Criminal Defense of Immigrants
§ 6.44 1. Bond
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The DHS makes the initial bond determination.[1] Unless barred,[2] the noncitizen may then request that the IJ review that determination.[3] The IJ may raise or lower bond,[4] and consider non-monetary conditions to bond. The IJ’s decision may be based upon any information available,[5] including pending criminal charges.[6] Although the IJ can take into consideration a number of factors in making a custody/bond determination,[7] the most important considerations are (1) danger to the community, and (2) flight risk.[8] Appeal of an IJ’s bond decision to the BIA must be made within 30 days.[9] Actual release of the immigrant is subject to the possibility of an automatic stay of release if the government appeals.[10] See § 6.46, infra.
Regulations govern when DHS may release a noncitizen who is not subject to mandatory detention.[11] “Any officer authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien [not subject to mandatory detention] provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.”[12] Appeal of a DHS decision must be made within 10 days.[13]
[227] 8 C.F.R. § § 236.1, 1236.1.
[228] 8 C.F.R. § 1003.19(h)(2)(i).
[229] 8 C.F.R. § 1003.19.
[230] Matter of Spiliopoulos, 16 I. & N. Dec. 561 (BIA 1978).
[231] 8 C.F.R. § 1003.19(d).
[232] Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28, 2006) (no error for 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).
[233] See Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976) (listing criteria for consideration).
[234] See, e.g., Matter of Drysdale, 20 I. & N. Dec. 815 (BIA 1994).
[235] 8 C.F.R. § § 236(d)(3)(i), 1236(d)(3)(i).
[236] 8 C.F.R. § 236.1(d).
[237] 8 C.F.R. § § 236.1(c)(2)-(c)(8).
[238] 8 C.F.R. § 236.1(c)(8).
[239] 8 C.F.R. § § 236(d)(3)(ii), 1236(d)(3)(ii).