immigration court. As someone who has had an unusual amount of experience navigating immigration systems, this suggested to me that something specific was going on.

If you’re applying for residency in the US, you deal with United States Citizenship and Immigration Services (USCIS). If you’re leaving or entering the US, you deal with US Customs and Border Protection (CBP). As far as I know, you only deal with US Immigration and Customs Enforcement (ICE) if something has gone wrong and you’re under investigation or there’s a deportation case.²

Just like the National Parks have the United States Park Police and the NYC subway has the Metropolitan Transportation Authority Police Department, the Department of Homeland Security has several branches of law enforcement and ICE is one of them. Most people who immigrate to the US have no interaction with ICE, just like most people who hike in a national park have no idea that the park even has their own police force.

Are family caregivers somehow more likely to be involved with ICE?

This is how I learned about the Alternatives to Detention (ATD) program. Adults who are in ICE custody can apply for ATD if they serve as a family caregiver. They may also be eligible if their family relies on them for financial support, for medical reasons, and for humanitarian reasons. The beneficiary of their care and/or financial support must be a US citizen or greencard holder (aka permanent resident).

Participants are vetted, so they need to meet strict criteria to show that they have a clean criminal record (or are considered to have been reformed). Detention is mandatory for people with certain kinds of criminal histories.³ ICE notes:

“ATD-ISAP has been in place since 2004 and the number of participants has increased over time. Through the end of October 2024, approximately 7.6 million aliens were being overseen on ICE’s non-detained docket. Of those, more than 179,000 participated in the ATD-ISAP program.”⁴

That 7.6 million is a big increase from the 3 million people ICE was overseeing in 2019. Each one of those people must report to an ICE office at least once a year.⁵

I knew that there were millions of people living in the US without authorization, but I was surprised to realize how many of them were registered with ICE. The term ‘undocumented immigrant’ is misleading when so many of them are in the US with the knowledge and consent of the government, even if they technically lack authorization.

That’s a lot of people — 7.6 million! — living in the US who are currently facing the potential of being removed from the country. Part of the reason why the number of people living in the US under ICE supervision is growing⁶ is the amount of time people wait for court hearings:

“Because immigration judges must prioritize detained cases, ATD enrollees must often wait several years before their cases are heard”⁷

It’s important to remember that immigration violations are civil offenses, not criminal ones. Thus, people involved with immigration court are being detained not to punish them but to ensure they comply with the immigration legal system, including their potential removal. The vast majority of people in immigration detention face only civil immigration violations, such as entering the US without authorization or remaining in the US after their visa expired.

In the US, anyone suspected of being inadmissible⁸ or removable⁹ is detained by default and then:

• released,

• released on bond,¹⁰

• enrolled in ATD, or

• detained until their immigration case is resolved.

The type of supervision used in ATD is tailored to each participant. They use telephonic reporting (with voice recognition), body-worn Global Positioning System (GPS) monitoring, the SmartLINK facial recognition app, home visits by ICE agents, and, of course, in-person check-ins at ICE offices.

Disappointingly, but not surprisingly, statistics on the reason someone qualifies to participate in the ATD program aren’t publicly available, so we have no idea how many are enrolled because of their status as family caregivers.

Last year 9,739 parents of US citizens were arrested for suspected immigration violations and 6,458 of them were removed from the US. This doesn’t tell us much, since these numbers don’t indicate if the parent had custody of their US citizen child, if the child was a minor, if the child had a disability,¹¹ or even if the people being removed were the same ones being arrested that year. People can be eligible for ATD based on their providing essential care of any family member, not just their children.

I couldn’t find information about what would happen if someone in ATD were to stop being a caregiver. If someone was transferred into residential care, died, or otherwise no longer had the ATD participant as their primary caregiver, would that person then be detained?

People who are in ATD may be detained if they violate the terms of their participation. This could include missing a check-in, potentially because of tech issues or miscommunications. They will also be detained if they are charged with a crime (including for things like using weed, which remains illegal federally) or if agents suspect they will not appear at their removal hearing.

