Over 400,000 immigrants, both documented and un-documented, were arrested and detained by Immigration and Customs Enforcement (ICE) in 2011. Nearly every day we receive phone calls from worried family members of the recently-detained. Naturally they are desperate to find out if, how, and when their loved ones may qualify for release from immigration detention. A wide range of possibilities exist, and knowing exactly what the detainee is facing will hinge on their criminal and immigration history as well as other important factors. Depending on the individual facts of a given case, a detainee may:
1. be eligible for release on their own recognizance. ICE may give the immigrant a series of check in dates at a local field office until their removal proceedings being. ICE may even decide that the immigrant is “low priority” and release them without any further consequence.
2. request and qualify for bond. Paying the bond will result in release from ICE custody. The statutory minimum for immigration bond is $1500, and may go as high as ICE or the Immigration Judge deems necessary to assure the immigrant’s future compliance.
3. be denied bond as a matter of discretion. When ICE or the Immigration Judge determines that the immigrant is either a flight risk or a danger to society they may deny bond as a matter of discretion. A person with three or more convictions for driving under the influence, for example, may be deemed a danger to society.
4. be statutorily ineligible for bond. Immigrants with certain criminal convictions or with prior deportations may have no legal right to a bond.
There is some recent case law in the 9th circuit that suggests that certain immigrants subject to “mandatory detention” should be allowed to request bond after 6 months of detention. However, attorneys in Washington State report that this recently handed down case law is being interpreted inconsistently by local judges. The issue is developing every day.
All immigrants should know that they have a right to speak to an attorney and the right to refuse to sign voluntary departure. They may qualify for future immigration benefits, including release on bond. An undocumented immigrant can improve or protect their rights by maintaining a clean criminal record, paying all fees or fines and correctly filing all taxes every year.