Florida Immigration Lawyer Blog
This is a general outline that explains the law related to bond in immigration cases:
A) GENERAL 1) Bond should be granted unless there is a finding that the individual is a) a threat to national security b) likely to abscond c) a poor bail risk.
2) Bond Procedure a) ICE initially sets bond.
b) Application for re-determination may be made to Immigration Judge.
c) After an initial bond re-determination, a subsequent re-determination can only be made 1. In writing, and 2. upon showing that circumstances have changed materially since the prior bond re-determination.
B) BURDEN OF PROOF 1) on the Detainee 2) must demonstrate that his release would not pose a danger to property or persons.
3) Determination may be based on any information that is available to the immigration judge or that is presented to him.
C) CRITERIA FOR BOND 1) whether detainee has a fixed address in the U.S.
2) length of residence in the U.S.
3) Local family ties and whether ties may entitle detainee to reside in U.S.
4) record of appearances in court 5) Employment history 6) Criminal record 7) History of immigration violations 8) Attempts to flee prosecution or escape 9) Manner of entry 10) Membership in community organizations 11) immoral acts or participation in subversive activities
12) financial ability to post bond
D) APPLICABLE LAW 1) INA §236(a)
2) 8 U.S.C. §1226(a)
3) 8 C.F.R. §§103.6 – Surety Bonds 4) 8 C.F.R. §236 – Detention of Aliens Prior to Order of Removal (DHS)
5) 8 C.F.R. §1003.19 – Bond – Rules of Procedure – Immigration Court 6) 8 C.F.R. §1236 – Detention of Aliens Prior to Order of Removal (EOIR)
E) THOSE NOT ENTITLED TO A BOND DETERMINATION
(MANDATORY DETENTION)
1) Persons in exclusion proceedings 2) Arriving aliens, including Lawful Permanent Residents 3) Persons engaged in:
a. espionage or sabotage
b. criminal activity that endangers public safety or national security c. opposition to, or control or overthrow of the Government.
d. terrorist activities e. Nazi persecution f. violations of religious freedom g. recruitment of child soldiers 4) Persons
a. inadmissible because committed offense of:
1. 2 or more crimes of moral turpitude 2. an aggravated felony 3. a drug offense 4. a firearm offense 5. a crime involving moral turpitude and sentenced to at least 1 year and committed within 5 years.
5) There is a final administrative order of removal.
F) JOSEPH HEARING 1) Hearing to determine whether the detainee is subject to mandatory detention.
2) Standard a) a person is properly included with the mandatory detention statute unless DHS is substantially unlikely to prevail in its charges that the person is removal on one of the grounds designated in INA §236(c).
G) APPEAL OF BOND DECISION 1) Time Requirements a) Appeal of IJ decision 1. 30 days b) Appeal of Deputy Director decision 1. 10 days