What is an immigration bond?
An immigration bond is an amount set by Immigration agents or an Immigration Judge that a person must pay before being released from immigration detention. The bond helps guarantee that the person released from detention will show up for all of his or her immigration court hearings, report to Immigration if asked to do so, and leave the United States if the Immigration Judge orders deportation at the end of the case. If the person bonded out fails to do these things, the bond money is forfeited and the government keeps it.
If a person is released on bond, can he or she stay permanently in the United States?
No. Release on bond means that the person gets out of immigration detention during the immigration case.
How does someone get into immigration detention?
Immigration agents arrest and detain people they believe are in the United States without proper documents, like a valid visa, or people they believe could be deported for some other reason.
Who can arrest non-citizens for suspected immigration violations?
A wide range of immigration officials have the power to arrest and detain non-citizens. Immigration officials can arrest a non-citizen without a warrant if they have "reason to believe that the alien ... is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest."
What happens after a non-citizen is arrested on a suspected immigration law violation?
Upon arrest for an alleged immigration law violation, a non-citizen should be examined "without unnecessary delay" by an immigration officer on his or her right to enter or remain in the United States. The officer examining the individual after arrest should not be the arresting officer unless another qualifying officer is not available and taking the person before another officer will cause unnecessary delay. If the examining officer finds prima facie evidence that the person arrested has violated the immigration laws, then the officer will place the non-citizen in removal proceedings or institute expedited removal, if applicable.
If ICE initiates removal proceedings, it should notify the non-citizen of the reasons for his or her arrest. The examining officer also should inform the non-citizen of the right to counsel at no expense to the government and provide a list of free legal service providers. The officer also should warn the person that any statement made "may be used against him or her in a subsequent proceeding." ICE may hold a non-citizen arrested without a warrant for 48 hours, or longer "in the event of emergency or other extraordinary circumstance." On or before the conclusion of this period, ICE must determine whether the individual will continue to be detained or released on bond or on his or her own recognizance. It also must decide whether to issue a Notice to Appear (NTA) and an arrest warrant.
Are the people in immigration detention serving time for a crime?
No. Immigration detention is not part of the criminal justice system. Immigration detention is for the immigration case, not for a criminal case.
Does everyone detained by Immigration get a bond?
No. If someone has already been ordered deported but never left the United States, he or she will not get a bond. That person already has a final order of deportation. If a person has certain criminal convictions, he or she also will usually not get a bond. If a person missed court hearings in the past, he or she also may not get a bond.
How does ICE determine who should be released and under what conditions?
The local ICE office makes the initial custody and bond determination. As long as the non-citizen is not subject to mandatory detention due to criminal or terrorist grounds specified in INA § 236(c)(1), 8 U.S.C. § 1226(c)(1), the arrested individual may be released on bond or on his or her own recognizance.
In order to be released, a non-citizen "must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding." The factors commonly considered in making the determination to release and/or set bond include:
1) Local family ties;
2) Prior arrests, convictions, appearances at hearings;
3) Membership in community organization;
4) Manner of entry and length of time in the United States;
5) Immoral acts or participation in subversive activities;
6) Financial ability to post bond.
What does an Immigration Agent or Judge consider in setting bond for a detainee?
Three findings are necessary: (1) the person must not be a danger to the community; (2) the person must not be a threat to national security; and (3) the person must not a flight risk.
Does an Immigration Judge require any proof before making these three findings?
Yes. An Immigration Judge will usually require letters or affidavits from family members with legal status, or from religious leaders in the community or other community members describing where the detainee will live, the kind of person he or she is, and whether he or she is likely to come to all the immigration court hearings. If a detainee has a medical problem, the judge will usually require a letter from a doctor. Witnesses can also testify in immigration court.
Can a person get a bond if he or she has a criminal conviction?
Rarely. Most criminal convictions automatically prevent a person from getting a bond even if the convictions happened a long time ago. A person with a minor criminal conviction may be able to get a bond, but only after an Immigration Judge specifically finds that he or she is not a danger to the community and will not harm others.
