Bond Hearings Under Deportation Law
If you have been detained by ICE while your removal proceedings are pending, you may feel anxious about getting out of detention so that you can prepare for your case at home. You can request a bond hearing, at which a judge will determine whether you are eligible for release and set a bond amount if you are. As in criminal cases, bond is money paid as a guarantee that a person will show up in court at later hearings. The government will return the bond if the person shows up in court as required. If they fail to show up, they will lose the bond money, and they may be returned to detention.
Certain foreign nationals are subject to mandatory detention, which means that they cannot be released on bond. These include foreign nationals who were not lawfully admitted into the U.S., who have engaged in activities that threaten national security, or who are classified as arriving aliens. (That term usually refers to foreign nationals who are returning from a trip to another country.) Also, you will be subject to mandatory detention if you have committed certain types of crimes, which include many drug crimes, violent crimes, and theft crimes, and you were released from custody related to any of these crimes after October 10, 1998. Under a U.S. Supreme Court decision in 2019, foreign nationals who have been released after serving a criminal sentence can be subject to mandatory detention even if they were not taken directly from jail or prison into immigration custody. If the judge believes that mandatory detention applies to you, but you disagree, you can argue that mandatory detention does not apply at a “Joseph hearing.”
Going Through a Bond Hearing
A bond hearing is a relatively informal hearing that often happens on the same day as your first Master Calendar hearing. At the outset, the immigration judge will determine whether you are subject to mandatory detention. If you are not, they will review the evidence in the record to determine whether you are eligible for release. Immigration judges have substantial discretion in this matter. They will review the specific facts of each case, focusing on whether you would be likely to flee or pose a danger to public safety or national security.
You can present evidence to show that you do not pose a flight risk. This may include evidence of owning or renting a home, holding a job in the U.S., having close family members in the U.S., and having a strong argument that you are eligible for immigration relief. For example, you might submit copies of a marriage certificate, birth certificates of children, pay stubs from your employer, and letters from your employer and people in the community. You also might ask family members to attend the hearing to show the strength of your relationship with them. While they probably do not need to testify, their presence can help convince the judge of your ties to the U.S.
The judge may ask the foreign national follow-up questions about their family relationships, their job, or any criminal record. They will consider not only convictions but also arrests. If you believe that your record may pose an obstacle at a bond hearing, you can provide letters from family members and people in the community that explain how you have turned a new leaf after committing the crimes. In addition to showing your good moral character through these letters, you can submit certificates of completion from rehabilitation programs.
After the Bond Hearing
If the immigration judge determines that you are eligible for release, they will set a bond amount of at least $1,500. The bond may be considerably higher if the judge believes that you are a substantial flight risk or pose a major threat to public safety or national security. Sometimes the government attorney will ask the judge to raise the amount, or your attorney might ask the judge to lower the amount, but the judge has ultimate authority over the decision.
Once the bond amount has been set, the judge will issue a written order and reschedule your next Master Calendar hearing. This will give you up to 30 days to pay the bond so that you can be released from detention. If you cannot get the money, you will remain in custody until your next hearing. If you post the bond, on the other hand, you will be allowed to go home. The government attorney will ask the court to change the venue to the immigration court that is closest to your residence. Your removal proceedings will continue in an immigration court for non-detained foreign nationals.
