Immigration Detention and Bond Proceedings

Detention by ICE

Courtney McDermed has extensive experience representing persons who have been detained by Immigration Customs and Enforcement (ICE). If ICE does not release a person or sets a bond that is too high, that person can request a bond hearing before an immigration judge. Moreover, someone detained by ICE does not have to wait for ICE to issue a charging document called a Notice to Appear (NTA) before requesting a bond hearing — a person can apply for a bond as soon as he or she is taken into custody.

The Right to Challenge Mandatory Detention

Unfortunately, Congress passed a law limiting some detainee’s right to request a bond. Depending on their immigration status and/or criminal history, certain persons may be subject to mandatory detention. Fortunately, a person has a right to challenge ICE’s allegation that a person is subject to mandatory detention, in a hearing known as a “Joseph Hearing.” If successful, an immigration judge will consider a person’s bond request and may release him or her from detention. However, if a person is subject to mandatory detention, then he or she must fight his or her immigration case from detention.

Bond Proceedings

Generally persons who are not “arriving aliens,” or terrorists are allowed to apply for a bond unless they have certain criminal convictions. People deemed to be “arriving” must submit their request for release directly to the Field Office Director of ICE because the immigration judge does not have jurisdiction or authority over custody determinations for “arriving aliens.”

In determining the amount of bond, the immigration judge usually looks at factors such as:
  • Community and family ties in the United States
  • Property ownership
  • Financial ability to pay a bond
  • Membership in community organizations and/or volunteer work
  • Employment history in the United States
  • Manner of entry to the United States and lawful status in the United States
  • Criminal history
  • Eligibility for relief from removal
Although bond hearings are separate from removal or deportation proceedings, bond hearings are often before the same immigration judge during immigration proceedings. It is important to note that if a person is released on bond, he or she must show up for all hearings before the immigration court or they will be ordered deported in absentia. No matter what the immigration judge decides in a bond case, and whether or not that decision is appealed, the immigration case continues.
The United States is a nation of laws: badly written and randomly enforced. -Frank Zappa