Not all immigrants are eligible for release from detention, so it is important that you contact our lawyers to schedule a consultation. Depending on the person’s immigration status and/or criminal record, a person may be subject to mandatory detention. If the person is not eligible for an immigration bond, the person will have to fight removal from inside immigration detention. The Immigration and Nationality Act and federal regulations state the individuals must be taken into custody and hold the person without bond if the person has been convicted of certain removable offenses and released from jail after October 8, 1998. If the person was convicted but not sentenced to jail, this includes community service, probation, or a conditional discharge, the person may still be eligible for an immigration bond. Motivos de detención obligatoria para los residentes legales permanentes que regresan de un viaje al extranjero, las personas que hayan entrado sin inspección (IME), o de las personas que soliciten admisión en los Estados Unidos: Si una persona es un residente legal permanente que regresan de un viaje fuera de los Estados Unidos o si una persona entró sin inspección o admisión en los Estados Unidos, detención obligatoria puede ser necesario si la persona fue liberado de la cárcel tras 8 de octubre de 1998, y condenada por cualquiera de los siguientes delitos:
Grounds for Mandatory Detention of Lawful Permanent Residents in the United States, Persons Who Have Overstayed Their Visa, or Persons Who Have Been Lawfully Admitted into the United States: If a person is a permanent resident or if the person overstayed the period of authorized stay or were admitted into the United States in some manner, the person may be subject to mandatory detention if released from jail after October 8, 1998, and convicted of any of the following crimes
- Two Crimes Involving Moral Turpitude (CIMT) at any time after admission in the
- United States;
- An aggravated felony;
- A controlled substance offense;
- A Firearms offense.
Grounds for Mandatory Detention for Lawful Permanent Residents Returning From a Trip Abroad, Persons Who Entered Without Inspection (EWI), or Persons Seeking Admission into the United States: If a person is a lawful permanent resident returning from a trip outside the United States or if a person entered without inspection or is seeking admission into the United States, mandatory detention be may required if the person was released from jail after October 8, 1998, and convicted of any of the following crimes:
- One CIMT (which may be waived as a petty offense if no prior criminal history, the offense was not punishable by more than one year in jail and did not serve more than six months in jail);
- Controlled substance offense;
- Drug trafficking offense;
- Two or more offenses with aggregate sentence of 5 years incarceration;
- Domestic violence or violation of protection order.
Procedures for setting bond
If the person is not subject to mandatory detention and the person is not an arriving alien, then the person is eligible for an immigration bond.
Initial Bond Set ICE: If person is detained but eligible for an immigration bond, the government will set an initial bond amount. If the bond is posted, the person will be released. If bond cannot be paid because it is too high, a bond re-determination hearing can be requested from the immigration court
Bond Hearing: To set the amount of bond, the judge will look at two factors: (i) possibility of flight risk or somebody who would not come back to court if released, and (ii) the possibility of danger to the community. It is very important to present as much evidence as possible. Great examples that are taken into consideration include:
- Eligibility for Relief: If the person has no way to remain in the United States, the judge is likely to set a higher bond;
- Criminal History: Past conduct that indicates danger to the public;
- Relatives in Court: Presence of family members in court to show support;
- Letters of Support: Letters from relatives who cannot come to court, neighbors, friends, co-workers, and clergy that state that they know the person to be a good and reliable person. These letters should be notarized;
- Apartment Lease or Mortgage to show location where the person will live;
- Letters from Employers and Pay Stubs showing regular job or have a job offer;
- Marriage Certificate shows family ties to U.S. Citizen or Legal Permanent spouse
- Children’s Birth Certificates only if children are United States citizens or lawful permanent residents;
- Attendance in Rehabilitation Programs shows attempts at rehabilitation or successful rehabilitation,
- School Records including GED;
- Tax Records to indicate that tax laws have been satisfied.
Amount of the Bond
The immigration judge is not allowed to set a bond below $1,500 but can order release “on the person’s own recognizance.” This means the judge can let provide release without any bond. The bonds may be paid in cash or a bail bondsman can be used. The bondsman will post the bail on the person’s behalf, but will charge a non-refundable fee and will require a certain percentage of the immigration bond amount to be paid. If the family pays the bond directly to the government, the bond money will be returned to the family only when the court case is completed and only if the person complied with the court’s order, even if that order is to leave the country.
If the person disagrees with the judge’s determination of the bond request, the person may file a bond appeal with the Board of Immigration Appeals (BIA). When the judge decides the appeal, the judge will provide form known as a Notice of Appeal. The person must complete and file the Notice of Appeal with the BIA within 30 days of the judge’s decision. The BIA may take several months to decide the bond appeal and the immigration judge may order the person removed before a decision is rendered from the BIA. The person will be held in detention while the appeal is being decided. The Government may also appeal the judge’s decision if the government lawyer believes that the judge should not have set bond or set the bond too low. The government also has a limited time to file the appeal. If they do not file an appeal, the judge’s bond decision becomes final. Again, the immigration judge may decide to order the person deported before a decision is rendered from the BIA.