Life in the United States may appear to be quite routine and straightforward. The routine is almost the same for both U.S citizens and immigrants both legal and undocumented.

It looks fairly predictable. Go to work, Pay  rent or mortgage, pay  car note or buy a car, go to school, pay  taxes, pay bills, obey the law, mind one’s own business and everyone is happy.

That is the description of the American dream for most people living in America, regardless of citizenship or immigration status.

Sometimes however, a seemingly slight brush with the law may invite drastically different consequences to the U.S. citizen as compared to an immigrant. Some of these consequences may not come as a result of deliberate wrong-doing; they may just be the result of plain bad luck.

Consider this scenario: A U.S. citizen is driving back home drunk from a late night party. He arrives at an intersection. The light is red but and he drives through only to collide with an immigrant driver going home after a late shift at his job. The immigrant had a green light and was driving carefully. A police officer arrives at the scene. After the routine tests, the citizen is arrested and put at the back of a patrol car, driven to a police station and booked for DUI among other offences.

The Police officer then turns to interview the immigrant. It is a simple routine to prepare the accident report. On running the immigrant’s license he discovers that it is suspended and he has some outstanding tickets. The police officer decides to arrest the immigrant as well.

The police officer is simply doing his work. He knows nothing about immigration law.

Both drivers are booked in the same cell. The next day the drunken citizen driver is released on his own recognizance (without posting bond) and is given a court date. He leaves, not sober yet!

The police also decide to release the immigrant on the same terms. He is free to go too. But wait, not so fast!

Someone has discovered that the immigrant might be unlawfully present in the United States. There is a requirement that whenever a person in custody is suspected to be unlawfully present in the country, then ICE has to be informed and a detainer is placed on him.

(Generally, an immigration detainer is a request to a local law enforcement agency to detain a named individual for up to 48 hours after that person would otherwise be released (excluding Saturdays, Sundays, and holidays), in order to provide ICE an opportunity to assume custody of that individual.  The 48-hour period begins to run when the named individual is no longer subject to detention by the local law enforcement agency—that is, after the individual has posted bond or completed a jail or prison sentence).

The immigrant will not walk out of jail- just yet. He will have to stay around for ICE to have its day with him. An ICE officer will show up and interview the detainee and could decide that the immigrant be put in removal (deportation) proceedings. This is where things get very complicated.

If the immigrant is a legal permanent resident, he could still be put in removal proceedings on the basis of previous offences he committed. If he is a non-immigrant without a lawful status (without papers), he is in a very bad position. He will be taken into the custody of ICE and probably transferred to a distant detention facility where contact with a lawyer or family is very difficult.

ICE will consider whether to release him on some bond. In order to be considered for bond, the immigrant must be eligible (see the Code of Federal Regulations at 8 CFR § 236.1)1 and demonstrate to the satisfaction of the immigration officer that such release would not pose a danger to property or persons, and that the immigrant is likely to appear for any future proceedings. Sometimes ICE may release the immigrant on his own "recognizance." This means he does not have to pay a bond. (Even if he did not have to pay a bond to be released, he must show up for all hearings before the Immigration Court).

Not all detainees are allowed to be released on bond. Depending on their immigration status and/or criminal history, certain persons may be subject to mandatory detention2. A person subject to mandatory detention must fight against deportation from inside detention.

The two types of immigration bonds are:

  1. Delivery Bond – A person that is arrested by ICE and issued a Warrant of Arrest (Form I-205) and a Notice of Custody Conditions (Form I-286) may be eligible for a delivery bond.
  2. Voluntary Departure Bond - If a person is granted Voluntary Departure, the person is allowed to depart the United States voluntarily after being placed in removal proceedings (or instead of being placed in removal proceedings). A person granted Voluntary Departure may have to post a bond to guarantee the person will depart the United States within the required time.

In my experience, I have not seen much enthusiasm on the part of ICE to release detainees on bond.

Once a detainee is in ICE custody, and has been denied bond by ICE or the bond set is too high, he has the right to apply to an Immigration judge to be released on bond during the removal proceedings.

