After an individual is detained by ICE, the person is taken to a local ICE field processing office. ICE will prepare the necessary paperwork and make a custody determination. That means ICE will make a decision as whether the individual should be released or whether the person should remain in custody. In essence this process is considered the initial custody determination. A subsequent determination, or a redetermination, will take place before an Immigration Judge during what is called the bond hearing. A form numbered I-286 will be completed by an ICE officer. This form is the “Notice of Custody Determination.” This form provides the information indicating the decision and if a bond was granted, the amount to be paid. 

An ICE officer may take one of three decisions: 1. Release the individual with no bond, this is known as release on own recognizance. An individual obtaining this type of release will receive an Order of Release on Recognizance detailing the conditions of release. 2. ICE may detain a person pending a monetary immigration bond being paid. The amount of the bond will vary and can be substantial. The amount of the bonds varies from jurisdiction to jurisdiction even for quite similar cases. ICE will take into consideration several factors with the purpose of attempting to ensure the individual attends future hearings and proceedings. 3. ICE can proceed to release an individual upper supervision or special circumstances. If this is the case, an Order of Release will be issued indicating the particular terms of the release.   

 

There are instances where individuals are not eligible for release from detention. An individual’s immigration history and/or prior criminal record can disqualify an individual from qualifying for a bond. The Immigration and Nationality Act and the federal regulations set forth the circumstances in which individuals must be taken into custody and held without a bond. These cases are known as grounds for mandatory detention. There are grounds of mandatory detention that apply to legal permanent residents as well as nonimmigrants and those who do not have a status in the U.S. 

Some grounds of mandatory detention include cases in which individuals are permanent residents or overstayed the period of authorized stay and were released from jail after October 8, 1998 and convicted of the following crimes:

2 Crimes Involving Moral Turpitude at any time after admission in the U.S.

An aggravated felony

A controlled substance offense

A firearms offense.

 

Immigration law also provide additional circumstance when individuals are subject to mandatory detention. Mandatory detention has been prescribed for 1. lawful permanent residents re-entering the U.S. from a trip abroad 2. Individuals that entered the U.S. without authorization (EWI), 3. Individuals seeking admission into the U.S. If an individual fall within one of the aforementioned categories and if the person was released from jail after October 8, 1998 and convicted of one of the following crimes then the individual maybe subject to mandatory detention:

  • One CIMT (which may be waived as a petty offense if no prior criminal history, the offense was not punishable by more than one year in jail and did not serve more than six months in jail);
  • Controlled substance offense;
  • Drug trafficking offense;
  • Two or more offenses with aggregate sentence of 5 years incarceration;
  • Prostitution;
  • Domestic violence or violation of protection order.

 

Procedures for setting bond

An individual that is not subject to mandatory detention can initiate the process to obtain an immigration bond if ICE did not already grant a bond.  A motion to the Immigration Court must be submitted seeking a bond hearing redetermination. To set the amount of the bond the Immigration Judge must take into consideration factors. These factors include 

 

  • Eligibility for Relief: The Judge will be keen to determine for what forms of relief the individual may qualify. An individual is unable to qualify for any form of relief then a higher bond may result. 
  • Criminal History: Does the individual have any arrests and/or convictions? If so, these will be taken into consideration and depending on the gravity of the history a bond may be set at a higher amount or may be eliminated altogether. 
  • Prior Immigration History: Does the individual have a legal status? Has the individual previously been removed? Did the person enter without authorization? If any of these apply, the bond could be set accordingly. 
  • Ties To The Community: Does the individual have a history of living in the U.S.? Does the person have a job? Does the person own any property in the United States? Does the individual have any family members in the U.S.? What are their status? These are all important factors that play a significant part in the amount of bond to be set. 

 

Amount of the Bond

An individual may not be granted bond by an Immigration Judge  in an amount less than $1,500. However, the Immigration judge may grant release to an individual “on the person’s own recognizance.” In other words,  the judge can release  a detainee without any bond being posted. If a bond is set, the bonds must be paid at an ICE acceptance facility. A list of facilities that accept bond payments can be found at https://www.ice.gov/ice-ero-bond-acceptance-facilities. The person paying the bond must have the last name of the detainee and alien registration number. Acceptable forms of payment to post a bond are money orders, cashier’s checks or certified checks. For all bonds $10,000 and over, the only accepted method of payment is a single cashier or certified check. The obligor can either post a bank’s cashier’s check or U.S. postal money order. The obligor cannot post a money order from any other business, such as Western Union—it must be from the post office. Payments must be made payable to “U.S. Department of Homeland Security” or “Immigration and Customs Enforcement.” A bail bonding company can be used however the bonding company may require additional service fees that maybe excessive. The bondsman will post the bail on the person’s behalf, but will charge a non-refundable fee and will require a certain percentage of the immigration bond amount to be paid. If the family pays the bond directly to the government, the bond money will be returned to the person that paid the bond only after court case is completed. The individual must have complied with all requirements and instructions of the court.

Bond Appeal

A person may appeal to the Board of Immigration Appeals if he or she is not in agreement of the bond set forth by the Immigration Judge. The appeal must be received by the BIA within 30 days of the date the Immigration Judge pronounced his decision on the bond. While the appeal is pending the individual will remain detained. However, removal proceedings will continue regardless of the pendency of the appeal.  It is important to take note that a trial attorney working for ICE and representing the government may not agree with the bond decision of the Immigration Judge therefore the government may also appeal the judge’s decision. If both parties waive appeal or do not file an appeal in a timely manner, the judge’s decision becomes final.