By Attorney Farhad Sethna ©2014
When is an alien placed in ICE custody?
An alien can be placed in ICE (Immigration and Customs Enforcement) custody for any of the following:
• Being illegally present in the US;
• Entering the US illegally;
• Committing a crime which is considered to be violent or requires mandatory detention under the Immigration Act;
• Being subject to a final order of removal;
• Having exhausted all his or her appeals;
• Having violated the conditions of any release imposed by ICE; and
• Is considered to be a “threat to the community” or “flight risk”.
When can an alien request a bond hearing?
When ICE arrests an alien and detains him, ICE has two options:
• ICE can either release the alien on payment of a bond or sometimes, even without a bond; or
• ICE can decline to release the alien on bond. The alien may then choose to have his or her retention reviewed by an immigration judge. The immigration judge can then order bond. If the alien pays the bond (which is 100% cash bond, not 10% as with state or municipal courts), the alien will be released.
How is a bond hearing conducted?
In a detained bond hearing, the hearing is usually conducted by televideo (video with audio), since the detained alien is typically in a ICE detention facility, which may be many miles away from the court.
In some cases, the ICE detention facility is co-exists with the court, for example at ICE detention locations including Florence, Arizona; Oakdale, Louisiana; Batavia, New York; York, Pennsylvania.
At the hearing, the immigration judge first asks the alien questions. Next, the government ICE attorney asks the alien questions. Finally, if the alien is represented, his or her representative gets a chance to ask the alien questions and cover issues in order to make a better case for the detained alien’s release from custody.
What type of questions are asked?
Typically, immigration judges and ICE attorneys will ask questions about the alien:
• Prior immigration history; any prior entries to the USA; any prior deportations or returns to the home country
• Time, manner and place of entry to the United States; any departures from the United States
• Prior criminal offenses including DUI’s;
• Family members that the alien lives with;
• Location or address for the alien when he is not in detention;
• Alien’s employment, earnings, etc.; alien’s use of false documents or identities to obtain a job, driver’s license, etc.
• Potential avenues for relief or fear felt by the alien (this to determine if the alien has any possible relief from removal, which would make him or her more amenable to continuing to attend immigration court hearings if released);
• The alien’s propensity to commit acts of violence or to be a danger to himself or persons around him or a family; and
• Possibility that the alien might flee the jurisdiction of the court if released (ie: not appear for future hearings if released).
Should a detained alien have an attorney, and if so, what should the attorney prepare for?
In my professional opinion, an alien should have a qualified, experienced immigration attorney to represent him and present his case at a bond hearing. A well prepared attorney will have interviewed the alien carefully, and obtained answers to all of the above questions. If the alien has a prior immigration record, be sure that the government attorney will probably have that record and will definitely introduce it to the judge. The same goes for the criminal record. Therefore, an alien should not lie on the stand, because any lie will be construed by the immigration judge as an example of bad faith, and will make bond either very hard or impossible to obtain.
Additionally, a well prepared alien should also be able to discuss any living arrangements, explain any prior immigration or criminal convictions, and explain any possible applications for relief.
ICE’s cross examination can be quite brutal at times. It will include questions about the alien’s employment, use of fake documents, or any false claims to US citizenship. A good attorney should also prepare the alien client for questions along these lines.
An important note to both aliens and their attorneys: Be very careful about asking questions and providing answers about facts and circumstances on cases that are still pending in state or federal court. An alien may easily incriminate himself or give answers that could later be used against him in another legal proceeding. Remember the 5th amendment right against self-incrimination.
Many attorneys go into an immigration court bond hearing thinking it will be a simple affair like a bond hearing at a municipal or county court. That is certainly not the case, and they will be very sadly mistaken if they take such a cavalier attitude. Immigration court bond hearings are detailed and involved proceedings. The immigration attorney and the client must be aware of and prepare for these difficulties. Coupled with the difficulty and depth of the questions is the fact that the alien is far away from the court, appears by televideo, and very often, is filtered through an interpreter.
Therefore, the detained alien and his representative attorney are well advised to meet before the bond hearing and conduct a detailed preparation for the questions that might be anticipated.
For additional articles on crimes with immigration consequences, procedures in immigration court, and applications for relief, please visit my blog, at www.immigration-america.com.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.