A person held in immigration detention during removal proceedings may be eligible for a bond. Recently, the ICE immigration agents have been setting bonds as part of the initial detention, but that was not the previous practice and still is not consistently done. Whatever bond is set by the immigration police agents, the immigration judge can change it.
The bond is a financial undertaking that guarantees the presence of an immigration respondent at court hearings held in the case, in exchange for granting freedom to the detainee during the pendency of the case. Regardless of outcome, so long as the respondent has appeared before the immigration judge when required, the money is returned at the end of the case. A detainee who is released on bond can travel using the bond papers as authorization, though additional permission may be required from ICE for travel outside of the state where the immigration court is located.
If a detainee cannot pay the entire amount of the bond in cash, it may still be possible to obtain the services of a bail bondsman, who lends the bond money against collateral (such as a house) for the obligation and agreement to pay a percentage fee in addition to repaying the bond amount.
Bonds can initially be set by the Immigration and Customs Enforcement officers. Judges have the power to set a bond if one has not been determined earlier or redetermine the bond set by the officers.
Some important things to keep in mind about bonds:
- A court hearing to set or redetermine a bond must be requested. The immigration judges do not schedule bond hearings as part of the regular immigration court hearings. Absent a request for a bond hearing, the detainee will likely pay the (usually) higher bond set by the arresting immigration agents, or remain in custody throughout the entire immigration case.
- Some types of immigration cases are not eligible for a bond. Examples include certain types of prior criminal offenses that were committed by a detainee that are called aggravated felonies, which include not only some obvious examples such as murder and rape but also other less obvious candidates. Also a bond can be denied for prior crimes of moral turpitude, which basically are prior convictions for crimes that shock the conscience or outrage the moral sensibility of ordinary citizens, as determined by the immigration judge. Usually, crimes that involve carelessness rather than intentionally unlawful or malicious behavior escape this classification, but not always. Otherwise, the immigration judge generally has the last word on which crimes may fall into that category. Finally, drug related prior convictions can also lead to a denial of a bond, even for rather minor offenses such as possession of drug paraphernalia.
- Even if the detainee is eligible to be considered for a bond, the judge needs to believe that the detainee will respect the terms and conditions of the bond, and not simply melt away anonymously into the general population, or pose a danger to persons or property. Otherwise, the judge might be embarrassed before colleagues or the general public as having been fooled, with resulting damage to the public. Proof of a bona fide residence where the detainee will be staying, as evidenced by utility bills, continuing employment, a history of paying taxes on time, letters from respected and respectable people in support of a bond, ownership of a home, car, or other significant assets, an absence of a history of violent behavior, all can help alleviate such concerns and reassure the judge that giving a bond is in the best interest of the public, the detainee, and his family.
- By statute and regulation, the minimal bond allowed is $1500, but the Obama Administration has instructed all DHS Officers to start bonds at $7,500. There is no maximum set for a bond, which is left to the immigration judge’s discretion.
- Bonds include many terms and conditions, the most important of which is that the detainee must stay out of trouble while the case is ongoing; otherwise, the bond could be revoked and the detainee incarcerated again, in addition to any other troubles incurred.
- Getting a bond involves specialized, technical knowledge of a trained immigration professional, preferably an immigration attorney.