Immigration Law Attorney
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The information below is for education and marketing purposes only. In no way it is intended to provide legal advice or create a client-attorney relationship. Should you have a question regarding the content or your situation, please contact a lawyer.
The U.S. Immigration and Customs Enforcement (also known as ICE) has the authority under federal laws to detain certain immigrants and non-immigrants who are being charged, under investigation, or have been convicted of certain crimes in the U.S. A non-U.S. citizen individual could be attending a court hearing for a drug offense or domestic violence charge, upon the completion of that hearing, ICE officers could detain that individual at a public place. Once an individual is detained, he or she will be transported to a local ICE facility or prison.
ICE has the authority to determine whether the individual is eligible to be released from prison on bond while his/her case is pending. The initial determination of the bond was at the sole discretion of ICE. In certain types of terrorist activities, criminal charges, convictions, or investigations, detention is mandatory, meaning ICE cannot let that individual go until the case is resolved. Once the detention occurs, the deportation or removal proceedings at an immigration court are likely to ensue.
Immigrants and non-immigrants have rights to challenge their bond determination made by ICE through an immigration judge. It can be advantageous for the immigrant to be free while their cases are pending. They can reach out to the witnesses in their criminal case, gather certain documents and evidence to fight the criminal charge, and speak with their attorneys freely, and see their family members. If they do not fight the ICE’s denial of bond, they will be continuously detained at an ICE facility until their deportation/removal case is over – either being deported, voluntary departure, or free to go. In some cases, individuals can be transferred to different ICE facilities across the U.S. due to many reasons. In those cases, it could be very difficult for the individual to see their family members, sign important documents, or speak with their local attorneys.
If they decide to fight the initial bond determination, they will need to communicate that with an immigration judge. Generally, an immigration judge will order a hearing for the immigrant to present his arguments that he should be released from custody and the appropriate amount of bond should be set. Immigration judges have broad discretions in determining what factors to consider and how much each factor weights. The detained may present witness testimonies, documents, pictures, publications, and other forms of evidence to persuade that he/she should be released. In the previous cases determined by the Board of Immigration Appeals, one court, Matter of Guerra, 24 I&N Dec. 37 (BIA 2006) looked at the following factors:
whether the individual has a fixed addressed in the United States;
length of resident in United States;
family ties in the United States;
record of appearance in court;
history of immigration violations;
any attempts to flee prosecution; and
manners of entry of the United States.
Some courts in the past also consider whether the individual is a flight risk, and whether the individual poses a danger/harm/threat to the community, and whether the individual is likely to appear in the future court hearings. Some courts also consider the seriousness of current criminal charges or convictions. Immigration judges can consider different factors on a case-by-case basis.
Typically, in an immigration bond hearing, the lawyers for ICE will fight against the bond. The government lawyer will present evidence and arguments to the immigration judge as to why the individual should not be released and be held continuously in an ICE facility. They can present witnesses, documents, audio, video, and other forms of evidence showing why the individual should not be released. Because the hearing is for an immigration judge to determine whether ICE’s initial bond determination is correct and lawful, the burden of proof is on the shoulder of the detained individual. In the past, there have been cases where persons were being detained by ICE for a long period of time. In a recent case, Jennings V. Rodriguez, decided by the U.S. Supreme Court, the detained individual Alejandro Rodriguez, a Mexican citizen and a lawful permanent resident of the U.S. was detained since 2004. He was denied for temporary release on bond. After 3 years of detention, while still litigating his removal, he sued to be released and be given to periodic bond hearings during the course of his 3-year detention. The U.S. Supreme Court ruled that under §1225(b), 1226(a), and 1226(c) of the Title 8 of the U.S. Code, he is not entitled to periodic bond hearing and ICE can continue to detain him until his case is resolved in immigration court.