Bond Hearing, Eligibility and Procedures at the Immigration Court
Eligibility
Bond in the context of immigration law is the amount of money set by the Department of Homeland Security (DHS) or the Immigration Court as a condition to release a person from detention for an immigration court hearing later.
A foreign citizen (alien) who is detained by the U.S. Immigration and Customs Enforcement (ICE) can be either subject to mandatory detention or eligible to be released on bond. Whether a person is subject to mandatory detention or not depends on his or her past criminal records. If you are a foreign citizen who was released from jail after October 8, 1998 and convicted of one of the following offenses, you are subject to mandatory detention and are not eligible for bond:
- Two or more Crimes Involving Moral Turpitude (CIMT) following admission in the United States. CIMT is not defined by any regulation and there is no specific list of offenses that constitute CIMT. Case law defines CIMT as conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society.” In general, crimes involving elements of fraud or violence are the ones that are considered Crimes Involving Moral Turpitude;
- An aggravated felony – Murder, Rape, or Sexual Abuse of a Minor; Illicit Trafficking in Controlled Substance; Fraud or Deceit Offenses or Tax Evasion (over $10,000); Demand for or Receipt of Ransom are among aggravated felonies in the immigration context;
- A controlled substance offense with some exceptions;
- A firearms offense.
This rule regarding mandatory detention applies to those who are in the United States, including Lawful Permanent Residents (Green Card holders).
Somewhat different rules apply to Lawful Permanent Residents who are returning to the United States after a short trip abroad, persons who came to the U.S. without inspection, and to those who are seeking admission in the U.S. If you fall under one of these categories and were released from jail after October 8, 1998 and convicted of one of the following offenses, you are subject to mandatory detention and removable (deportable):
- One Crime Involving Moral Turpitude (with petty offence exception – not sentenced to a term of imprisonment in excess of six months and the offense must have a maximum possible sentence of one year);
- Controlled substance offense;
- Drug trafficking offense;
- Multiple convictions with aggregate sentences imposed of 5 years;
- Prostitution;
- Domestic violence or violation of a protective order.
Bond Hearing and Procedures
Bond can be initially set by Immigration and Customs Enforcement (ICE). If you pay a bond amount, you can be released immediately, provided you are not subject to mandatory detention as discussed above. If you cannot afford to pay the set amount, you can request the immigration court to hold a hearing to redetermine the amount of bond. This is referred to as a “bond hearing,” at which a judge will determine the amount of bond and whether you should be released on bond at all.
The factors the immigration judge will take into consideration during a bond hearing are whether you are a flight risk and whether you are danger to society. In this context, a “flight risk” involves a person’s willingness to appear at the next court hearings. If you have past criminal records, your chances of being released on bond will be significantly diminished. The judge will determine your case based on your personal character as well. Therefore, it is important to show the court as much evidence as possible of your good moral character and that you are a responsible person. Such evidence can include:
- Affidavits or statements from your coworkers, neighbors, and other community members, discussing your good character traits with specific examples;
- Marriage certificate;
- Your children’s birth certificates (if applicable);
- School records (if applicable);
- Tax returns; and
- Other relevant documents demonstrating your good moral character.
An immigration judge cannot set the amount of bond at less than $1,500, although the judge can release you without bond. The amount of bond is determined by the two factors discussed above, that is, whether you are a flight risk and whether you are danger to society. Another important factor that the judge will also consider is whether you are eligible for any immigration benefit, such as asylum, Cancellation of Removal or Adjustment of Status. If you cannot claim any immigration benefit, the likelihood of being released is small and if you are released the amount of bond can be high. In my practice, the largest bond amount I have seen set by an immigration judge has been $50,000.
If you think that the bond amount is unfairly high, you can appeal the judge’s decision to the Board of Immigration Appeals.
Bond can be paid by a cashier’s check by your relatives. If the amount of bond is high and you cannot afford it, you can use a bondsman who can post the bond for you, but in exchange for a certain commission.
Once you obtain your immigration benefit, which also includes Voluntary Departure, and comply with all of the immigration court’s orders, the bond amount will be returned to the original owner.
Please note that this article is educational only and its purpose is not to provide you with legal advice. Furthermore, immigration law is dynamic and it frequently changes. By the time you read this post, it may already be outdated.
Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (248) 630-3239. I accept clients from across the U.S. and around the world. My law office is conveniently located in Troy, Michigan for in-person meetings. For phone consultation, you can reach me from any part of the United States or abroad.
