Many immigrant detainees are deported quickly after being detained because they were not able to get a bond granted at an immigration master calendar hearing, unable to obtain legal representation, or able to post the full amount of their bond. I have seen Immigration Judges give immigration bail bonds ranging from as little as $3,500 to $25,000. In fact, the average immigration bond amount in 2016 was $8,000, a significant increase from ten years prior when the average was $2,500 in 1996. One in five detainees granted a bond could not post the bond amount, and remain detained until the end of their case. I have heard Immigration Judges tell detainees in immigration detention centers that they should come back with an attorney in order to request a bond. When an immigrant is detained, they are sometimes eligible for immigration bonds. These bond requests can be made to the deportation officer who has the power to make an initial custody determination including whether or not to grant a bond, or release the detainee on their own recognizance. However, I have seen more and more deportation officers deferring to the Immigration Judge’s decision regarding bonds where the Immigration Judge conducts a custody (bond) hearing (also known as a bond redetermination request when the Department of Homeland Security initially sets a bond amount or denies bond). It is common that an immigrant fares much better before immigration judges when attorneys represent them, and they are three times more likely to get a bond granted if they are represented, and can demonstrate eligibility for a bond.
In order to be eligible for a bond, an immigrant detainee must first not be subject to mandatory detention. The Immigration and Nationality Act outlines who is subject to mandatory detention, in other words, who may not be released or granted a bond amount. These include convictions and admissions to certain crimes, multiple criminal convictions leading to over five years sentence, and crimes involving drugs. In regard to convictions for drugs or drug use, such as marijuana, a detainee could be subject to mandatory detention in one state, but not in another based on the criminal laws of that state. For example, a person could be convicted of possession of marijuana in Virginia and then subsequently subject to mandatory detention, but since there is legal use in Colorado, a person would never have been convicted in the first place for the same possession.
To be eligible for an immigration bond, an immigrant detainee must demonstrate that he or she is not a threat to national security, he/she would not pose a danger to property or persons, and that he/she is likely to appear for any future proceedings (not a flight risk).
Immigration Judges have the discretion to grant bonds at whatever amount they choose that they believe would guarantee an immigrant detainee’s cooperation in returning to court for their hearing and completing their cases. They consider a multitude of subjective factors from time spent in the United States, criminal history, family ties in the United States, employment history, and immigration record. However, there are factors Immigration Judges use that are mostly unknown since the Immigration Judge’s decision is based on subjective factors. In one instance, an Immigration Judge may grant a low bond, while another given the same set of facts may grant a much higher bond amount for no apparent reason. I have seen an Immigration Judge who stated that he did not like people convicted of, or even charged with driving while under the influence of alcohol. Immigrants going before that Immigration Judge was given much higher immigration bonds than had they been before another judge in that same court. However, this also opens the door to try to convince an Immigration Judge to grant a lower bond amount based on other factors not commonly considered such as ability to pay, and how much one spends to care for their family.
These are just some of the issues with the immigration bond system. The increase in the amount of detentions that is likely to occur given the current administration’s policies will exacerbate these issues such as immigrant detainees not being able to pay the higher average bond amounts, remaining detained, costing tax payers even more money to detain a majority of people who are escaping from persecution in their countries. It is extremely important for an immigrant detainee to be represented by an attorney in order to increase their chances of a bond amount being granted by the Immigration Judge. The benefits of having the chance to get out of detention are being able to spend time with family while facing immigration proceedings, and having a much easier time with preparing your case such as gathering the necessary evidence.