Who actually pays the bond money?
Anyone with legal status can pay the full amount of the bond at the offices of Immigration and Customs Enforcement. The person who pays the bond is known as the “obligor” and the obligor can get the money back at the end of the immigration case if the person released on bond goes to all of his or her hearings and either wins his or her case or leaves the United States if the Immigration Judge orders deportation.
What is the difference between criminal bail and immigration bond?
Immigration bond is for an immigration case and criminal bail is for a criminal case.
What happens if the person released on bond flees the area and misses his or her immigration court hearing?
The obligor loses the bond money and will not get it back. Immigration can arrest the person who flees and deport him or her if there is a final order of deportation.
What happens if the person released on bond wins his or her case?
The obligor asks Immigration for the bond money back by showing the original bond papers and the final order granting the relief from removal.
Can a non-citizen request the Immigration Court to redetermine custody and/or bond even though ICE has not filed a Notice to Appear with the Immigration Court?
Yes. An Immigration Judge can conduct a bond hearing even if ICE has not filed a Notice to Appear (NTA) with the Immigration Court. This is important because ICE may delay issuing the NTA, or may issue the NTA but then delay filing it with the Immigration Court.
How do bond proceedings differ from removal proceedings?
Bond proceedings are separate from, and not a part of, removal proceedings. Unlike removal proceedings, bond hearings are not usually recorded by the Immigration Judge. Also, the Immigration Judge can conduct a bond hearing even if ICE did not file a charging document. In a bond hearing, the non-citizen has the burden of proof and must show that she or he does not present a danger to persons or property, is not a threat to national security, and does not pose a risk of flight.
Furthermore, the Immigration Judge may consider "any information that is available to the Immigration Judge or that is presented to him or her by the alien or the Service." While the Immigration Judge may explain the reasons for his or her decision orally, the written decision often is cursory. For these reasons, notes of the bond hearing will be helpful later if there is an appeal of the Immigration Judge’s decision to the BIA.
Can a non-citizen appeal an Immigration Judge’s custody and/or bond redetermination?
Either the non-citizen or ICE may appeal the Immigration Judge''s custody and/or bond determination to the BIA within 30 days of the Immigration Judge''s decision.
If an Immigration Judge orders the release of a non-citizen or lowers the bond required for release, can ICE stay that order during an appeal to the BIA?
An Immigration Judge''s order authorizing release may be automatically stayed in any case where ICE had originally:
1) determined that the non-citizen should not be released; or
2) set a bond of $10,000 or more
In order for the automatic stay to kick in, however, ICE must file an EOIR-43 Notice of Service Intent to Appeal Custody Determination within one business day of the Immigration Judge''s order. Moreover, the automatic stay ends if ICE does not file a notice of appeal within ten business days of the Immigration Judge''s order. Several courts have found the automatic stay provision unconstitutional as applied in the cases before them.
Even if the Immigration Judge''s order is not automatically stayed, the BIA may stay the Immigration Judge''s order pending the outcome of ICE’s appeal, if ICE requests the Board to stay the Immigration Judge''s order when ICE appeals. ICE can request an emergency stay from the Board at any time.
Can a non-citizen ask for more than one custody and/or bond redetermination?
Once the Immigration Judge has rendered an initial custody and/or bond redetermination, a subsequent request for bond redetermination will only be considered if the non-citizen''s "circumstances have changed materially since the prior bond determination." Successive requests for custody and/or bond redeterminations must be submitted in writing.
An Immigration Judge can consider subsequent bond redeterminations even if a prior bond decision is on appeal to the Board. If the Immigration Judge grants the non-citizen’s request for a subsequent bond redetermination, the appeal of the prior decision will become moot, and the BIA will return the record to the Immigration Judge unless ICE notifies the Board in writing within 30 days that it wishes to pursue the original appeal. If the non-citizen appeals the subsequent bond redetermination, the Immigration Judge must forward the new decision and the record to the BIA with any other recent submissions.