When someone goes before a judge at a removal hearing, the potential outcomes are much more complex than them being granted legal authorization to stay in the US or being deported:

• When the judge makes a determination at a removal hearing, they can decide someone is not removable. DHS may waive their right to appeal. If they don’t, they have 30 days to appeal the case.

• If someone involved with an immigration court case qualifies for adjustment of status (typically because they’re married to a US citizen or greencard holder) the judge will decide if they should be issued a waiver allowing them to proceed with their application for a greencard (handled by USCIS). They can grant or deny a waiver without making a ruling on their removal case. If the judge does not grant a waiver or their AOS application is denied, they may be deported.

• If someone is removable, the judge can still cancel the removal order and grant them permanent resident status (aka a greencard). This is often done if they’ve been in the US for at least 10 years and their deportation would provide extreme and exceptional hardship to a US citizen family member.

• People who are issued a removal order can still appeal their case or request to leave the country voluntarily.¹² If the judge approves a voluntary departure and the person does not leave within 120 days, it automatically becomes a removal order.

• A removal order becomes final 30 days after the window to file an appeal has ended or if the judge denies their appeal. Appeals may also be denied because of paperwork errors or issues with fees.¹³

• Once a final removal order has been issued, ICE may issue a “stay of removal” or “deferred action.”¹⁴ This grants people a work permit, but no pathway to a greencard or citizenship. They could still face removal in the future.

• Sometimes someone is removable, but they cannot return to their home country.¹⁵ If this situation is anticipated, the judge can grant a withholding of removal.¹⁶ If the challenge is not anticipated, ICE will detain them and attempt to deport them. After around six months of detention, they will generally release them from custody with an Order of Supervision (OSUP). With a withholding of removal or OSUP, they live in the community under ICE supervision. This is similar to ATD, only they have a valid order of removal that can be carried out whenever the logistical hurdles to their removal are resolved.

So, people who ‘lose’ their case at an immigration hearing may be given a greencard, put in legal limbo, remain under ICE supervision, or proceed to the removal process.

If ICE decides to carry out the final removal order, the person in question is given a date to go to an ICE office. If they don’t appear, ICE may locate them and arrest them. They may also be arrested if they’re flagged at a routine traffic stop or other interaction with any law enforcement agency.

It seems that family caregivers are more likely to have prolonged contact with ICE. Thanks to the government’s attempts to recognize the importance of family caregivers, ICE is more likely to delay their removal hearing, keeping them in the ATD program longer. At the hearing, they’re less likely to face removal and more likely to either be granted a greencard or put in legal limbo. If they are issued a removal order, ICE is less likely to carry it out. Thus, after years of ICE agents using their discretion to not remove family caregivers with deportation cases or orders, a disproportionate number of people in immigration limbo are family caregivers.

Or, at least they were. The current administration seems to be discouraging agents from using their personal discretion, instead requiring that all removal orders be carried out.¹⁷

We don't know how many people being deported were previously not pursued for deportation because of their roles as family caregivers. We won't have statistics on the outcome their deportation and removal will have on the US citizens they were providing essential care for. We also won’t have statistics on the number of family caregivers who are granted greencards in recognition of the essential care they provide. Instead, we just have glimpses of people’s lives through media reports.

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June 24th update: An ABC article led me to this USCIS memo from February, which states:

“USCIS will no longer exempt classes or categories of removable aliens from potential enforcement, which includes referring cases to ICE and issuance of NTAs.”

It seems that in cases where USCIS was processing application where there was an existing deportation case or order, there were certain protected categories¹⁸ where they only involved ICE if the application was denied. It seems that now USCIS is only using limited prosecutorial discretion in individual cases, so family caregivers could still be shielded from removal. This change impacts military families, a group which has a high number of family caregivers.

Archival photo of a boat docking at the Immigration Station at Ellis Island. Photo by The New York Public Library via UnSplash.

