IMMIGRATION BOND
When an individual is detained by the Bureau of Immigration and Customs Enforcement (ICE) it may be possible for an immigration bond to be posted.
INA Section 236 authorizes the Attorney General (AG), at his discretion, to release foreign nationals that are in detention, while such persons currently have pending removal proceedings. There are two types of immigration bonds, the detention bond and the voluntary departure bond. Detention Bonds (formally known as “Delivery Bonds”) are a form of federal bond that are set for detainees held by the Bureau of Immigration and Customs Enforcement (ICE) pending a removal or deportation hearing for future court appearances. Voluntary Departure Bonds are immigration bonds provided for foreign nationals who were granted voluntary departure either during or after the removal proceedings. The foreign national deposits into the court the bond to ensure the departure within the discretionary 90 or 120 days voluntary departure period.
Immigration Bond Questions
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?
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 reconsider 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 short. 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 reconsideration, 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 by Motion.
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.
