IMMIGRATION BOND HEARINGS At Burgos Law
When a person is detained by U.S. Immigration and Customs Enforcement (“ICE”), one of the first questions the family often asks is: Can they get an immigration bond?
An immigration bond hearing is a proceeding before an Immigration Judge where a detained person may request release from ICE custody. However, not every person detained by ICE is eligible for a bond hearing, and determining whether the Immigration Court has authority to grant bond involves complicated questions of immigration law.
At Burgos Law, we represent detained individuals in immigration bond proceedings and evaluate whether federal court intervention through a petition for writ of habeas corpus may be appropriate when there is a dispute concerning the legality of detention or access to a bond hearing.
WHAT IS AN Immigration Bond?
An immigration bond allows certain individuals detained by ICE to be released from custody while their immigration proceedings continue in immigration court.
A bond is not the same as winning an immigration case. Release on bond generally means that the individual can continue fighting the immigration case in immigration court while outside of ICE detention, subject to the conditions imposed upon release.
Immigration bond proceedings are separate from the underlying removal proceedings. The Immigration Judge’s decision regarding bond does not, by itself, determine whether the individual will ultimately be permitted to remain in the United States.
WHO IS ELIGIBLE FOR AN Immigration Bond Hearing?
Bond eligibility depends heavily upon the statutory authority under which ICE claims the person is being detained.
Some individuals may be detained under INA § 236(a), 8 U.S.C. § 1226(a), which generally permits discretionary release on bond or conditional parole.
Other individuals may be subject to statutes that the government contends require mandatory detention or otherwise restrict an Immigration Judge’s authority to order release.
For this reason, one of the first questions in a detention case should be: What statute is ICE using to detain this person?
The answer to this question can determine whether the Immigration Judge has jurisdiction to conduct a bond hearing and what arguments may be available to challenge the detention.
WHAT HAPPENS AT AN Immigration Bond Hearing?
A bond hearing is separate from the individual’s underlying removal case. During the hearing, the Immigration Judge may consider evidence and arguments concerning whether the detained individual should be released while the immigration proceedings continue.
Depending upon the applicable legal framework, issues may include:
A bond hearing is separate from the individual’s underlying removal case. During the hearing, the Immigration Judge may consider evidence and arguments concerning whether the detained individual should be released while the immigration proceedings continue.
Depending upon the applicable legal framework, issues may include:
- Whether the individual presents a danger to persons or property;
- Whether the individual is likely to appear for future immigration proceedings and comply with Immigration Court orders;
- Family and community ties in the United States;
- Length of residence in the United States;
- Employment history;
- Immigration history;
- Criminal history, if any;
- Prior compliance with immigration requirements;
- The individual’s potential immigration relief or defenses;
- Evidence of rehabilitation where relevant; and
- Other circumstances relevant to whether release is appropriate.
A strong bond request should therefore be supported by evidence rather than simply asking the Immigration Judge for release.
IMMIGRATION BOND HEARINGS vs. Habeas Corpus
Immigration bond proceedings and federal habeas corpus litigation are related, but they are not the same thing.
A bond proceeding generally asks: Should this person be released from immigration detention under the applicable immigration custody statute?
A habeas corpus action may instead ask: Is the government’s detention of this person lawful?
That distinction can become extremely important.
CAN SOMEONE PURSUE A BOND HEARING and Habeas Corpus?
Potentially. The appropriate strategy depends upon the reason for detention, the statute governing custody, what has occurred before the Immigration Court, and the particular issue being presented to the federal court.
For example, an individual may pursue a bond hearing while separately disputing the government’s position concerning the statutory basis for detention. In other circumstances, the central dispute may be whether the individual is legally entitled to a bond hearing at all. Careful analysis of the custody documents and procedural history is essential.
FAQs
What is a Form I-213?
Form I-213 is a document commonly prepared by immigration officers containing information about a noncitizen and the circumstances surrounding the person’s encounter with immigration authorities.
An I-213 may contain biographical information, immigration history, statements attributed to the individual, information concerning entry into the United States, criminal-history information, and details concerning an arrest or encounter with the Department of Homeland Security (“DHS”).
The I-213 can be important in both removal and custody proceedings. Attorneys should carefully review it for factual inaccuracies, incorrect admissions, identity issues, statements obtained under questionable circumstances, and inconsistencies with other government records.
What is a Form I-830?
Form I-830 is used by DHS to communicate certain information concerning an individual’s address or custody-related location.
An I-830 becomes particularly relevant when an individual has been detained or transferred between detention facilities because it can help document information DHS provided to the Immigration Court concerning the individual’s location.
What is an NTA?
An NTA, or Notice to Appear, is Form I-862.
