Immigration Bond: The requirements and Documents Needed

August 19, 2010 by Immigration Law Attorney Lena Korial-Yonan, Esq.

Now, in this time of immigration enforcement, many non-US citizens will be seeking immigration bond before an immigration judge. While it is possible to request and receive bond from the Immigration and Customs Enforcement (ICE), there are circumstances when ICE will refuse bond and instead will transport the detainee to a permanent holding place while the detainee goes through immigration proceedings. For detainees with addresses in Jacksonville, FL, for example, they will be transported to Broward Transitional Center or Miami Krome Center, among other places. The Immigration Court in Miami, FL will then handle the immigration proceedings of these detainees.

If ICE has refused to issue bond, the next step is to request bond from the deportation officer. If the deportation officer refuses to issue bond, then an experienced immigration attorney will need to be retained to file a Motion for Re-determination of the Bond with the Immigration Court in Miami, FL.

This article will address the requirements for filing a Motion to Re-determine the Bond with the Immigration Court. Please note that many Immigration Courts have Bond Worksheets that need to be completed and brought to Court on the day of the Bond hearing. These can be obtained from the Immigration Court Clerk for the specific Judge assigned to the detainee's case.

A. BACKGROUND ON PRIORITIES FOR DETENTION & IMMIGRATION RULES

1. NEWLY RELEASED ICE MEMO: Priorities for Detention & Removal of Detainees

According to an ICE Memo recently released on June 29, 2010, there are certain classes of individuals who pose more of a risk than others and therefore they are more of a priority for detention and removal from the US. What this means for the average detainee is that they must show that they do NOT fit into any of the following categories:

A. Individuals who pose a risk to national security or who pose a risk to public safety

These individuals include the following:

• individuals suspected of terrorism or other national security risks
• individuals convicted of crimes, with emphasis on violent crimes, repeat offenders and other felons. Please see below on the three levels of criminals that ICE is after
• individuals older than age 16 who took part in gang activity
• individuals with outstanding criminal warrants
• individuals who pose other risks to the public

There are 3 levels of criminal offenders that ICE has categorized with an emphasis on category 1 as being the highest priority:

• Category 1: Individuals convicted of Aggravated Felonies
• Category 2: Individuals convicted of a felony or three or more crimes punishable by less than 1 year (usually misdemeanor offenses)
• Category 3: Individuals convicted of crimes punishable by less than 1 year

B. Recent Illegal Entrants Shall be a Top Priority, to enforce the new border rules

Illegal Entrants who recently entered the US are a top priority, to enforce the new border rules. President Obama has recently implemented a new border program that will cost over $600 Million, and to enforce the new border restrictions, new entrants shall be a top priority for prosecution by immigration personnel.

C. Individuals who are Fugitives from Immigration are also a Top Priority

This category refers to individuals who have a final order of deportation or removal from the US and have failed to depart the US and / or have re-entered the US after being deported with our permission to do so. This category also refers to individuals who were granted voluntary departure and never departed the US.

2. INDIVIDUALS THAT ICE HAS REQUESTED TO BE RELEASED

ICE has stated that absent unusual circumstances, field officers should not use detention resources on individuals who have the following conditions: Individuals suffering from serious physical or mental illness or who are disabled, elderly, pregnant, nursing or who are the main caretaker for a child or a disabled person.

3. PROSECUTORIAL DISCRETION

ICE has indicated that prosecutorial discretion can be granted under certain conditions. Prosecutorial discretion refers to immigration personnel not exercising their full rights to detain and / or deport an individual because of certain circumstances.

ICE has stated that prosecutorial discretion should be given when dealing with lawful permanent residents, juveniles and immediate family members of US citizens.

B. REQUIREMENTS FOR BOND & DOCUMENTS NEEDED

Given the above, the first step to take for any individual requesting bond is to show that he or she falls under the category for Prosecutorial Discretion, such as that he or she is married in good faith to a US citizen, that he or she is already a green card holder OR that he or she is under the age of 18 years old. If these categories do not apply, then the bond applicant should show, through the assistance of an experienced immigration lawyer in his or her state, that he or she does NOT fall under the categories where top priority for deportation / removal are mandated, as explained in Section A of this article where the three criminal categories were listed.

The bond applicant should show that he or she does NOT pose a risk to the national security. This is usually shown through the absence of crimes or through the absence of violent crimes, if the individual has arrests in his or her past.

Further the individual should show that he or she does NOT pose a flight risk. To meet this requirement, it is most helpful and often required to show that the individual has immigration relief available and thus has every reason to appear for Immigration Court. Immigration relief can include being eligible for cancellation of removal, immediate relative petitions, 212 (c ) relief for individuals who committed crimes before 1996, and other forms of relief that can be discussed with an experienced immigration lawyer.

Other documents needed include the following:

• Proof of identity including passport copy and / or a birth certificate with translation
• Proof of relatives in the US and their immigration status
• Draft of immigration relief the individual will file for and / or proof of actual filing of the immigration relief with USCIS (such as receipt notice or copy of filed paperwork with USCIS)
• Any previous criminal arrest information to show that the individual is NOT an aggravated felon and that the individual has not committed violent crimes in the US
• Letter from a relative or a friend regarding good moral character
• Other qualifying good factors to show good cause why the Immigration Judge should release the individual from detention.

The above requirements are the most recent requirements as indicated by an Immigration and Customs Enforcement Memorandum released on June 29, 2010. Once an individual is being held in detention at either the Broward Transitional Center or Krome Center, then it is imperative that an immigration attorney be retained to file a Motion for Re-Determination of the Bond, as most applicants cannot successfully obtain bond on their own at this stage of the process. It is best to retain local counsel or retain counsel in the same state, as most experienced immigration attorneys are familiar with the requirements for bond throughout the state they are licensed in.

For more detailed information on obtaining bond, please contact our office at 904-448-6646 further information.

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Disclaimer:

This article is owned and written by Lena Korial-Yonan, Esq. No Part can be re-printed without the express written consent of its author. The information provided in this article is not intended as legal advice or to evade U.S. Immigration laws.