by Amy Hsu
Noncitizens, including Lawful Permanent Residents (“green card” holders) of the U.S., can be detained by the Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security (DHS) for a variety of reasons, including criminal offenses. When a noncitizen is arrested and processed by ICE, the arresting officer makes an initial custody determination. The noncitizen can be released on his own recognizance, released under a minimum bond of $1,500 (it could be higher), or detained without bond. If the noncitizen is detained without bond, or a high bond amount that the noncitizen’s family or friends are unable to pay, he or she can file for a new custody redetermination in front of an immigration judge.
If not subject to mandatory detention (see below), the immigration judge may still make the determination to hold the noncitizen without bond. The immigration judge can make a determination to keep the bond the same amount, lower the bond, raise the bond, or even take away the initial bond amount entirely and detain the noncitizen without bond, so the decision whether or not to apply for a custody redetermination must be carefully considered. The burden is on the noncitizen to establish that he or she is not a present danger to persons or property, is not a threat to the national security, and does not pose a flight risk.
Immigration bond hearings are evidentiary hearings. This cannot be emphasized enough. The Dallas Immigration Court has its own form, the Application for Redetermination of Custody status, available at the Dallas Immigration Court. This form should be submitted with as much documentary evidence attached as possible. If there are significant family ties to the U.S. such as a US citizen or permanent resident spouse, children, or parents, then the judge expects to see the marriage certificate, the birth certificates of the children, and affidavits from friends and family. These should be submitted to the court and government attorneys at least 3 days before the bond hearing, and ideally with the bond application. Witnesses should be prepared to testify at the bond hearing about the noncitizen’s ties to the community and rehabilitation after any criminal convictions. Pending criminal charges, a fixed address, and employment history are also factors to be considered, but ability to pay the bond is not a factor that most immigration judges consider. It may be necessary to submit a brief regarding eligibility for bond, and the discretionary factors, to the court in a case involving complicated immigration or criminal history.
Counsel for the noncitizen should also be prepared to discuss how he or she qualifies for relief from removal to be able stay here legally in the U.S. If the noncitizen does not have any relief from removal then he or she will be considered a flight risk and the chances of receiving a bond are very low.
The immigrant is only entitled to one bond hearing, unless circumstances materially change. It is possible, and in some circumstances advisable, to withdraw the bond application until such time as evidence and witnesses can be gathered. If a noncitizen has submitted just the application form on its own without any supporting evidence, it might be best to withdraw that application and then re-submit at a later date with documentary evidence and when witnesses are available to testify.
Bond hearings, or custody redetermination hearings, are separate from the actual immigration removal case, so it is possible for counsel to represent the noncitizen in only the bond hearing without representing the noncitizen in full removal proceedings and vice versa.
Not all noncitizens are eligible for a bond. Some noncitizens are subject to mandatory detention under Immigration and Nationality Act Section 236(c) on terrorist grounds, arriving aliens that are seeking entry and therefore have not been lawfully admitted to the U.S. yet, and those convicted of aggravated felonies, crimes involving moral turpitude, and drug crimes. In April of 2019, US Attorney General William Barr issued a ruling that adult asylum seekers who are transferred from expedited removal proceedings to full removal proceedings are mandatorily detained, unless they are paroled into the U.S. They would be detained even if they have passed their credible fear interviews, the threshold inquiry conducted by asylum officers to determine if the asylum seeker has a “credible fear” of being returned to their home country. This new policy becomes effective 90 days after the decision, or on July 15, 2019.
Amy Hsu is Of Counsel at the Patnaik Law Office and can be reached at email@example.com