Immigration Custody & Bond

Immigration Custody and Bond

When an undocumented immigrant is arrested by ICE, he or she may be given the opportunity by ICE to accept voluntary departure in lieu of initiating formal removal or deportation proceedings.

In some cases, a detainee may wish to be freed as quickly as possible and returned to his or her country of origin. In other cases, the detainee may wish to request a bond or request to be released on his own recognizance by ICE. This decision by ICE will often be based on the criminal history of the subject, the past immigration violations, and the potential relief that would be available under the Immigration laws.

For example, someone who had one or more DUIs or violent offenses may be considered a danger to the community. And someone with little likelihood of relief in Immigration Court and few family ties to the U.S. may be considered a flight risk. If ICE refuses to issue a bond amount or authorizes a high bail, the detainee may seek review of that decision before an Immigration Judge.

Generally, ICE will try to schedule an Immigration Court hearing date within 10 days of being taken into custody. Bond hearings will be heard by an Immigration Judge. It is possible to request a bond hearing from an Immigration Judge even before the Notice to Appear, or charging document has been filed in the case. This is because the bond hearing is a separate hearing from the underlying removal proceedings.

The Bond proceedings will inquire into whether the detainee is a danger to the community and a flight risk. Due to highly publicized incidents of undocumented aliens killing people while driving under the influence, the Immigration Judges are cautious to grant a low bond to someone who they believe is a high risk for driving under the influence. While it is possible to have bond granted for someone with multiple DUIs, a strong showing must be made before the Immigration Judge of rehabilitation and a network of support. Generally the longer time that has elapsed since the offense without re-offending, the more likely the Immigration Judge will believe that genuine rehabilitation has been achieved.

Certain categories of offenses, such as aggravated felonies, will disqualify a detainee from bond eligibility, and will subject him or her to mandatory detention. An experienced immigration lawyer will be able to determine in which cases bond is a possibility. In cases where bond is denied, or the detainee cannot afford to pay bond, he or she has the option to pursue the removal hearing while in custody. Such cases are generally expedited to reduce the amount of time in custody and to reduce the government expense to house the detainee while proceedings are pending. In some cases, a detained alien may not be eligible for bond, but could be eligible to pursue and be granted legal residence or some other relief from removal.

In San Francisco, cased of detained aliens are held at 630 Sansome Street, Room 475. While awaiting court hearings, detainees in Northern California are held at various county facilities on a contract basis, which can include Contra Costa County West Facility in Richmond, CA; Sacramento County Jail; and Yuba County Jail in Marysville, CA. An alien arrested in San Jose, CA, for example, may be sent to one of these facilities, or if there is not “local bed space”, that detainee may be transported to another state, such as Arizona or Washington. In these cases, the detainee has his case heard in the local Immigration Court.

ICE usually makes an effort not to transport the detainee out of the general geographic area when they have retained local counsel prior to being transported. In cases where the alien is still transported out of state, a motion to change venue (for example from Arizona back to California) will have a better chance of success of the detainee had hired local counsel prior to being transported out of state. If a family member is detained by ICE you can try locating them online by using the detainee locator tool.

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