Immigration Detention and the Right to a Bond Determination

By Attorneys Nancy E. Miller and Eric R. Welsh

United States immigration laws authorize agents of U.S. Immigration & Customs Enforcement (“ICE”) to arrest and detain any person believed to be removable from the United States.  This can occur during an attempted entry at the border, at a traffic stop, during a workplace raid, after an arrest for a crime, or at any time that ICE believes that custodial detention is appropriate.  Immigration arrest and detention can be frightening, depressing, and frustrating, and the arrested individual may feel powerless and without recourse.  As such, it is vitally important that a noncitizen subject to immigration detention is familiar with her rights.

 Importantly, a detained noncitizen may have a right to bond.  A person who “posts bond” is released from detention upon payment of a certain amount of money that is held in trust until removal proceedings in court are completed.  In general, a detained noncitizen has a right to an initial bond determination by ICE.  If ICE denies bond (or sets the bond amount unreasonably high), the detainee can request that an immigration judge review and re-determine the bond request.  If the detainee is eligible for release, and the judge is satisfied that the detainee is not a flight risk, the judge may order release upon payment of a reasonable bond.  In some cases, ICE or the judge can release a detainee on her own recognizance without posting bond.  

 The courts tend to favor bond in the case of lengthy detentions.  Last April, the U.S. Court of Appeals for the Ninth Circuit held that noncitizens who have experienced prolonged detention have a right to a bond hearing to determine whether or not detention should continue.  In early August, a U.S. District Court found in favor of detainees in the Los Angeles area, ruling that detainees who are actively fighting a removal case in court must be given a bond hearing after six months of detention.  The District Judge found that such bond hearings must occur automatically, without need for the detainee to specifically request a hearing. 

Issues often arise in bond matters regarding “mandatory detention.”  ICE has the authority to detain a person without bond if the person is inadmissible to or deportable from the U.S. on account of certain criminal acts, or if the person poses a terrorist threat.  In many cases, ICE will make an initial determination to deny bond based on a cursory review of a person’s criminal history without careful consideration of the immigration consequences of a given criminal conviction.  For example, a person convicted of “burglary” in California is not necessarily inadmissible or deportable, although ICE will often detain a noncitizen with a burglary conviction on her record.  In such a case, an immigration judge could make a proper determination that the person is not subject to mandatory detention, and can order release upon payment of a reasonable bond.

In addition to “mandatory detention,” certain noncitizens may not be eligible for bond based on their manner of entry or prior immigration history.  For example, persons who enter the United States under the Visa Waiver Program (VWP) are not eligible for bond, if that person is detained after overstaying the 90-day VWP period.  In addition, persons who are detained based on a warrant for removal based on a prior removal order, and persons with a prior removal order that is reinstituted after unlawful entry to the United States, are generally not eligible for bond.  Even so, such persons who are subject to prolonged detention (more than six months) may still have an opportunity to seek a bond hearing.  
 When bond is an option, the immigration judge will set a bond amount that is reasonable under the circumstances, considering a variety of factors.  These factors include: criminal history (if any), risk of flight, family ties and other equities, and ability to pay.  A showing of strong equities (e.g., hardships to family members in the U.S.) is important to convince a judge that bond is appropriate as a matter of discretion, and in order to request a bond amount not is not excessively high.  

 Any person who is detained by immigration should immediately consult with a knowledgeable and experienced immigration attorney to explore options for release, and to assist with making a motion for a reasonable bond determination.