Department of Homeland Security officers have authority to stop, seize, arrest and search individuals believed to be present in violation of immigration laws. During the processing of arrested individuals, the officer makes a custody status decision within 48 hours of the arrest, which is essentially a decision whether to detain or release on bond, and a decision whether to initiate removal proceedings.
The law provides that some individuals are not eligible for bond; they must remain detained while the removal proceedings are ongoing. These individuals generally include: (1) arriving aliens; (2) individuals subject to expedited removal who claim a credible fear of persecution in their home country; (3) individuals who have been convicted or placed on deferred adjudication for certain crimes; and (4) individuals with prior removal orders. If the officer determines that mandatory detention is required, this determination may be revisited by the Immigration Judge. Even if the officer does not believe that detention is mandatory, the officer can choose to detain the individual pending a bond decision by the Immigration Judge.
If an individual is detained, an immigration attorney should immediately be contacted. The attorney can determine whether detention is mandatory. If not, a Motion for Bond Hearing is immediately filed and a hearing requested. Typically, a bond hearing is held within a matter of days after the request is made.
At the hearing, the Judge considers evidence of all relevant factors in deciding whether to grant bond, and if so, what the bond amount should be. Some of the relevant factors include (1) family ties; (2) employment history; (3) community ties; (4) manner of entry into the U.S.; (5) length of residence in the U.S.; (6) prior criminal record, including nature, recency and severity of the criminal act; (7) record of appearance at prior court proceedings; and (8) ability to post bond.
If bond is granted, the individual's family member posts the bond at the local Immigration and Customs Enforcement office, and the individual is released, usually within 24 hours. If bond is denied, or if the bond amount is excessive, the decision may be appealed.
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