What Happens at a Bond Hearing in Immigration Court

It might surprise you that, even though immigration violations are not considered criminal acts (but rather administrative or, civil in nature), foreign nationals who violate U.S. immigration laws can be arrested and detained for such violations. When this happens to you or a loved one, it is a frightening experience. Getting out of the detention facility and back home with family is typically a top priority.

If eligible, payment of a bond is one mechanism by which a detained person may be released from the custody of U.S. Immigration and Customs Enforcement (ICE). A bond is an amount of money that will allow release from detention, while also providing some assurance to the federal government that the individual will appear for required court hearings and ICE appointments and "call-ins". If, after payment of the bond and release from ICE custody, you fail to appear in court or before ICE, the bond will be revoked, the U.S. government will keep the money, and ICE will likely re-arrest you. If you appear at all hearings and comply with all court orders (including an order to leave the country, if necessary), whoever paid the bond will receive the money back.

This article will discuss eligibility for a bond hearing, the process for requesting one, and what happens at the bond hearing.

When Keeping a Foreign National in Custody Is Mandatory

The first question to consider is whether you are eligible for release from immigration custody. Immigration statutes and regulations set forth categories of people who may not be released from custody. As a result, the law prohibits ICE from releasing such individuals or granting them an opportunity to bond out. Similarly, an Immigration Judge ("IJ") will not be able to conduct a bond hearing for ICE detainees who are subject to mandatory custody.

Who Is Eligible for a Bond (or a "Custody Redetermination") Hearing

Assuming you are not subject to mandatory custody, ICE will make an initial decision on your custody status following your arrest. The determination will likely be one of the following:

• ICE could continue to detain you, without giving you an option to be released on bond.
• ICE could set a bond for you which, if paid, will allow you to be released from ICE custody.
• ICE might enroll you in an "Alternatives to Detention" program, typically, with a kind of supervised electronic monitoring, or
• ICE could release you on your own recognizance (or promise) to attend all court hearings and immigration appointments.

ICE's decision will be the first to determine whether you will be detained during removal proceedings. How long it will take ICE to assign a bond amount varies by office; some report that, for example, it's usually done by 2 p.m. on the date of someone's arrival in detention. ICE will issue a document, Form I-286 "Notice of Custody Determination," which will provide you with its custody decision.

If you disagree with ICE's custody determination, for example, if ICE decides to detain you without bond or ICE sets a bond that is too high for you to pay, you might be able to ask an Immigration Judge to review it during a bond hearing (technically, a "custody redetermination hearing"). But U.S. immigration laws place limits on who is eligible to ask for such a bond hearing.

As discussed above, if you are subject to mandatory custody, you will not be eligible for a bond hearing before an Immigration Judge. In addition, if you are classified as an "arriving alien," meaning you were encountered by immigration officials during your entry or attempted entry into the United States—or shortly after you crossed the border into the United States—you will not be eligible for a bond hearing. In addition, if your removal proceedings have already concluded and you are in ICE custody while awaiting removal from the United States, you will likely not be able to get a bond hearing.

However, the laws on eligibility for bond hearings are complex and can be affected by where you live in the United States. (This is because federal courts of appeal across the U.S. have issued differing opinions with respect to bond eligibility.) As a result, if you would like to know whether you or a loved one is eligible for a bond hearing, you should consult with an immigration attorney about the specific facts of your case.

How to Request an Immigration Bond Hearing

If eligible for a bond hearing, you can request one by checking the box on your Form I-286 that says "I do…request a redetermination of this custody decision by an immigration judge" and "I acknowledge receipt of this notification," and by signing the form. You can make this request at the time of ICE's initial custody determination or at a later time.

If you didn't receive a Form I-286, you can also ask the IJ whether you can have a bond hearing. You may do this by filing a written motion with the IJ, or by orally making the request at your first scheduled court appearance (called a Master Calendar Hearing, MCH, or scheduling hearing).

Your best option is to hire an experienced immigration attorney who will be able to quickly prepare and submit a well-written motion for a bond hearing. If hiring an attorney is not an option, you might have access to a law library of sorts while in custody, and can prepare one on your own. This all depends on the facility where you are located and on your deportation officer's willingness to assist you with accessing these benefits.

What Happens at an Immigration Bond Hearing

During the bond hearing, you will have the opportunity to ask the IJ to either:

• grant you a bond (if ICE has decided to detain you with no bond)
• reduce the bond amount that ICE has set for you, or
• release you on your own recognizance.

You will have the burden of proof, meaning that, during the bond hearing, you will be responsible for convincing the IJ that you deserve to be released from custody or granted a low bond.

A bond hearing is separate from a Master Calendar Hearing, but can take place on the same day. If you need additional time to prepare, you can usually request a continuance (postponement) and the IJ will set the hearing two to three weeks out. If unsure of the date of your bond hearing, call the clerk at the Immigration Court your case is in; do not call the EOIR hotline (1-800-898-7180) as it does not have bond hearing information.

