Arrest, Detention and Bond Hearings
There are four main ways that an individual may be detained by agents of ICE, Immigrations and Customs Enforcement.
- Immigration Applications- Most if not all immigration applications result in Biometrics appointments and security clearances. This would include citizenship applications, replacement green cards, employment cards and certainly adjustment of status. If CIS receives information that you have either a conviction making you removable from the United States or perhaps a previous immigration violation you may be detained by ICE.
- Airport Travel- Upon re-entering the United States all non-citizens are inspected upon re-entry. The computer database used by Department of Homeland Security has access to criminal arrests and prior orders of deportation. You may be detained upon you re-entry to the United States.
- Criminal Arrests- If you are arrested on a criminal matter, you may be asked about your immigration status. You may be interviewed by a DHS officer and a detainer lodged against you to prevent your release after you complete any jail time. Detainers are discussed below. Even if you are released from jail. You may eventually meet with a DHS representative as a result of your probation process at which time you could be taken into custody if the criminal conviction subjects you to removal.
- Interior Enforcement Efforts- There are efforts underway to identify immigration law violators and remove them from the United States . This can be anything from a workplace raid or an investigation based upon leads obtained by ICE as to the whereabouts of certain individuals especially those who have failed to depart after a removal order.
As soon as someone is detained by ICE, consult a qualified immigration attorney to discuss bond eligibility issues and whether your relative will have relief from removal.
DETAINERS: 8 C.F.R. 236.1(a),(b). Any authorized Service official may at any time issue an immigration detainer, to any other Federal, State, or local law enforcement agency. If a detainer is issued and you pay a criminal bond, if applicable, you will then be turned over to the custody of DHS.
A detainer serves to advise another law enforcement agency that the Service seeks custody of you, for the purpose of arresting and removing you from the United States . The detainer is a request that such agency advise DHS, prior to release of you, in order for DHS to arrange to assume custody. You may remain in jail for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Service. If you are held for more than 48 hours your criminal attorney may want to file a writ of habeas corpus. Filing of this action may result in ICE lifting the detainer, if circumstances are appropriate or assuming your custody.
Not everyone is eligible for release from DHS custody. ICE may issue you a bond if you are eligible. However sometimes the law requires that you be held without bond depending on your immigration status and your immigration record. If you are not eligible for bond you will have to fight your removal, if you intend to do so, from a DHS detention facility.
MANDATORY DETENTION: Pursuant to INA § 236(c) DHS must take into custody and detain certain foreign nationals who are either inadmissible under 212(a)(2) for various criminal and related grounds or who are deportable under 237(a)(2)(A)(ii) for certain criminal convictions.
Foreign nationals detained pursuant to the mandatory detention provisions may be released only if Attorney General decides that release is necessary to provide protection for a governmental witness, potential witness, person cooperating in an investigation into major criminal activity and the alien establishes that they do not pose a danger and are likely to appear at future hearings.
Issues relating to mandatory detention had been challenged in federal courts, to the extent permitted. The United States Supreme Court has held that mandatory detention prior to a final order of removal is constitutional.
DISCRETIONARY DETENTION: INA § 236(a)(2)(A)(B): allows DHS to release an alien on bond of at least $1,500.00 and other conditions or conditional parole but may not grant work authorization. Immigration Courts are authorized to review such decisions. This means your bond will be a minimum of $1500.00.
If you are detained but eligible for bond, ICE will set an initial bond amount or release you on your own recognizance. If ICE refuses to set a bond or you cannot afford the bond, the Immigration Judge will eventually be required to make a decision regarding your release. If a bond is issued, the bond is not like a criminal bond. You must pay 100% of the bond amount. Bonds are paid at the DHS office. You will have to provide identification when the bond is paid. Retain the original receipts for bond payments. They will be required at a later date to obtain a refund of the bond, if eligible. If the subject of the bond fails to appear for any scheduled hearings the bond will be breached and you will lose the entire amount posted.
BOND HEARINGS:
Regarding issues of detention, the immigration courts have the authority to review detention decisions of DHS, even in instances where no charging document has been issued. All hearings related to custody determinations and bond are separate and apart from the record made in connection with the actual removal hearing, such hearings are not contained within the record of the case. Subsequent requests for bond or bond re-determination must be made in writing and will only be considered upon a showing of a material change in circumstances.
For purposes of bond, the Immigration Judge will look at the favorable and negative factors to determine “danger to the community” if released, as well as, the alien's “flight risk” based upon availability of relief from removal. You should be prepared to provide evidence of equities in the United States .
If you disagree with the Judge's determination there is a possibility to file an appeal from such a decision. You will continue to be held in detention while the appeal is pending and your removal case will continue.
Your friends and family members should have as much information about you as possible to provide to your attorney. They should have full name, date of birth, information regarding equities such as relatives with legal immigration status, employment history, tax returns, marriage and birth certificates and most important dispositions of any criminal matters.
Friends and family should consult an immigration attorney for non-citizens immediately upon any criminal arrest to determine immigration consequences of any charges. Once in DHS custody an attorney will be able to tell you issues such as bond eligibility and possible forms of relief from removal.
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