Criminal Defense of Immigrants


§ 6.43 (A)

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(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).



ICE Fact Sheet: Alternatives to Detention for ICE Detainees, Oct. 23, 2009.

Ninth Circuit

Singh v. Holder, ___ F.3d ___, 2011 WL 1226379 (9th Cir. March 31, 2011) (government bears burden of persuasion by clear and convincing evidence that respondent is a flight risk or danger to the community, and thus that continued prolonged detention pending removal is justified); following Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (identifying nine relevant factors to evaluate in determining flight risk and danger to the community)
Singh v. Holder, ___ F.3d ___, 2011 WL 1226379 (9th Cir. March 31, 2011) (immigration court must make contemporaneous record of Casas bond hearings in removal proceedings for individuals in prolonged detention pending a final decision on removal; a memorandum decision drafted after the bond hearing is not an adequate functional equivalent of a transcript); citing Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) (noncitizens facing prolonged detention while petitions for review of removal orders are pending are entitled to a bond hearing before a neutral immigration judge). Note: Counsel may wish to argue that the Singh rationale also requires the same procedures be used to protect the interest in freedom from ordinary immigration detention, that it held applicable to protect the interest in freedom from prolonged detention.
Rodriguez v. Hayes, 578 F.3d 1032 (9th Cir. Aug. 20, 2009) (allowing class action to proceed challenging detention of more than six months without bond hearing while in immigration proceedings).


AILF Practice Advisory: ARREST, DETENTION AND BOND PROCEDURES FOR NON-CITIZENS WITHOUT CRIMINAL CONVICTIONS "This practice advisory focuses on the law governing the arrest, detention and bond procedures for non-citizens who 1) are present in the United States and 2) do not have criminal convictions." July 2008, AILF. Copyright (c) 2002, 2008 American Immigration Law Foundation. HYPERLINK ""
ACLU Practice Advisory, Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security on the Third Circuits decision in September 2011 on prolonged mandatory immigration detention, Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). This practice advisory discusses how certain detainees can use Diop vs. ICE, 656 F.3d 221 (3d Cir. 2011) to obtain bond hearings. Notably, although the Court held that reasonableness is a function of the length of the detention, id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that [r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case. Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)"45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)"the constitutionality of detention without a bond hearing becomes increasingly suspect. Id. Thus, your clients right to a bond hearing will turn on showing that detention has become unreasonable in his or her case, with a significant"but not sole"factor being the length of detention. Thanks to Michael Tan.
ICE has authority to detain persons during the removal period (90 days following the order of removal). INA 241(a)(1). The individual, however, is not subject to mandatory detention unless the applicant was removed on criminal grounds, under INA 212(a)(2), or security grounds, under INA 212(a)(3)(B), or 237(a)(4)(B). Under 8 C.F.R. 241.8(d), ICE officers are supposed to immediately refer those who express fear of returning to an asylum officer for a reasonable fear interview. But even where the order of removal is reinstated, there is nothing in the regulations to prevent ICE from allowing release on an Order of Supervision. See 8 C.F.R. 241.4 and 241.5.