Release from ICE Custody Pending Proceedings
Our firm frequently represents those in removal proceedings where the Government has charged the client with grounds of deportation (for those who already entered the US) or inadmissibility (if arriving at a port of entry). The first concern is to review the client’s eligibility for release on a bond so that our client may enjoy freedom of movement while the case is pending. Unlike criminal cases, there are broad categories where immigration detention is mandatory. Our firm has successfully challenged the implementation of these mandatory custody provisions by arguing that being convicted for a crime listed for mandatory custody satisfies only one of two essential elements, the other being that the client must have been released directly into ICE/DHS custody from criminal custody in order to trigger mandatory custody without a bond. The federal district court agreed with the firm on this issue and ordered a bond hearing in the case of Waffi v. Loiselle , 527 F. Supp. 2d 480 (E.D. Va. 2007). The client was subsequently released on a bond during his removal proceedings, even though he had been convicted of an aggravated felony.
Factors in Setting the Amount of Bond
The case law states that the noncitizen in removal proceedings who is not under mandatory detention rules should generally not be detained or required to post bond except on a finding that he is a threat to national security or a poor bail risk (likely to abscond). Bonds are originally set by the ICE office but can be redetermined by an Immigration Judge in most cases. One major exception is that an Immigration Judge may not review a custody determination or bond set by the ICE for an “arriving” noncitizen. In all other cases, the noncitizen or his attorney may request a bond redetermination hearing before the Immigration Judge. This request can be made early in the case when the noncitizen is first held in ICE detention, even before the Notice to Appear charging removable grounds has been filed with the Immigration Court. The favorable factors to consider in setting bond are the noncitizen’s ties to the community, close family ties in the U.S., length of residence in the U.S., steady employment of some duration, reporting his address to the DHS, history of appearance in other court proceedings, and availability of relief from removal. Those are weighed against adverse factors such as a criminal history (especially recent or pending charges), a record of nonappearance in other court proceedings, serious behavior that is a threat to the community or country (especially immoral or subversive activities), and any history of immigration violations, including prior unlawful entries to the U.S.