One of the most pressing questions and concerns that a foreign national and concerned family members or friends have after a non-US Citizen is picked up by Immigration and Customs Enforcement (“ICE”) is how to secure that person’s release. Some are understandably terrified that the individual will just be shipped back to his/her native country; others are afraid that the person may languish in detention indefinitely while immigration court proceedings are pending. Therefore, the foremost consideration is how to get that person released from detention.
Not Everyone Is Subject To Release
The way that our immigration law is structured, not all foreign nationals are eligible to be released. In some cases, the government may argue that the individual is subject to mandatory detention under Section 236c of the Immigration and Nationality Act. Even if the person is not technically subject to a mandatory hold, ICE may set such a high bond that it becomes unreasonably impractical to secure the individual’s release because the person does not have the resources to pay that bond. In some cases, an individual may appeal ICE’s bond decision to an immigration judge. In other situations, even an immigration judge may not have jurisdiction to set bond. Some general categories of non-US citizens who are not eligible include:
•· Aliens in exclusion hearings
•· “Arriving aliens”
•· Aliens who are not “lawfully admitted” to the US
•· Those subject to mandatory detention (see INA 236c)
See 8 CFR 1003.19.
What Factors Does An Immigration Judge Consider?
In situations where an Immigration Judge is authorized to release or re-determine bond, he or she will, of course, consider a number of factors and circumstances. Generally speaking, the government will seek to detain a non-US citizen on the basis that he or she poses a threat to national security or is a high flight risk. Therefore, the foreign national carries the burden to demonstrate that he or she is not a threat to national security; that he or she does not pose a risk of danger to society; and that he or she will appear for all scheduled court proceedings. According to Matter of Guerra, 24 I & N Dec. 37 (BIA 2006), some additional factors that might be evaluated include:
•· Whether the alien has a fixed address in the US
•· The alien’s length of residence in the United States
•· The alien’s family ties in the United States and whether there is a chance that the alien will be allowed to stay here permanently on the basis of those relationships
•· The alien’s employment history
•· The alien’s record of appearances in court
•· The alien’s criminal record, including the extent of activity, the recency, and nature (seriousness)
•· The alien’s history of immigration violations
•· Any attempts by the alien to flee prosecution or abscond
•· The alien’s manner of entry
Newark and Elizabeth Deportation and Bond Hearing Lawyers
Being apprehended by ICE can be one of the most frightening and stressful experiences an individual can go through. The person is not only confused and scared but may not be aware of what rights and defenses he or she can assert. As attorneys, our office can arrange to visit the detainee, learn the basis upon which he or she has been detained, reach out to the assigned immigration officer, and determine whether there is a legal foundation to secure the person’s release. In some cases, terms of release may be negotiated and worked out directly with ICE. In other cases, relief may need to be sought out and pursued through the Immigration Court. As everyone is painfully aware these days, enforcement is a high priority for the Trump Administration and more foreign nationals are being picked up at an alarming rate than ever before. If you or someone you care about has been detained by ICE, our office may able to help.