One needs to be quite careful in preparing an application for bond (called motion for bond redetermination). Though such a motion is separate from the removal proceedings and is generally not required to be in any particular form, care must be taken to collect all relevant and helpful evidence and present it in an organized way in order to put forward the strongest case for bond. Bond in immigration proceedings is generally more difficult to obtain than in regular criminal proceedings. The reason for this is the obvious increased risk of flight. One important point is that, a detainee has only one chance to apply for bond before an immigration judge. If he fails, (because of poor presentation or lack of reliable evidence), he can only appeal the decision before the Board of Immigration Appeals (BIA). Succeeding in this appeal is quite difficult especially for one who is unrepresented. In order to have a second or additional bond hearing, you must show that one’s circumstances have changed in a material way since the last bond hearing. Based on this limit on the number of bond requests one can make, it is important to obtain an attorney to work with you, prior to one’s bond hearing.

But one should be careful in asking for this hearing—the Immigration Judge may reset the bond in an amount higher than the one set by ICE. One may need the advice of an immigration Attorney in this regard.

For an immigration judge to release a detainee on bond, three findings are necessary: (1) the person must not be a danger to the community; (2) the person must not be a threat to national security; and (3) the person must not a flight risk.

In determining the amount of one’s bond, the Immigration Judge usually looks at these things:

  • One’s family ties in the United States;
  • One’s criminal history;
  • One’s employment;
  • One’s financial ability to pay a bond;
  • One’s membership in community organizations;
  • How one came to, and how long he has been in, the United States;
  • Whether one has committed any immoral acts or participated in subversive activities; and
  • One’s eligibility for relief from removal.

 

Proving the above factors is the hard part. It requires assembly of many relevant documents and witness testimony where necessary.

In my experience, I believe that the most important factor is eligibility for relief. In simpler language. It is the answer to answer to this question:

“In the final analysis, do you have a strong case such that the court will finally make a decision that you are not removable?”

In other words even if you prove all the outlined factors above and fail to show that you have a strong case against removal, the judge will not release you on bond. Why should you be released on bond if at the end of it you will be found to be ineligible for relief?

When everything fails, then you see how a simple accident could lead to one being put in removal proceedings. I know someone who has been in detention for over two years waiting to be deported. He was arrested following an accident for driving with a suspended license. The accident was not his fault. That should not be you. Start working on obtaining legal status today.

So what should you do?

  1. Once you get arrested for anything, however harmless looking, consult an immigration Attorney.
  2. Once you are charged in any court with a criminal offence however simple, do not plead guilty, do not plead no-contest and do not agree to a plea deal. One’s court appointed attorney is most likely not an immigration attorney and may not be aware of immigration consequences. Let him know of one’s immigration situation and consult an immigration attorney as well.
  3. Make sure that you know the phone number of a good immigration attorney and keep it with you all the time, you never know when you will need to make that one crucial call before you are transferred to an undisclosed location where it will be very hard to contact anyone on the outside. An Attorney can find you.
  4. Always keep some savings to post bond should the unfortunate event occur. When you pay one’s bond fast, the police will release you quicker and therefore you may just beat ICE before they can arrange to come for you. (After you pay the bond, police can only hold you for a maximum of 48 hours on account of ICE).

So I hope this article has been an eye opener. Offences that look negligible to the American citizen can lead to devastating consequences to the immigrant.

Simple rules to remember:

  1. Avoid getting into fights
  2. Never abuse one’s spouse, or hit anyone
  3. Do not drive a defective vehicle. Always have good title, license and insurance.
  4. Does not drink excessively, much can happen in a drunken state.
  5. Pay one’s taxes.

My next article will be on the law of asylum in the United States and how to prepare a successful application.

Footnotes:

1.       http://law.justia.com/us/cfr/title08/8-1.0.1.2.29.1.1.1.html

2.       INA §236(c)

Japheth N. Matemu Esq.

Immigration Attorney, New York

Phone (646) 726-6797

Website: http://www.matemulaw.com