QUESTION: I have a friend who has an immigration hold. He is finishing up a sentence for a crime. What can be done?
Answer: A removable alien who is detained has the right to a bond hearing unless he or she is removable for security reasons, is subject to mandatory detention because of the commission of certain crimes, or is an arriving alien, which may include a returning LPR. The alien should not be detained or required to post bond unless there is a finding that he is a threat to national security or is a poor bail risk. A person with a criminal conviction is not eligible for release except under limited circumstances. An applicant is also detained if he or she falls within the expedited removal provisions and cannot get bond until credible fear is established and are detained pending IJ’s review. ICE has established criteria for granting parole to a person who has been determined to have a credible fear of persecution. If a person claims fear of persecution at a land border port of entry and the fear is unrelated to Canada or Mexico, the person may be required to wait in Canada or Mexico. If the fear is related to Canada or Mexico, the person must be detained pending the IJ’s review. Similarly, a person who is deemed to have not been lawfully admitted is denied bond. DOJ regulations also appear to preclude persons seeking admission from obtaining bond before an IJ.
Question: Is mandatory detention constitutional?
Answer: The constitutionality of mandatory detention has been upheld. For example, the Ninth Circuit has ordered a bond hearing for LPR who has been imprisoned for 2 years and 8 months, finding that “it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal. Also, it is a violation of substantive due process to detain a person subject to deportation for 1½ years, particularly when it is unlikely he can be physically removed.
It has been ruled that “simple fairness, if not basic humanity, dictates that a court should take into consideration the entire period in which a person has lost his liberty such as detention over 2½ years is unreasonable.
Question: Can I appeal a bond decision?
Answer: Yes. Also, persons granted asylum, withholding or CAT by the IJ may be released pending DHS appeal. Although DHS regulations provide that persons granteddeferral under CAT may remain in detention, DHS has stated, “[i]n general, it is ICE policy to favor release of aliens who have been granted protection relief by an [IJ], absent exceptional concerns such as national security issues or danger to the community and absent any requirement under law to detain…. Arriving aliens should [also] be considered for parole.”
You can either appeal the bond denial itself, or the amount of the bond as being unreasonable.
Question: When is detention mandatory?
Answer: Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists; (2) “arriving aliens”; and (3) individuals with administratively final orders of removal.
Question: What types of crimes make somebody ineligible for bond?
Answer: Those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more; multiple crimes of moral turpitude; aggravated felonies; controlled substance offenses; certain firearms offenses or certain espionage and sabotage crimes.
There are usually many ways to fight an immigration detainer, a denial of bond, a claim of mandatory detention, etc. Don’t just give up because you received a denial.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
