Immigration Bonds and Mandatory Detention
The Immigration and Naturalization Act provides for release on a bond and parole. INA §236(a). These bonds should be granted unless the person is a threat to public safety or is subject to mandatory detention. INA §236(c). The Attorney General may revoke and arrest the immigrant at any time. INA §236(b).
Standards and Criteria of Immigration Bond
An immigration judge should issue a bond unless the person is likely to abscond, is a threat to public safety, or is subject to mandatory detention. Matter of Patel, 15 I&N Dec. 666 (BIA 1976). The immigrant has the burden of proof when it comes to threat to public safety. 8 CFR §§236.1(c)(8), 1236.1(c)(8). A bond hearing, however, may be necessary in cases of prolonged detention. The Supreme Court has ruled that INA 236(b) does not require a hearing after six months of detention. Jennings v. Rodriguez, 138 S.Ct. 830 (2018). The court, however, remanded the case the lower court to consider the constitutional challenges to the statute.
General Criteria for Bonds
In Matter of Patel, 15 I&N Dec. 666 (BIA 1976), the Board of Immigration Appeals delineated the following criteria for an immigration bond:
- Fixed address in the United States
- Length of residence in the United States
- Family ties
- Record of appearance in court
- Employment history
- Criminal record
- Pending criminal charges
- History of immigration violations
- Manner of entry
- Membership in community organizations
- Financial ability to post a bond
A change in the immigrant’s circumstances, including losing his removal case, may lead to an increase in the bond. Matter of Sugay, 17 I&N Dec. 637 (BIA 1981). As mentioned above, in Jennings, the Supreme Court ruled that the statute does not have an implied 6 months limitation on detention. Immigration and Customs Enforcement may use other forms of incarceration other than physical detention. These alternatives include:
- Intensive Supervision Appearance Program (ISAP)
- Enhanced Supervision/ Reporting (ESR)
- Electronic Monitoring
The Immigration Judge may reconsider non-monitory forms of supervision. Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009).
The District Director with jurisdiction over the immigrant makes the initial determination as to bond. The Director must state the reasons for the decision. Matter of Daryoush, 18 I&N Dec. 352 (BIA 1982). The immigrant must be given access to his or her Alien File. Dent v. Holder, 627 F.3d 365, 371-76 (9th Cir. 2010). After the initial determination by ICE, motions for redetermination should be made to the immigration judge. Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991). These bond proceedings are separate and apart from removal proceedings. Matter of R-S-H-, 23 I&N Dec. 629, 630 (BIA 2003). As long as the person is in custody, he may make successive motions for redetermination. Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989).
Under 212(d)(2) some individuals are apprehended at the border and found inadmissible does not qualify for a bond but may apply for parole. These individuals include immigrants who are deemed arriving aliens as defined under 8 §§CFR 1.2. This group of individuals includes returning lawful permeant residents who are seeking admission under INA §101(a)(13)(C). As mentioned above, the Supreme Court in Jennings ruled that the statute does not include an implied 6 months limitation on detention.
Mandatory detention also applies to individuals mentioned in INA §236(c). This section of the law applies to the following individuals:
- Persons who are inadmissible by having committed a crime under INA 212(a)(2)
- Persons who are deportable for having committed multiple crimes involving moral turpitude, aggravated felonies, a drug offense, a firearm offense, or treason
- Persons who committed a crime involving moral turpitude with a sentence of more than 1 year
- The Persons involved in terrorist activities
This provision applies to persons who are released after October 9, 1998. Matter of Garcia Arreola, 25 I&N Dec. 267, 269 (BIA 2010). The effective date of INA 236(c) was April 1, 1997.
Procedures Under Mandatory Detention
Although the immigration judge does not have jurisdiction over a person who falls under mandatory detention, they retain jurisdiction over the person’s classification. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). There is an automatic stay provision in the law when the Department of Homeland Security files a notice of intent to appeal.
Please give us a call if you have been placed in removal proceedings. Receiving a bond during removal may be the only way to remain with your family while in removal proceedings. Hiring an experienced immigration attorney like Ahmad Yakzan could be the difference you need.
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