On the date of your hearing, if you are in detention at a facility with an Immigration Court onsite, you will be physically present in the courtroom. If you are at a facility that does not have an immigration court onsite, you will appear through a video link that goes to the courtroom or will be transported by bus to the Immigration Court.

When you are led into the courtroom, the security guards will tell you where to sit while you wait for your case to be called. You will not be permitted to speak or interact with any family members who might have come to your hearing. The only person you will be able to speak with prior to the hearing is your attorney.

What Evidence the IJ Considers at an Immigration Bond Hearing

There are two primary issues that will determine whether the IJ will grant you a bond or lower the bond that ICE has given you.

The first is whether you present a danger to people or property. If you do, it is likely that the IJ will not change ICE's custody decision.

If your evidence demonstrates that you are not a danger, the IJ will examine evidence on the second issue—whether you are a "flight risk." The rules of evidence are very liberal in a bond hearing, and an IJ can consider any evidence that is relevant to whether you present a danger or a flight risk. You will most likely need to testify and answer questions by the IJ, the ICE attorney, and your attorney (if you have one). You may also present your own witnesses. Sometimes, the ICE attorney presents government witnesses.

Assessing Whether You Are a Danger to People or Property

In assessing whether you present a danger to other people or their property, the IJ will consider your criminal rap sheet, which the ICE attorney will likely present if you have one. Any arrests, including those relating to driving while under the influence of alcohol or a controlled substance (a DUI or DWI), will be considered. If you have a criminal record, letters from from friends, family, and professional service providers who know you well can help attest to your changed behavior for the better or confirm your participation in, or completion of, any rehabilitation programs (anger management, substance abuse counseling, and the like).

If you have an arrest that did not lead to a conviction, be prepared to explain any mitigating circumstances—for example, a victim's retraction of the allegation against you, or the fact that the local prosecutor's office refused to bring charges against you due to insufficient evidence. If, however, you have a conviction for a crime, immigration court is not the place to try and relitigate your criminal case. Instead, take responsibility and provide strong evidence of rehabilitation.

Assessing Whether You Are a Flight Risk

As stated above, if you can show the IJ that you do not present a danger to the community, the IJ will next consider whether you are a flight risk—in other words, can the IJ believe you when you say that you will appear at all of your immigration court hearings and ICE appointments?

Factors that tend to minimize a showing of flight risk include:

• the presence of family members lawfully living in the United States
• a stable home that you rent or own
• consistent employment, and
• eligibility for relief from removal (such as asylum or a marriage-based green card).

As a result, you should provide the IJ with copies of birth certificates for any U.S.-born children, proof of U.S. citizenship or permanent residency status for close family members, a marriage certificate if your spouse is in the United States legally, a letter from your employer and/or pay stubs, and letters from family and friends who can speak to your good character and promise to show up for court hearings and immigration appointments. Proof of your participation in community groups, for example, a religious or volunteer organization, are also helpful. In addition, if you have a criminal record that shows that you failed to appear in court, you should explain those circumstances to the IJ and demonstrate why the same thing would not happen in immigration court.

Finally, although not specifically required in the immigration regulations, if you are eligible for an immigration benefit—particularly if yours is a strong case—this tends to suggest that you are unlikely to abscond from ICE and that you will attend your immigration court hearings. You don't need to fully argue your immigration case at the bond hearing, but you will want to alert the IJ to the fact that relief is available and that you have a high likelihood of success on the merits of your case.

Conversely, if some form of immigration relief is available but your likelihood of winning is low, the IJ can decide that you are more likely to be a flight risk, and set a higher bond amount or deny bond altogether.

The Immigration Judge's Bond Order

The IJ can issue an order that keeps the ICE custody determination as is, or the IJ can change it. In some instances, the IJ might issue an order that is more restrictive than the ICE custody determination. But if you are successful in your arguments to the IJ (showing that you are not a danger or a flight risk), the IJ can issue an order requiring that ICE release you on your own recognizance, grant you a bond (if ICE decided to detain you with no possibility of a bond), or lower the bond amount that ICE set.

If you are unhappy with the IJ's order, you can appeal the IJ's decision to a higher court, known as the Board of Immigration Appeals (B.I.A.). If ICE is unhappy with the IJ's order, ICE may also appeal the IJ's decision.

If both sides decline to appeal an IJ's bond order and you are able to post the bond, you will be released from custody and your removal proceedings will be transferred to the immigration court's non-detained docket. It is important to continue to appear at all immigration court proceedings. If you do not, the IJ will order you removed from the U.S. and you will forfeit (lose) any bond amount your obligor (the person who paid the bond) paid. If you complete your immigration proceedings and either retain legal status in the U.S. or timely depart in accordance with a removal order, the obligor will be able to get their bond money back.

Getting Legal Help

If all of this still seems overwhelming (as it does to many immigrants), it might be time to hire an experienced immigration attorney to help analyze your situation and prepare the paperwork and any arguments to USCIS.