ICE apprehensions are on the rise since the start of 2017. With Texas SB 4 set to go into effect on September 1, 2017, we anticipate a further surge of ICE apprehensions. If your loved one is detained, speak to an immigration attorney before they agree to voluntary departure.
Assuming the detainee is not subject to mandatory detention or is not an arriving alien then an immigration attorney may move the Immigration Court to set a bond re-determination hearing. Normally, a request is made when ICE has not set bond or when the detainee cannot afford the bond initially set by ICE.
Section 236(a) of the Immigration and Nationality Act (“INA”) gives the Attorney General the discretion to grant bond to aliens in removal proceedings as an exercise of discretion. Further, the Attorney General’s authority to grant bond is delegated to Immigration Judges and the Board of Immigration Appeals (“BIA”).
Across all jurisdictions, Immigration Judges look at several factors to determine the amount of bond or decide if the detainee merits a bond:
1. First, is the detainee likely to abscond or otherwise a poor bail risk.
2. Secondly, is your client a threat to national security or danger to the community?
The BIA has held that in order to be granted bond, an alien must establish that he or she “does not pose a danger to persons or property and is not a flight risk.”
The burden is on the detainee to show that he or she merits release on bond. It is our responsibility (immigration attorneys), along with the detainee’s family, to gather and present ample evidence to prove that the detainee merits bond, such as:
(1) proof of the alien’s fixed address in the United States,
(2) alien’s length of residence in the United States;
(3) alien’s family ties;
(4) alien’s employment history;
(5) alien’s record of appearance in court (or evidence to demonstrate detainee has relief);
(6) alien’s criminal record, extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses (or lack thereof with police clearance letters);
(7) alien’s history of immigration violations if any and how they were resolved; and
(8) alien’s manner of entry to the United States.
One must include credible and compelling evidence to demonstrate the detainee is not a danger to the community, and to convince the immigration judge that the detainee is likely to return to immigration court for all future hearings set. The stronger and more plentiful the evidence presented, the more likely the Immigration Judge will set bond or decrease the bond previously set by ICE.
While the detainee and family members are inclined to file a bond request the same or next day after they retain our legal representation, it is imperative that we submit ample supporting evidence to best position the detainee to receive a bond (and an affordable bond at that!).
Written by: Liset Lefebvre
1 8 C.F.R. 236.1(c)(8) (1999).
2 Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
3 Id. at 40; Matter of Patel, 15 I&N Dec. 666 (BIA 1976).
4 Matter of Fatahi, 26 I&N Dec. 791 (BIA 2016).
5 Matter of Adeniji, 22 I&N Dec. 1101 (BIA 1999); see also, Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010).
6 Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
7 Id. at 40; see also, Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000); Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).