What Happens at a Bond Hearing in Immigration Court

How the Immigration Judge decides whether to release someone from detention upon payment of a bond.

By , Attorney (Case Western Reserve University School of Law)

Being detained by U.S. immigration officersmost likely from the office of Immigration and Customs Enforcement (ICE)is a frightening experience for anyone. Getting out of the detention facility and back home with family is typically a top priority.

One way to get out of detention quickly is to pay a bond. A bond is an amount of money that will allow a person to be released from detention, but gives the court assurance that the person will continue to appear for future court proceedings.

If, after paying a bond and being released, you do not appear for future court hearings, the bond will be revoked and the U.S. government will keep the money. 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.

How to Request an Immigration Bond Hearing

Bond will be set by either ICE or an Immigration Judge (IJ). ICE will make the first custody determination when you are placed in immigration detention while awaiting removal proceedings. If you disagree with ICE's determination, you will have the opportunity to request a bond hearing from the IJ.

ICE will usually assign a bond amount by 2 pm 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 determination. ICE may either choose to release you on your own recognizance (very rare under the Trump administration) in which you do not have to pay any bond, release you with a set bond amount, or decide not to set a bond and keep you detained.

If you disagree with ICE's bond amount or do not receive a bond determination from ICE, you may also request a bond redetermination hearing from the IJ. You can request this at any time after being placed into ICE custody. Usually, you can request a bond hearing on your Form I-286 by checking the box that says "I do…request a redetermination of this custody decision by an immigration judge" and "I acknowledge receipt of this notification," and signing the form at the time of ICE's initial custody determination. However, sometimes you do not receive Form I-286. In that case, you can make an oral request for a bond hearing at your first scheduled court appearance (called a Master Calendar Hearing) or file a written motion for bond redetermination.

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 gaining access to these benefits.

Who Is Eligible for Release on Bond

Unfortunately, not all detained aliens are eligible to receive a bond order. Depending on factors like your current status in the U.S. and the reasons you were picked up, you could remain detained for the duration of your removal proceedings. An IJ does not have the authority to grant you a bond if you fall into one of these categories:

  • You are classified as an "arriving alien" (for example, a non-citizen returning to the U.S. from a trip abroad).
  • You have not been lawfully admitted into the U.S. (in other words, you entered without presenting official documents to an official at a border or other port of entry)
  • You have engaged in activities that threaten the national security of the U.S., such as espionage, sabotage, attempts to overthrow the government, or related terrorism activities.
  • You have committed certain crimes in the U.S., such as drug possession or sale, crimes of violence, theft, fraud, or the like, and were released from police custody after October 10, 1998.

Falling into one of the above-mentioned categories classifies you as being under "mandatory detention." The IJ will not be able to allow your release upon payment of a bond no matter how great a case for remaining in the U.S. you have and no matter how much the IJ wants to grant you a bond.

If the IJ determines that you do not qualify for a bond order, but you disagree with that determinationfor example, you believe that you have been confused with another person of the same name who committed various crimesyou can request what's called a "Joseph hearing," at which you can present evidence that proves you are, in fact, eligible for a bond.

Step-by-Step Guide to the Immigration Bond Hearing

Although the bond hearing is separate from the Master Calendar Hearing, it usually takes place on the same day, but just before your first Master Calendar Hearing. However, if you need additional time to prepare, you can usually request a continuance and the IJ will set the hearing two to three weeks out. If you are 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 you will not be in handcuffs or shackles, but will be wearing federally issued clothes and shoes and be monitored by security guards. The security guards will tell you where to sit to wait your turn for a hearing and 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.

To start your bond hearing, the IJ will review your immigration status in the U.S. and make sure you are eligible for a bond. Then, the IJ will decide whether to grant you the bond. This decision is ultimately up to the IJ's discretion. In other words, even if there is nothing legally preventing the IJ from giving you a bond, he or she may still deny you a bond based on things like perception of your character or past behavior.

To make this discretionary decision, the IJ will weigh any evidence in the record In a bond hearing, the burden of proof is on you to prove to the IJ that you are:

  • not a flight risk
  • not a danger to the safety and security of the United States, and
  • not a threat to national security.

Factors the IJ will consider to determine whether you are a flight risk include your family ties in the U.S., whether you own or rent a home or apartment, whether you are employed, and whether you qualify for any forms of relief from removal (such as asylum or a marriage-based green card). To help convince the IJ, you can invite close family members to attend your bond hearing if they are U.S. citizens or lawful permanent residents (LPRs). You should also provide the IJ with copies of birth certificates for any U.S.-born children, a marriage certificate to your spouse if he or she is in the U.S. legally, a letter from your employer and/or pay stubs to show employment, and letters from family and friends showing you have ties to the community and the United States.

During the bond hearing, the IJ will ask you (or your attorney) questions about your family ties, employment, or past criminal history. If you are not represented by an attorney, you would respond to the IJ's questions directly. Family members who attend your bond hearing will likely not be asked to testify, but you can point them out to the IJ when responding to questions about your family. Their presence in the courtroom will also provide concrete proof that you have family in the U.S. who support and care for you.

To determine whether you are a danger to the U.S., the IJ will look to your past criminal history. Any arrests, including for Driving Under the Influence (DUI), will be considered. If you do have any past criminal history, it's a good idea to provide letters from friends and family that talk about your good moral character and how you have changed for the better since any past criminal behavior, or provide proof of participation and/or completion of 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 show why that arrest was improper. If, however, you have a conviction, immigration court is not the place to try and relitigate your criminal case. Instead, take responsibility and provide strong evidence of rehabilitation. You want to show the IJ that, on balance, your positive points outweigh any negative factors.

Finally, although not one of the explicit factors in a bond determination, showing that you are eligible for immigration relief is another important element. If you are immediately eligible for immigration relief, you don't need to fully argue your immigration case (that will be through a separate immigration hearing process), but you will want to alert the IJ that relief is available and that you have a high likelihood of success on the merits of your case. Conversely, if 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.

Bond Amount

The minimum bond amount the IJ can set is $1,500. However, under the Trump administration, getting bond set at $1500 is more of a theoretical possibility than a likely outcome. Most bond amounts are set substantially higher, and there is no cap as to how high the bond amount can be. A $10,000 bond is quite common. The IJ might set it at $20,000 or even higher, however. The more the IJ thinks you might be a flight risk or a danger to the U.S., the higher your bond amount will be.

The Department of Homeland Security (DHS) might object to the bond amount given by the IJ and suggest a higher amount. However, the decision is ultimately the IJ's. You or your attorney, may also make suggestions as to the amount of the bond and give reasons why you think it should be lower.

The Immigration Judge's Bond Order

If the IJ grants you a bond, he or she will give you a written order stating so and indicating its amount. At the conclusion of the bond hearing, the IJ will reschedule your Master Calendar Hearing (usually for no more than 30 days later) to give you a chance to pay the bond and be released from custody before your next court appearance. If you do not pay the bond before then, you will have to appear at this hearing while still in immigration custody.

If able to post the bond, you will be released from custody and your removal proceedings will be continued in the immigration court for non-detained persons. After your release, the DHS attorney will file a Motion to Change Venue so that your next hearing will be scheduled at the immigration court nearest to the home address you provided to the court upon your release. You will be mailed a notice of the date and location of your next hearing. Meanwhile, the hearing scheduled by the IJ who granted your bond will be cancelled.

It is extremely 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.

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