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IMPORTANT LEGAL NOTICE: This article is provided by Pagán López Law for general educational and informational purposes only. It is not legal advice and should not be interpreted as legal advice regarding any individual’s immigration status, legal rights, eligibility for immigration benefits, removal proceedings, detention, asylum application, adjustment of status, or any other legal matter.
Every immigration matter depends on its own facts, applicable law, available evidence, and procedural history. Readers should not act or refrain from acting based upon information contained in this article without first obtaining legal advice from a qualified immigration attorney.
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Can ICE Arrest You If You Have a Pending Asylum or Green Card Case? What New Yorkers Should Know
Many people believe that once they file an immigration application with U.S. Citizenship and Immigration Services (USCIS), they cannot be arrested or detained by U.S. Immigration and Customs Enforcement (ICE).
That is a common misunderstanding.
Whether ICE may take enforcement action against a particular individual depends on numerous legal and factual circumstances. Simply having a pending immigration case does not automatically prevent immigration enforcement.
Understanding the difference between a pending immigration application and protection from enforcement may help individuals better understand how the immigration system works.
Does Having a Pending Immigration Case Prevent ICE From Taking Action?
Not necessarily.
A pending immigration application and immigration enforcement are separate legal matters.
Depending on the circumstances, a person may have a pending application before USCIS while also being subject to immigration enforcement under applicable federal law.
Whether ICE may take enforcement action depends on numerous factors, including the individual’s immigration history, the type of application filed, any prior immigration proceedings, applicable law, and other case-specific circumstances.
What Does “Pending” Mean?
Generally speaking, a case is considered pending when USCIS has received an application or petition and has not yet issued a final decision.
Examples may include:
- Adjustment of Status applications
- Asylum applications
- Employment Authorization applications
- Naturalization applications
- Family-based petitions
- Humanitarian applications
A pending application does not necessarily determine a person’s immigration status or prevent future immigration proceedings.
Is a Pending Asylum Case Different From a Pending Green Card Application?
Yes.
Different immigration applications operate under different provisions of federal immigration law.
For example, an affirmative asylum application and an adjustment of status application involve different legal requirements, eligibility standards, procedures, and potential outcomes.
Because these processes are different, the legal consequences associated with each case may also differ.
Can ICE Arrest Someone With a Pending Asylum Application?
In some circumstances, yes.
Filing an asylum application does not automatically create immunity from immigration enforcement.
Whether ICE may detain someone, initiate or continue removal proceedings, or take other enforcement action depends upon numerous legal and factual considerations.
The existence of a pending asylum application does not automatically determine whether immigration enforcement may occur.
Can ICE Arrest Someone With a Pending Green Card Application?
Potentially.
The filing of an adjustment of status application does not automatically prevent immigration enforcement.
Whether ICE may take action depends upon the individual’s circumstances, immigration history, eligibility for adjustment of status, prior proceedings, applicable federal law, and other relevant factors.
Each situation requires an individualized legal analysis.
Does a Pending Immigration Application Give Someone Lawful Immigration Status?
Not necessarily.
The legal significance of a pending application depends on the type of application and the individual’s immigration history.
Some applicants may have an independent lawful immigration status while a case is pending. Others may have permission to remain in the United States while a particular application is being processed without that pending application, by itself, creating lawful immigration status.
Because immigration categories operate differently, a person should not assume that a USCIS receipt notice automatically establishes lawful status or protection from immigration enforcement.
What Factors May Affect Immigration Enforcement?
Every immigration case is different.
Factors that may be relevant to immigration enforcement include:
- Immigration history
- Prior removal or deportation orders
- Previous entries into the United States
- Prior immigration violations
- Existing removal proceedings
- Criminal history, where applicable
- Outstanding warrants
- Current immigration applications
- Prior applications or petitions
- Identity, fraud, or misrepresentation issues
- Applicable federal law and agency procedures
- Other case-specific circumstances
No single factor automatically determines whether enforcement action may occur.
Can USCIS and ICE Share Information?
Federal immigration agencies may share information when authorized by law, regulation, government policy, or applicable information-sharing procedures.
Information submitted in an immigration application may include:
- Names and identifying information
- Addresses
- Immigration history
- Entry and departure information
- Family information
- Employment information
- Criminal-history disclosures where applicable
- Supporting documents
The existence of a pending immigration application does not necessarily prevent information from being accessed or used by other authorized government agencies.
The legal significance of information sharing depends on the circumstances and applicable law.
What Happens If Someone Is Detained While an Immigration Case Is Pending?
The answer depends on the type of immigration case and the individual’s circumstances.
In some situations, a pending application may continue while other immigration proceedings take place.
In other situations, detention, removal proceedings, jurisdictional questions, prior orders, or other legal issues may affect how a pending matter proceeds.
A pending application does not necessarily disappear simply because a person is detained, but detention may create additional procedural and legal issues that require case-specific analysis.
Can a Pending Case Be Referred to Immigration Court?
Depending on the type of application and applicable law, certain immigration matters may ultimately proceed before an Immigration Judge.
For example, in some circumstances, an asylum matter may be referred to immigration court if USCIS does not grant the application and the applicant is subject to removal proceedings.
Other applications may involve different jurisdictional and procedural rules.
