By Attorneys Robert L. Reeves and Myra V. Azucena
Immigration officials are now more likely to detain non-citizens including Legal Permanent Residents subject to removal. Individuals are subject to removal if they have a prior criminal conviction or have an outstanding order of deportation. Many people are unaware that they have a final order of deportation and only find out when they are taken into custody. The Department of Homeland Security has been arresting and detaining a large number of individuals under the following circumstances:
1. Port of Entry: Non-citizens, including Legal Permanent Residents, traveling back into the United States are screened by the Department of Homeland Security (DHS). People who have certain prior criminal convictions are inadmissible to the United States. Even if a criminal conviction occurred many years ago, records of these convictions may show in their computer system.
2. Affirmative Immigration Applications: Applications made to the United States Citizenship and Immigration Services require background checks on all applicants. These applications include Adjustment of Status, renewal of work authorization, and citizenship, etc. If the applicant has any criminal convictions which would make him removable, the applicant may be detained.
3. Jail or Prison Time: Non-citizens who are sentenced to jail or prison may be placed on an “immigration hold”. Upon completion of the sentence and release, the non-citizen may be transferred to DHS custody and placed in removal proceedings.
Once in immigration custody, a non-citizen may be released on bond if he is not subject to mandatory detention.
Detained persons are subject to mandatory detention if they have certain criminal convictions, pose a national security risk, or are asylum seekers entering without documents until they can demonstrate a credible fear of persecution.
The most common ground for mandatory detention is the existence of a prior criminal conviction. Non citizens convicted of certain types of crimes and released from criminal custody after October 8, 1998 are subject to mandatory detention. These types of crimes include crimes of moral turpitude, aggravated felonies, drugs, firearms, and two or more convictions for which the total sentence was five or more years confinement.
In determining one’s eligibility for bond, the government considers whether the alien is a danger to society and a flight risk. Other factors considered for bond include: local family ties; prior arrests and convictions; appearances at hearings; employment; membership in community organizations; manner of entry and length of time in the United States; immoral acts or participation in subversive activities; and financial ability to post bond.
The Detention Officer has the authority to set the initial amount of the bond. If the bond is denied or set too high, the detainee may request a formal bond hearing before an immigration judge. The judge will look at the factors and decide whether to set the bond and for how much.
Being taken into custody can be terrifying for those detained and their families. Those who find themselves in this situation should seek the advice of an experienced immigration attorney to ensure that their rights are protected.