Criminal Defense of Immigrants

(A)  In General.  Release from immigration detention on immigration bond is very similar to release from criminal custody on criminal bond.[1]  The bond factors are very similar, if not identical.  “A detainee who does not fit under the mandatory detention categories is eligible to have a bond set unless he or she poses a threat to national security or a flight risk.”[2]  The immigration bond is initially set by the District Director, regardless of whether the detainee was arrested without warrant or as result of an order to show cause, in conjunction with which a warrant for the noncitizen’s arrest.[3]  An immigration judge conducts a bond redetermination hearing to review the bond on request by the noncitizen.[4]  The BIA held it was not error for the immigration judge to consider a pending criminal charge, and the evidence underlying it, in deciding whether a noncitizen would be a danger to the community if released from immigration custody.[5]

[221] See D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 8:15 (National Lawyers Guild 2007); K. Brady, Defending Immigrants in the Ninth Circuit § 11.28 (2007).

[222] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 8:15 (National Lawyers Guild 2007), citing Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976).

[223] 8 C.F.R. §   236.1(d)(1).

[224] 8 C.F.R. § 236.1(d)(3).

[225] Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28, 2006).