1. If you have an in-person ICE check-in, you can request that your check-in be conducted in a different format.

The National Immigration Project has a guide on how to request an online hearing: https://nipnlg.org/sites/default/files/2025-06/pro-se-web.pdf

There’s also a hotline staffed with volunteers from Agents of Change Civil Rights Advocacy Initiative, working with Orange Law Office and the National Immigration Project who can help request an online hearing: (888) 462-5211

2. It seems like ICE also supervises some people with pending asylum cases, since many asylum applicants are detained at the border.

3. https://www.congress.gov/crs-product/R45804

4. https://www.ice.gov/features/atd

5. https://www.congress.gov/crs-product/R45804

6. Importantly, ATD costs the government less than $4.20 a day, compared to around $152 per day for traditional detention.

7. https://www.congress.gov/crs-product/R45804

8. Non-US citizens may be inadmissible to the US for a number of reasons. Generally, people deemed inadmissible will be denied entry at the border or denied a visa. People who become inadmissible while in the US generally lose their status, ie their work permit is cancelled or their greencard is revoked.

“The general categories of inadmissibility include health, criminal activity, national security, public charge, lack of labor certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several miscellaneous categories. For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility” (Source PDF: https://www.uscis.gov/sites/default/files/document/foia/Inadmissibillity_and_Waivers.pdf)

For more information: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/waivers.html

9. People may be removable (or deportable) for such things as criminal convictions, if they’ve previously been removed or deported, if they don’t have valid status in the US (ie they entered at an unmarked crossing or their visa is expired), if they’ve falsely claimed to be a US citizen, or if they’re involved in terrorism. https://www.illinoislegalaid.org/legal-information/fighting-deportation-and-removal

Because most people are removed through the expedited process or reinstatement of previous removal orders, fewer than 20% of noncitizens removed from the US in 2020 went to immigration court. https://www.americanimmigrationcouncil.org/fact-sheet/removal-system-united-states-overview/

10. People who are released or released on bond aren’t included in that 7.6 million, suggesting there are a lot of people living in the US who are registered in the ICE database.

11. While it’s not stated that parents of non-disabled children are less likely to be enrolled in ATD, it does seem that they are more likely to be detained and removed. https://www.womensrefugeecommission.org/research-resources/what-to-do-if-you-are-detained-essential-steps-for-migrant-parents-for-preventing-family-separation/

12. Voluntary departure is different from ‘self-deportation.’ Self-deportation is leaving the US before having any interaction with ICE. Voluntary departure is a formal process for people involved with ICE.

13. Credit card payments are frequently declined because they are flagged as suspicious by banks. Bank cheques must be made in the exact amount, under- and overpayments will be rejected.

14. You might recognize this term from Deferred Action for Childhood Arrivals (DACA) and the DREAM Act.

15. This is for people who can’t return home for logistical reasons, who don’t qualify for asylum. The home country may choose not to confirm their identity, not issue travel documents, or not accept their return https://www.congress.gov/crs-product/R45804

16. “A person with Withholding of Removal, on the other hand, has technically been ordered deported, but the deportation is “withheld” vis-à-vis the country of feared persecution. This means that the person cannot be deported to that country, but she could (theoretically) be deported to a third country. A person with Withholding of Removal is eligible for an employment authorization document (“EAD”), which must be renewed each year. However, unlike with asylum, she cannot leave the U.S. and return, she is not eligible to become a resident or citizen, and she cannot petition for family members. In addition, on occasion, ICE (Immigration and Customs Enforcement) attempts to deport the person to a third country.”

This is often used if someone doesn’t qualify for asylum because of a prior criminal conviction, if they previously settled in a safe third country, or if they did not apply for asylum within the one-year window. https://www.asylumist.com/2015/12/10/i-hate-withholding-of-removal-heres-why/

17. It seems possible under existing laws for ICE to reverse course and expedite removal hearings for family caregivers, in order to minimize the amount of time they spend in detention or under ICE supervision. They could then be granted greencards at their removal hearings.

18. People enrolled in DACA remain protected as a category.