Immigration Bonds & Detention
The local Immigration District Office makes the initial custody and bond determinations. 8 C.F.R. 236.1(d). Upon issuance of an arrest warrant (Form I-205) by the Immigration and Customs Enforcement (ICE), a foreign national may be arrested and detained by ICE. It should also be noted that "in the event of emergency or other extraordinary circumstances," ICE can also arrest and detain foreign national for up to 48 hours even without issuing arrest warrants. See 8 C.F.R. 287.3(d). During or immediately before the expiration of the 48 hours, ICE must make a determination of whether to release the detainee on bond or release the detainee on his or her own recognizance, or continue to detain the alien and issue a Notice to Appear (NTA).
If the foreign national is not subject to mandatory detention, then ICE may release the alien on bond or on recognizance. 8 C.F.R. 236.1(c)(8). In order to be released, the foreign national "must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the foreign national is likely to appear for future proceedings." INA 236(c)(2). Other factors to be considered in making a determination of whether to release on recognizance or bond include:
- Local family ties;
- History of prior arrests, convictions, and/or appearances at previous hearings;
- Membership in community groups;
- Manner of entry or length of stay in the United States;
- Financial ability to post bond.
If the foreign national is not released by ICE, and remains detained, ICE will likely issue an NTA to the foreign national, at which time the foreign national comes under the jurisdiction of the Immigration Judge. See 8 C.F.R. 239.1(a); 8 C.F.R. 240.1. Once under the jurisdiction of the Immigration Court, the alien may request a bond redetermination hearing before the Immigration Judge. 8 C.F.R. 3.19(d). Even in situations where the foreign national is released, that foreign national may request review of the bond or custody redetermination before the Immigration Court. This usually occurs when the alien is seeking to lower the bond or have the conditions of his release alleviated.
The Immigration Judge will generally take the following factors into consideration when making his or her determination of whether to grant release on bond:
- Family ties to the United States
- Immigration Status and Immigration History
- Other Ties to the Community in the United States
- Criminal History and Rehabilitation
- Any Fear of Returning to Home Country
The Immigration Judge also has the authority to review the initial custody/bond determination made by ICE at any time up until the removal order becomes final. 8 C.F.R. 3.19(a). However, arriving aliens, aliens charged with being deportable on security, terrorist and related grounds, or aliens subject to mandatory detention under INA 236(c)(1) are not entitled to bond redetermination by an Immigration Judge. Id.