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The United States Courts of Appeal, Second Circuit, held that an immigrant detained must be afforded a bail hearing before an immigration judge within six months of his or her detention. (Lora v. Shanahan, 10/28/15).  The court also held that the detained immigrant must receive bond hearing unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.

Who is not qualified for an immigration bond and is thereby subject to mandatory detention?

The Immigration and Nationality Act lists specific categories of criminals who are subject to “mandatory detention.” The categories include: persons not lawfully admitted who have committed an offense covered in Section 212(a)(2) of the Act, which includes crimes involving moral turpitude, controlled substance violations, drug trafficking, prostitution, trafficking in persons, and money laundering. Also, persons lawfully admitted who have been convicted of multiple crimes involving moral turpitude, an aggravated felony, a drug crime (except for simple possession of small amounts of marijuana), and certain firearms offenses.

Who grants the immigration bond and who determines the dollar amount?

Immigration bonds are granted by either Immigration and Customs Enforcement (ICE) or by an immigration judge. Either party sets the bond to ensure the immigrant’s appearance at future court proceedings.  So, for example, if ICE sets a bond of $5000, and the detainee’s family posts that amount at an ICE field office, then the person will be released.  ICE will return the $5000 if the ex-detainee shows up for all his court hearings.  If he misses a court hearing, then the $5000 will be forfeited.

In any case, a detained immigrant must receive bond hearing and an immigration attorney can file a motion to request a bond hearing.  Depending on the region of the country where the person is detained, requesting a bond hearing may be the fastest way to get a person released from immigration detention.  Once a formal request for a bond is made, the immigration court will calendar a bond hearing.  At the bond hearing, the judge will set a bond amount after making a determination of whether the detainee is a flight risk or danger to persons or property.  The immigration judge considers many factors, on which evidence may be presented by either party.  These include: the immigrant’s family and community ties to the United States, length and seriousness of criminal history, financial stability, history of immigration violations, length of residence in the United States, and history of appearances before courts.

Even at bond hearings, you or your attorney may be able to negotiate a bond amount with Immigration and Customs Enforcement.  When an agreement as to the bond amount is reached, the immigration judge will often accept this number.

For more information, email or call 1-877-GAIL-LAW or 407-292-7730.

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