This is one of the nightmare questions that most undocumented and illegal aliens in this country carry with them daily. And with good reason. Despite all the rhetoric about comprehensive immigration reform, the statistics bear out a starker reality: namely, that removal or deportation of aliens is at record numbers. The removal process, these days, is a long one, with clogged court dockets in almost every state.
The Department of Homeland Security will initially make the first custody determination, whether it be to detain the individual indefinitely under the mandatory detention regulations; release the individual under parole provisions; or by setting bond (minimum of $1500) as a condition of release.
If DHS sets an unreasonably high bond, all is not lost. The alien may, under certain circumstances, request review by an Immigration Judge (however, certain classes of aliens are not eligible to have their bonds reviewed by the Court). The Immigration Judge, in turn, may exercise his/her authority to detain the alien in custody, release the alien, or determine the amount of bond, if any, under which the alien may be released during the pendency of proceedings.
What are some of the factors that an Immigration Judge considers? Practically speaking, the applicant will have to convince the Court that he/she is not a danger to society or a flight risk. This is will be reflected by an individual’s criminal record, or lack thereof, as well as evidence of stability here in the US, whether it be in form of a stable job, the presence of family members, etc. As a practice, we always ask clients to provide us with
· Letter of support from family, especially USC or LPRs
· Letters of support from members of the community and employers
· Proof of Payment of Income taxes
· Awards or proof of involvement in the community
· If applicable, evidence of rehabilitation
Other factors that the Court will consider include work history, length of presence here in the US, as well as eligibility for forms of relief, whether it be a cancellation of removal application, adjustment of status, or some sort of waiver. Someone who is prima facie eligible for cancellation of removal, for example, is less likely to run away since he/she may potentially win a grant of approval and ultimately apply for a green card. Issues that will certainly militate or work against an individual include, among other things:
· History of previous immigration violations
· Criminal convictions (felony and/or misdemeanors)
· Lack of family ties, community involvement, or settlement in the US
Although bond hearings are separate and apart from the actual removal hearing, make no mistake as to their importance. Obviously, it is much easier to contest an immigration case outside than fighting it inside, having to endure the mental and physical rigors that come along with detention. In some instances, many people with cases of merit have given up the fight and voluntarily gone back to their native countries because they could not withstand the pressures of confinement. For an illegal alien, one never knows when that day will come when he/she may be picked up on a warrant or just happen to be in the wrong place at the wrong time. As a precaution, undocumented aliens should
· Consult with a qualified immigration attorney ahead of time, before problems arise, to understand their legal options and potential eligibility for relief
· Keep or have accessible a portfolio of
o Evidence of settlement here in the US
o Proof of payment of taxes
o If applicable, proof of family ties (birth and marriage certificates with proof of status)
o A list of people ready to vouch for and submit letters of support
It is also important to understand and accept that release is not always an option. There are certain categories and circumstances under which an individual will probably not be realistically released. Some classes include:
· Individuals who have criminal records, especially convictions for crimes involving moral turpitude
· Individuals who have arrests and/or convictions for crimes that involve controlled dangerous substances
· Individuals who have final orders of deportation.
This is not to say that these types of individuals will never be released, but immediate release or bond terms will likely be out of the question, at least initially.
In these perilous times of aggressive enforcement, it is easy for an undocumented or an out-of-status alien to be lumped in with or misclassified as someone who may not warrant release. Whether immigration reform comes to pass or not, ICE is still aggressively pursuing removal of illegal aliens.