It is the charging document used by the Department of Homeland Security to initiate removal proceedings. The NTA generally identifies the factual allegations DHS is making against the individual and the statutory charge or charges that DHS alleges to make the person removable from the United States.
The allegations and charges on an NTA should be carefully reviewed. The fact that DHS places an allegation on an NTA does not mean that the individual must agree that it is correct.
What is Form I-286?
Form I-286, Notice of Custody Determination, concerns ICE’s custody determination.
It may indicate whether ICE has decided to detain the individual, release the individual, or set a bond amount. This document can be particularly important when determining what custody decision ICE made and whether review before an Immigration Judge may be available.
What is Form I-200?
Form I-200, Warrant for Arrest, is an administrative immigration arrest warrant issued by an authorized immigration officer.
An I-200 is not the same as a criminal arrest warrant signed by a federal judge or magistrate judge.
The circumstances surrounding an immigration arrest can sometimes become important in determining whether DHS complied with the applicable statutory, regulatory, and constitutional requirements.
What is Form I-205?
Form I-205, Warrant of Removal/Deportation, is associated with the execution of a final order of removal.
If an individual has an I-205 or ICE asserts that the person has a final order of removal, the legal analysis may be very different from a typical pre-final-order bond case.
What is an Order of Supervision?
An Order of Supervision, commonly associated with Form I-220B, permits certain individuals who are subject to a final order of removal to remain outside physical ICE detention subject to conditions imposed by ICE.
Those conditions can include reporting requirements, providing updated information, travel restrictions, electronic monitoring, or other supervision requirements. Violation of the conditions can potentially result in re-detention.
What is Form I-220A?
Form I-220A, Order of Release on Recognizance, is a DHS document reflecting release from custody under specified conditions.
The legal significance of an I-220A depends upon the person’s immigration and procedural history. The document should be considered together with the NTA, custody records, immigration history, and other DHS documents.
What is an ICE detainer?
An immigration detainer generally asks another law-enforcement agency to notify DHS before releasing an individual and may request temporary continued custody so DHS can assume custody.
Can ICE refuse to give someone a bond?
ICE may determine that an individual should remain detained or may contend that the individual is not legally eligible for release on bond.
That does not necessarily end the legal analysis.
The next question is whether the Immigration Court has jurisdiction to review that determination and, if not, whether there is a legitimate statutory or constitutional challenge to the detention that may be presented elsewhere.
Can a person request another bond hearing after being denied?
A subsequent request for bond redetermination may be available when circumstances have materially changed since the prior bond determination.
Simply presenting the same evidence and arguments again is generally not enough. The individual should identify what has materially changed and why that change affects the custody analysis.
Can a bond decision be appealed?
Certain Immigration Judge custody determinations may be appealed to the Board of Immigration Appeals (BIA).
Appeal deadlines can be short. Anyone considering an appeal should determine the applicable deadline immediately after the Immigration Judge issues the decision.
Is a bond hearing recorded?
Immigration bond proceedings are generally treated separately from the underlying removal proceedings, including through a separate bond record.
The availability of a recording or transcript should not be assumed. This can become important when considering an appeal or later litigation. Counsel should maintain detailed records of what occurred during the bond proceeding, including the evidence submitted, arguments presented, findings made by the Immigration Judge, and the basis stated for the decision.
Does losing a bond hearing mean the person will be deported?
No.
A bond decision concerns custody, not the ultimate merits of the removal case. A person may be denied release and still have applications, defenses, or other issues to litigate in the underlying immigration proceedings.
Likewise, receiving bond does not mean the person has won the immigration case.
Does winning a bond hearing automatically result in release?
Not necessarily.
If the Immigration Judge sets a monetary bond, the bond generally must be posted before the individual is released. ICE may also impose lawful conditions associated with release.
Other circumstances, including separate custody authority or legal proceedings, may also affect whether and when the individual is actually released.
Can a Federal Judge overturn an Immigration Judge's bond decision?
Federal court review of immigration detention is subject to significant jurisdictional restrictions.
There is an important difference between asking a federal judge to reconsider the Immigration Judge’s discretionary decision about whether someone deserves bond and raising a legal or constitutional challenge concerning the government’s authority to detain the person or the procedures being used.
That distinction is one reason immigration habeas cases require careful analysis before filing.
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Burgos Law represents individuals in complex immigration matters, including immigration bond proceedings and federal immigration litigation.
When detention presents issues that extend beyond a traditional bond request, our practice can evaluate the intersection between Immigration Court custody proceedings and federal habeas corpus litigation.
Every detention case is different. Prior results do not guarantee a similar outcome, and the information on this page is general educational information rather than legal advice.