It can be extremely stressful and scary when a loved one is caught by immigration officers and detained. Sometimes, you can get your loved one released so they are home with you while their case is processing.
If your spouse or relative has been arrested by Immigration Customs and Enforcement (ICE), Custom and Border Protection (CBP), or any other federal agency, they may be detained or jailed in one of the country’s 250 federal or private jails while they fight their case.
Immigration detention is a policy of the Department of Homeland Security (DHS) and DHS has been increasingly expanding the use of detention. DHS generally has discretion to release immigrants on bond or on conditional parole, including an Alternative to Detention (ATD) program.
Surprisingly, most immigrants in immigration jail have no criminal record at all. Through our experience, we find that many people living here illegally end up in detention because they are at the wrong place at the wrong time. Unfortunately, immigration jail can have horrible conditions. Organizations throughout the country have reported abuses such as physical and sexual abuse, solitary confinement, overcrowding, limited or no access to family members or mode of communication and an inability for attorney access. It is crucial to explore whether your loved one is eligible for release on bond as soon as possible.
Many of our clients call us in a state of fear and panic because their loved one has been arrested by immigration authorities. Our top priority at Santos Khoury, LLP, is to get our clients out of immigration jail as fast as possible and develop a creative strategy to defend our client in the removal proceedings.
There are generally two stages where someone may be released from detention: when ICE apprehends them; or when an immigration judge has authority to release them (commonly referred to as the “Custody Re-determination hearing”).
What do I do when my loved one is detained?
Before you can get your loved one released, you must first locate them. A good place to start is the Online Detainee Locator System, which can be accessed here.
Immigrants who are detained and placed in removal are on a fast track to deportation. Therefore, time is of the essence! Hearings and appeals for those who are detained happen much faster than for those who are not detained.
Hiring an experienced attorney is crucial in detention cases. Many undocumented individuals don’t realize that they still have very important constitutional rights, and, being unfamiliar with the system, they may accidentally waive some rights. For example, under the Fifth Amendment, undocumented individuals may assert their right to remain silent. If you are reading this blog, make sure to inform your loved ones (if undocumented) that they have the right to remain silent (this is very important!). There is a large number of people who end up in jail because they believe that they were required to answer questions asked by law enforcement officials.
Just remember, when speaking with ICE, do not say anything without your attorney present.
It is important to note that immigration officials can (and do) monitor illegal immigrants in detention. Telephone calls, mail, and even discussions with other detainees can be monitored and used against the immigrant in court. However, all communications made to the attorney are protected by the attorney-client privilege.
Now, after you have located your loved one, the next step is to find out who is in charge of releasing your loved one.
Generally, ICE decides whether or not to release your family member based on certain legal factors or equities. For people eligible for release from detention, ICE may set an immigration bond of a minimum of $1,500 following the person’s arrest. The bond is set to ensure the released individual shows up to court. If the person doesn’t appear for their court date, the bond will likely be forfeited.
$1,500 is lowest bond amount that can be set, and it can be paid by anyone. However, if the person paying the bond is in the U.S. illegally, then ICE can place that person in deportation proceedings.
Click this link for a list of facilities that can accept BOND payment.
The amount of bond set by ICE can be found on the document titled “Notice of Custody Determination” (Form I-286), and the amount set depends on whether ICE believes the person will show up to his or her hearing, i.e., whether or not ICE believes that your loved one is a flight risk. Sometimes, ICE will set a bond higher than $30,000. Nonetheless, the bond amount may be challenged in court before an immigration judge.
In some cases, ICE will argue that the person detained is subject to “Mandatory Detention” – meaning, the detainee is not eligible for release. In general, mandatory detention requires that four legal elements be satisfied:
- The detained person is “deportable” or “inadmissible” for having committed a crime or drug offense (this requires a complex legal analysis; it is not an easy element to satisfy);
- The person must be taken “immediately into custody” when the person is released from ordinary custody (if the undocumented person is not taken into custody within a certain time period, there may be a basis to challenge the detention);
- The release must be from criminal custody after October 9, 1998; and
- The detained person MUST BE in custody for an offense that triggers mandatory detention, at the time of release.
This means that if your loved one was previously arrested for an offense that triggered mandatory detention and then they are arrested and detained for a separate offense that does not trigger mandatory detention, ICE cannot then claim that the person is subject to mandatory detention. Claims by ICE that your loved one is subject to mandatory may be challenged in court.
If your spouse or loved one is not subject to mandatory detention, then it will be crucial that they meet with an immigration bond attorney to prepare for the “Bond Hearing” before the immigration judge.
In the immigration world, attorneys must prove the bond case. This requires that the attorney prove two things: (1) The detained person is not a danger to the community and (2) The detained person is not a flight risk.
The immigration judge will assess the following factors when determining if the person is a flight risk:
- Whether the person has a fixed address in the U.S.;
2. The length of residence in the U.S.;
3. Family ties (U.S. citizen or permanent resident family, preferably spouse or children);
4. Employment history (length of job demonstrates the person is unlikely to flee);
5. Record of appearance in court (previously missed hearings lower the chance of release);
6. Criminal history (including how recent and serious);
7. Previous history of immigration violations;
8. Any attempts to flee prosecution; and
9. Manner of entry into the United States.
Additionally, the immigration judge will want to know whether detained immigrant is eligible for immigration relief and the likelihood of obtaining such relief. For example, if the person detained is married to a U.S. citizen or has U.S. citizen children, then the chances for success may be likely as the person may be eligible for an immigrant visa once applications have been processed by United States Citizenship and Immigration Services (USCIS).
Also, just because someone is eligible for release doesn’t necessarily mean that they will be released. Like most forms of immigration relief, discretion plays a crucial part. That is why it is so important to have the best immigration attorney you can find.
A professional immigration attorney can assist you and your family by thoroughly preparing for the hearing and by gathering strong evidence and documents to present to the immigration judge. Some examples of evidence include statements from witnesses; letters of support from family members, employers, or other important members of the community; affidavits of support that demonstrate financial stability; and lease or property tax agreements.
Our attorneys meticulously craft statements to the court which highlight our clients’ good moral character. Our immigration attorneys in California are able to do this because our deportation defense attorneys spend the proper amount of time investigating and preparing each client’s case.
Specifically, our immigration attorney use investigative and legal analytical skills to persuade the immigration judge that our client is a responsible member of society and is dedicated to his or her family, among other positive things. If our client has no criminal history, our deportation defense lawyers may highlight their respect for the laws of the U.S. (as an example). If the client does have a criminal history, our immigration lawyers seek to prove that the client has been rehabilitated. Our clients work together with our deportation defense attorneys to gather the strongest evidence possible prior to the hearing and determine a strategy that increases the chances of release from immigration jail.
Ultimately, if the immigration judge does not approve the bond, the judge will only consider an additional follow-up request if “circumstances have changed materially since the prior bond determination.” The undocumented individual may appeal the decision at the end of the hearing. The appeal must be submitted in writing to the Board of Immigrations Appeals (BIA) within 30 days.
If your spouse or loved one has been arrested by immigration authorities, schedule an appointment with one our immigration bond attorneys today to get your family released from immigration jail.