One of the most common consultation topics in our office is whether a recently detained person is eligible for a bond.
The typical scenario involves an immigrant who has committed a crime, is now in immigration custody, and their family wants to get them released.
Although this post is not intended to cover every bond scenario (some of which aren’t entirely settled), there are several important rules and a few guiding principles that arise in every bond case.
Mandatory Custody
Some criminal convictions trigger grounds of removability, and some grounds of removability require detention until the case is over.
INA 236(c) says the government must detain anyone who has been convicted of certain crimes or terrorism. In addition, the BIA requires a person to prove that (1) they are not a threat to national security; they are not a danger to property or persons; and (3) they are likely to appear for any future proceedings. Matter of Guerra, 24 &N Dec. 37, 38 (B A 2006); Matter of Adeniji, 22l&N Dec. 1102, 112-13 (BIA 1999).
If the detained person has a serious conviction or can’t meet the requirements of Matter of Guerra, then she probably can’t get a bond.
Even if that is the case, I say “probably,” because there are a number of important exceptions relating to whether and when the person was previously taken into custody for a criminal offense and whether they are a witness that needs protection.
Significant Discretionary Factors
Even if the detained person is eligible, the judge is going to consider these significant factors related to decide whether they receive a bond:
- Do they have a fixed address in the United States? Matter of Patel, 15 &N Dec. 666, 667 (B A 1979).
- Do they have a lengthy residence in the United States? Matter of Shaw, 17 &N Dec. 177, 178-79 (B A 1979).
- What was their Method of entry? Matter of San Martin, 15 &N Dec. 167, 169 (B A 1967).
- Do they have Family ties in the United States, particularly those who can confer immigration benefits on them? Matter of Shaw, 17 &N Dec. 177, 178 (B A 1979); Matter of Patel, 15I&N Dec. 666, 667 (B A 1979).
- Do they have an Employment history in the United States, including length and stability. Matter of Shaw, 17 I&N Dec. 177, 178 (B A 1979); Matter of Patel, 15 &N Dec. 666, 667 (BIA 1979).
- What is their immigration record like? Matter of Shaw, 17 &N Dec. 177, 178 (B A 1979); Matter of San Martin, 15 &N Dec. 167, 169 (BIA 1974).
- Have they ever attempted to escape from authorities or other flight to avoid prosecution? Matter of Patel, 15 I&N Dec. 666, 667 (B A 1979); Matter of San Martin, 15 &N Dec. 167, 168-69 (B A 1967).
- Have they ever failed to appear for scheduled court proceedings. Matter of Shaw, 17 &N Dec. 177, 179 (B A 1979).
- Do they have a criminal record, including extensiveness and recency, indicating consistent disrespect for the law and ineligibility for relief from deportation/removal. Matter of Andrade, 19 &N Dec. 488, 490-91 (B A 1987)
- Early release from prison, parole, or low bond in related criminal proceedings (this is less significant). Matter of Andrade, 19 &N Dec. 488, 490 (BIA 1987).
Important things to remember:
- The judge should not make the person prove they are able to pay a bond.
- DHS difficulties in executing a final order of deportation are not a proper consideration for an immigration judge in redetermining bond. Matter of P-C-M-, 20l&N Dec. 432, 434 (BIA 1991).
If you know someone detained in immigration custody who needs help securing a bond, we would be glad to discuss their eligibility with you.