Entitlement to Bond While Pending Criminal and Deportation Case

One of the most pressing issues for an alien charged with a crime is whether he or she can get out of custody during the pendency of the criminal and deportation case. Surprisingly, judges, prosecutors and defense attorneys that ordinarily practice in criminal courts often misunderstand the bonding issues as they overlap between criminal and immigration court. The problem often arises when a criminal defense attorney does not push for a bond, or a lower bond, because they assume the client won’t be released because of a pending ICE detainer.
The truth, however, is that there will be circumstances where an immigrant is entitled to bond in both the criminal case and the deportation case. But not always. When an alien is charged with a crime, they will often fall under the “mandatory detention” provision of the Immigration and Nationality Act. Under this provision, the alien must be detained during the pendency of the deportation case. Normally, an alien with a criminal conviction will fall under the mandatory detention provision.
So what happens as a practical matter is this: An alien is arrested for a crime. When the alien is booked into the local jail, an ICE agent will often make contact with him or her. The ICE agent then lodges a detainer on the alien. When the alien posts bond on the criminal case, ICE has 48 hours to take custody of the alien and initiate removal, or deportation, proceedings. At that point, a bond decision will be made by ICE and the alien may be able to file a motion for reduction of bond in Immigration Court, before an immigration judge. The alien may also be able to contest that he or she is subject to mandatory detention. However, if the immigration judge determines that the alien is subject to the mandatory detention provision, he or she will remain in custody during the pendency of both the criminal and deportation cases.
It is important to consult with an attorney who practices both criminal and immigration law, or if not available, to consult with a criminal lawyer and an immigration lawyer, to make sure that you or your loved one are able to obtain release from custody when entitled to it.