Immigration law has very specific rules governing when a person can be held in immigration custody. The rule that applies to you will depend on specific factors in your case, including: whether you are subject to removal based on certain crimes or acts, whether you have already received a final order of removal, and whether the government can in fact remove you to another country. The rules may also vary depending on how the federal courts have interpreted the immigration laws in the state where you live.
As a general rule, if you are in immigration custody, you will be eligible for release if the immigration authorities determine that (1) you are not a “flight-risk” (meaning that the immigration authorities believe that you would appear when requested for future immigration appointments and hearings) and (2) you are not a “danger to the community.” In such cases, you may be eligible for release on your own recognizance, on a reasonable bond, or on a supervision program (which may include an ankle bracelet, telephonic monitoring, and/or regular check-in appointments at your local office of Immigration and Customs Enforcement ("ICE")).
However, in many situations, you may not be eligible for release. For example, you may be subject to mandatory custody if you have been arrested or convicted of certain types of offenses or if you already have a removal order against you. If you fall within one of the categories warranting mandatory custody, then it does not matter if you are not a flight risk or a danger to the community. The Department of Homeland Security (DHS) can keep you in custody while you are fighting your immigration case in court or while it tries to arrange for your removal from the United States.
If you are being held in immigration custody but believe that you are eligible for release, you need to first ask the DHS to release you. If the DHS does not agree to release you, or sets unreasonable conditions for your release (such as a bond that is too high for you to pay), you may be entitled to ask for a bond hearing before an Immigration Judge and contest the DHS’s bond decision. It is entirely possible, however, that you will not be entitled to a hearing.
Significantly, whether you are subject to mandatory custody may change over the course of your case. You may also ask the DHS and the Immigration Judge to reconsider your custody status if circumstances change during the course of your case or if your detention becomes unduly prolonged.
If you are in immigration custody, it is best to consult with an immigration attorney to advise you whether you are eligible for release on bond and to assist you in making the legal and factual arguments for your release.
We emphasize that the advice in this article is general advice. If you, or someone you know, is in removal proceedings, you should consult an attorney immediately about your specific case.
Removal is the process by which the US Government orders an alien to be removed from the United States. If removed, the alien is usually barred from re-entering the United States. Most often it is for a period of 10 years. Sometimes it can be for life.
The first step in the removal process is for the alien to be "detained" - placed in custody with Immigration and Customs Enforcement (ICE). There are many ICE facilities in the US, and the alien will be detained at the facility closest to where they are taken into custody. Sometimes, the ICE facilities are separate facilities run by private companies. The most common are CCA and GEO. Detention is not conventional prison, but some ICE facilities are on the same premises as US prisons. The immigration "detainees" are held in separate sections from US prisoners, however.
Often, aliens are held after being arrested for a non-immigration related crime. A hold will be placed until the immigrant is transferred into ICE custody.
While in detention, a formal removal proceeding will usually be initiated by the US government. The timeline can vary but usually a case is filed (aka started) after 2 weeks. Sometimes it can be several weeks or even up to 90 days.
If the alien is detained entering the US, the removal proceeding is almost always entirely with the Department of Homeland Security (DHS). The DHS has "exclusive jurisdiction" over arriving aliens, and the Immigration Court does not interfere with the decisions of the DHS.
An arriving alien does not have a right to bond - to be released while in proceedings. In some cases, the DHS may offer "parole" or permission to enter the US for a short time while the DHS makes its own decisions on removal.
An alien should consult with an attorney immediately if classified as an arriving alien because the proceedings with the DHS are "summary proceedings" - decided very quickly, and usually with the DHS ordering removal and placing the alien on a bus or plane out of the country.
If an alien is detained inside the US - not at the border - then the removal proceedings are usually held in a US Immigration Court.
The case will be held in the Court closest to where the alien is taken into custody and detained. If an alien is released on bond, the case can be transferred to somewhere else in the country.
If removal proceedings are held in an Immigration Court, an alien may be eligible for bond - able to be released from ICE custody while the removal case is pending and eventually tried or resolved. A removal proceeding can be a long process, sometimes years, so if bond is available, it should be pursued.
An immigration bond is money paid as surety that an alien under removal proceedings by the US government will appear at all proceedings relating to him. Put simply: it is insurance that, if released from custody, an alien will not disappear while his case is pending. It is similar to the way bail works in a criminal case.
The amount of the bond is discretionary and depends on many factors such as the alien's ties to the community, the reasons for removal, and his family's ability to pay, and whether he has a likely chance of winning the removal case.
The minimum bond is usually $1500.00. The maximum can be many thousands of dollars. The DHS will often set the amount of the bond. An alien (or his family or friends) can post it or ask for it to be lowered by an Immigration Judge. It is important to consult with an attorney about this, since obtaining a lower bond requires a hearing and evidence in support of the request.
Eligibility for Bond - Mandatory Detention
In some instances, an alien is NOT eligible for bond. Section 236c of the Immigration and Nationality Act sets forth several instances when an alien is subject to mandatory detention while in removal proceedings. Among them include: aggravated felonies, suspected terrorism, crimes of moral turpitude and possession of controlled substances (except marijuana less than 30 grams).
If an alien is subject to mandatory detention, you need to consult an immigration attorney with experience in criminal law.
If an alien is not subject to mandatory detention, you need to consult an immigration attorney about seeking a bond hearing to obtain a bond or lower a bond if possible.
Once bond is set, the alien remains in custody while his family or friends post the bond. This can be through a bonding company or directly with ICE / DHS.
A bonding company will usually charge a premium of 15% of the bond. They will also require full collateral for the remainder. That will be returned to you at the conclusion of the proceedings. The bonding company will post the bond.
If posting bond directly with the government, one needs a money order or certified check in the full amount. It can be posted at any DHS office.
When posted, it will take 1-5 days for the bond to be processed. The one posting the bond is usually subject to a background check. There usually must be a US citizen or LPR who is willing to come forward to the DHS and provide evidence of their citizenship and where they currently live and where the alien will be living while out on bond.
Again, if you or someone you know is in removal proceedings and in need of an immigration bond, you should consult with an attorney about your case.