Whether a particular case may be referred to immigration court depends on the type of filing, the individual’s status, procedural history, and applicable law.
Does Having a Work Permit Protect Someone From ICE?
Not necessarily.
An Employment Authorization Document may authorize employment during a particular period, but it does not automatically provide immunity from detention or removal proceedings.
The legal significance of employment authorization depends on the basis for which it was issued and the individual’s underlying immigration situation.
Does a USCIS Receipt Notice Protect Someone From ICE?
No general rule provides immunity from immigration enforcement merely because USCIS has issued a receipt notice.
A receipt notice generally confirms that USCIS received a filing. It does not, by itself, guarantee approval, lawful immigration status, or protection from enforcement.
Common Misunderstandings About Pending Immigration Cases
“If I Filed an Immigration Application, ICE Cannot Arrest Me.”
Not necessarily.
Having a pending immigration application does not automatically prevent immigration enforcement. Whether ICE may take enforcement action depends on the individual’s circumstances, applicable federal law, and numerous case-specific factors.
“A Pending Green Card Application Means I Am Fully Protected.”
Not necessarily.
A pending adjustment of status application and immigration enforcement are governed by different legal rules. Filing an application does not automatically prevent detention or removal proceedings.
“A Pending Asylum Application Guarantees That I Can Stay in the United States.”
No.
Every asylum application is evaluated individually. Eligibility depends upon applicable law, supporting evidence, credibility determinations, procedural history, and numerous other legal and factual considerations.
“A Work Permit Means ICE Cannot Detain Me.”
Not necessarily.
An Employment Authorization Document may authorize employment under certain circumstances, but it does not automatically provide immunity from immigration enforcement.
“USCIS and ICE Never Share Information.”
Not necessarily.
Federal agencies may share information where authorized by applicable law, regulation, or government policy.
“A USCIS Receipt Notice Means My Immigration Status Is Protected.”
No.
A receipt notice generally confirms that USCIS received an application. It does not, by itself, guarantee approval, lawful immigration status, or protection from immigration enforcement.
Frequently Asked Questions
Can ICE arrest someone with a pending asylum application?
Depending on the circumstances, yes. A pending asylum application does not automatically prevent ICE from taking enforcement action. Every case depends on its own facts and applicable federal law.
Can ICE arrest someone with a pending Green Card application?
Potentially. Filing an adjustment of status application does not automatically provide immunity from immigration enforcement. The legal analysis depends on the individual’s circumstances and applicable law.
Does filing an immigration application guarantee approval?
No.
Every immigration application must satisfy the applicable legal requirements and is evaluated based on the supporting evidence, eligibility requirements, and the facts of the individual case.
Does a pending immigration application automatically give someone lawful immigration status?
Not necessarily.
The legal significance of a pending application depends upon the type of application, the individual’s immigration history, and applicable law.
Can a pending immigration matter be referred to Immigration Court?
Depending on the circumstances, yes. Certain immigration matters may proceed before an Immigration Judge under applicable federal law.
Can ICE take action if someone has a valid work permit?
Potentially.
Employment authorization and immigration enforcement involve different legal issues. Whether enforcement action may occur depends upon the specific facts and applicable law.
Should someone with concerns about ICE speak with an attorney?
Generally, individuals with questions regarding their immigration history, pending applications, or possible immigration enforcement are encouraged to obtain legal advice from a qualified immigration attorney because only an attorney who reviews the specific facts can provide legal guidance tailored to a particular situation.
Final Thoughts
Many individuals mistakenly believe that filing an immigration application automatically protects them from immigration enforcement.
The immigration system is significantly more complex.
A pending asylum application, Green Card application, work permit application, or other immigration filing may create important procedural rights or consequences depending on applicable law, but it does not automatically provide immunity from ICE enforcement.
Whether immigration enforcement may occur depends upon numerous legal and factual considerations that vary from one individual to another.
Understanding these general legal principles may help individuals better understand the immigration process and ask informed questions regarding their own circumstances.
Generally, individuals with concerns regarding a pending immigration case, prior immigration proceedings, or possible ICE enforcement are encouraged to obtain individualized legal advice from a qualified immigration attorney before making important decisions.
CONFIDENTIALITY NOTICE
Please do not send confidential or sensitive information through this website, email, text message, WhatsApp, social media, blog comments, or online forms until Pagán López Law confirms that it is appropriate to do so.
Information submitted before an attorney-client relationship is established may not be treated as confidential or protected by the attorney-client privilege. Whether duties to a prospective client or other confidentiality obligations apply depends upon the specific facts and applicable law.
FREE INITIAL CONSULTATION
Pagán López Law offers a free initial consultation to provide general information regarding the immigration process and discuss whether the firm may be able to assist with a particular matter.
The consultation is intended solely as a preliminary discussion. Requesting or participating in a consultation does not, by itself, create an attorney-client relationship. An attorney-client relationship exists only if the firm expressly agrees to undertake the representation in accordance with applicable law.
No legal advice regarding any specific immigration matter is provided unless and until an attorney-client relationship has been established.
Prior results do not guarantee a similar outcome. Every immigration matter depends upon its own facts, evidence, procedural history, government action, and applicable law.
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Corona, NY 11368
Phone: (646) 216-8881
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