One of the most important questions family members will have upon learning that one of their loved ones has been detained by the Department of Homeland Security is how to get them released. When an Immigration and Customs Enforcement ("ICE") officer arrests or takes an individual into custody, he/she must usually determine whether to release the individual (with the expectation that he/she will show up for a future court date) or set a bond. Sometimes, under certain circumstances-usually when the individual has been convicted of a particular type of criminal offense-he/she may be subject to mandatory detention, meaning that the person is not eligible for release.
What is the Purpose of Bond?
There are actually many types of bond, including but not limited to delivery bonds and voluntary departure bonds. For purposes of this discussion, we are talking about delivery bonds in the sense that the person will be delivered to all future court appearances. If an alien is eligible for release on bond, a bail determination will be made. While the minimum bond amount is $1500, the amount can reach excessive levels, sometimes up to $10,000 or more, if the government feels that the individual is a flight risk or poses a danger to society. The purpose of the bond is to ensure that individual shows up for all required court appearances and does not abscond. Very much like bail in a criminal case, the bond money will be forfeited should the individual flee or fail to appear, thereby giving the person a financial incentive to attend all of his/her hearings.
If the individual or family does not have sufficient funds to post the bond, all hope is not lost. The individual may request a Bond Redetermination by an Immigration Judge, who would review the bond amount and determine whether it is appropriate given the circumstances of the case. In many cases, with effective advocacy and proof that the person is not dangerous or likely to disappear, an Immigration Judge may lower the bond. Our attorneys have personally handled many cases where bond was initially set at $10,000 but thereafter reduced to $7500 or less.
Alternatively, just as in criminal cases, if the bond cannot be posted, the alien or family may want to consider seeing a licensed bond agent. An immigration bail bond agent is in the business of posting the immigration bond on the alien's behalf. Of course, because this is an inherently risky practice, the agent will usually charge a fee to do this as well as expect some sort of collateral to be put up in the event that the person does not show up. The collateral can include real estate, cash, etc. The fee is usually anywhere from 15% and up of the bond amount, and is non-refundable. For example, if the individual's bond is set at $10,000, a bail bond agency may act as a surety and put up that full amount on the alien's behalf for a nonrefundable fee of $1500. Should the alien disappear or fail to show up, the agency will lose the full $10,000. If, however, the individual appears at all required hearings, the bail amount will be returned to the obligor (the person taking the risk in putting up the bond) upon conclusion of the proceedings.
Where is Bond Posted?
Payment of the bond is usually made at the local ICE office in the state where the person is being detained. The bond paperwork is executed on Form I-352. Payment must be made in the form of a certified or cashiers' check or money order. Personal checks, for obvious reasons, are not accepted (the government would look foolish releasing somebody on the basis of a check which later bounced).
Who May Post Bond?
Other than an authorized or approved bail bond agent, an individual who posts bond on behalf of another must be at least 18 years of age and have legal status in the United States, whether as a citizen or lawful permanent resident. The individual must also possess current proof of identification.
Should Bond Be Posted?
Besides the obvious concern of bailing out a loved one from detention, there are many practical reasons why bond should be posted as soon as practicable. As long as the alien remains in custody, he/she will be unable to communicate with counsel and family as freely as he/she normally would if free. Detained individuals are put on an accelerated court schedule, which may not necessarily be to their advantage, if they need to work with counsel on preparing their case or securing the necessary evidence to bolster their claims. Moreover, as long as the person is detained, there is always a chance that he or she may transferred from one state to another to accomodate housing shortages, etc. Since immigraiton is federal, a person could, without any advance notice, suddenly be transferred from New Jersey to Lousiania, which could not only be very disconcerting but impede effective communication with one's family and lawyer who may be based in a different state.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.