Immigration Bond 101

When an individual is in custody with Immigration Customs Enforcement (ICE) they may be eligible for a bond depending on a few factors. Bond is the ability to pay money to have the individual released from custody while their current case is pending. It does not mean that his case is over and he is free to go but instead he can enjoy the liberties of being outside of custody during his proceedings. Bond is not an exclusive right when it comes to Immigration.

There are two ways to obtain an Immigration bond. The first is if ICE determines you are eligible for a bond and sets a price. However, if ICE doesn’t set a bond or if they set one too high you can always ask for a bond through an Immigration Judge.

The Immigration Judge will look at the following to make his decision on whether to allow bond and at what price to set it.

  • He finds that the alien is not at flight risk and will attend all future court hearings.
  • The alien is not deemed a danger to the community and/or is rehabilitated after any crimes which might have been committed in the past.
  • That alien has relief from removal. The greater the chance for the alien to win the immigration case, the more likely the judge is to give a lower bond.

In some situations, the individual must be in mandatory detention and is not eligible for a bond. This occurs when the person has been convicted or has admitted facts to any of the following crimes.

  • a crime involving moral turpitude, unless the maximum sentence possible is one year or less and the actual sentence you received is less than six months OR if you were under 18 when you committed the crime, it was more than five years ago
  • multiple convictions where the combined sentences are five years or more of imprisonment
  • a controlled substance offense (any drug offense, including if the immigration authorities have reason to believe that you are a drug trafficker)
  • a prostitution-related offense
  • terrorist activity
  • significant human trafficking
  • money laundering.

One of the biggest perks of getting an Immigration bond is that you no longer need to reside in custody while your case is going. However, another strategic perk is that since you are no longer in custody you are now transferred to the “Non-Detained” docket which in the past has gone by slower and grants the individual more time in this country while his case is being processed.

Example:

Individual #1 is not eligible for bond therefore he is on the “Detained” docket. He will see an Immigration Judge who only deals with individuals who are detained. This docket is much faster because they are trying to settle these cases quicker due to limited availability in the detention centers. An entire case from start to finish could be over within 5 months.

Individual #2 is eligible for bond and is now placed on the “Non-Detained” docket. This individual will be seen by an Immigration Judge who handles people who are not detained. Because there are so many individuals who make bond, the docket is MUCH larger. Some cases are even set for hearings as far as 2019. Thus, buying the individual another two years in the country while his case is processing.

Today’s Tip: The Aggravated Felony and Immigration

immigrationAn “aggravated felony” conviction can be a lifetime bar to almost all forms of immigration relief. Under United States immigration laws, an aggravated felony is the highest form of criminal charge one can face and can make any non-citizen deportable, even one with legal status. Even more troubling, a crime classified as a misdemeanor under state law could be considered an aggravated felony under immigration law. Today’s tip explains a certain type of aggravated felony and how to handle those situations to avoid immigration consequences.

Under the large umbrella of aggravated felonies, the Immigration Nationality Act sub-divides crimes into multiple categories. One category is termed “crimes of violence.” These usually include assaults and aggravated assaults. While states may define these crimes differently, immigration law establishes its own definition. If the state definition of a given crime matches the immigration definition of an aggravated felony, then that charge is treated as an aggravated felony for immigration purposes. Unfortunately, this means that a person can be convicted of a misdemeanor in state court, yet that charge will be viewed as an aggravated felony in the eyes of immigration.

I hope I haven’t lost your attention just yet.

Admittedly, the world of aggravated felonies under immigration law is a highly complex area of law because it differs from state to state. One way to prevent being convicted of an aggravated felony of a crime of violence is to avoid 365 days or more in prison. What this means is, if you are charged with assault here in Texas and are sentenced to 365 days in jail, it is automatically considered an aggravated felony of a crime of violence under immigration laws. While it may sound arbitrary, if you are being convicted of a crime of violence, the one-year marker is the determining factor of whether immigration law considers the charge an aggrevated felony.

So, let’s consider a hypothetical situation. Diego has a green card thus is in the USA legally. Green card holders have the best immigration status achievable aside from being a citizen. Green card holders can only get deported if they commit aggravated felonies or other certain specific crimes established by law. Diego gets arrested in Texas for assault. He got in a fight at a bar, and now Texas is bringing criminal charges against him. Assault under Texas law can be punishable up to 1 year in jail. Let’s assume Diego is found guilty and sentenced to 365 days in jail. After Diego completes his time, Immigration Customs Enforcement will pick him up and place him in deportation proceedings because he has an aggravated felony that stems from 365 days in jail.

Now, let’s assume Diego is in the same situation, except he hired a lawyer who knows about immigration law. The lawyer should work for an outcome that does not involve 365 days of prison. For example, the lawyer could negotiate a deal for 364 days and avoid causing an aggravated felony of a crime of violence under immigration law, and Diego would not need to worry about deportation proceedings.

This is a critical factor to be mindful of when dealing with crimes of violence in a state court. Knowing this little fact can help prevent a permanent bar to immigration relief. If you have any questions regarding aggravated felonies or the cross-over between criminal and immigration laws, please feel free to contact me.

Criminal Conduct and Immigration Holds

The Criminal Justice System and Immigration Courts are two entirely different judicial proceedings, though they ultimately can be tied in together for certain defendants. When a person is in this country illegally, they are by default “removable” (the politically correct term for deportable). The truth is that the number of undocumented people in this country far exceeds the Department of Homeland Security’s (DHS) capacity to deport. So, in 2014, the DHS created a “Removal Priority System,” a ranking system for people who are to be deported based on the country’s priority to deport them. At the top of the list are people with criminal convictions.

I frequently see clients who either already have or fear an immigration hold. An immigration hold is a form of detention placed by Immigration Customs Enforcement (ICE), the immigration police arm of DHS. ICE will instruct the local jail housing the inmate not to allow them out under any circumstances until ICE comes and gets them. Remember, DHS is trying to remove people with criminal convictions. At this point, the defendant is at the mercy of DHS. Even if the defendant bonds out of jail, the jail will notify ICE who will take him or her into custody. If the defendant pleads guilty, the same will happen. The only way to remove an ICE hold is if a defendant’s case is dismissed or if he is determined not guilty. At that point, since the defendant no longer has criminal proceedings against him or her, the defendant drops to DHS’ second priority, dramatically reducing the likelihood for deportation.

I have found that in Harris County, due to the immense amount of criminal proceedings occurring daily, ICE will only apply an immigration hold if the charge is a felony or a serious misdemeanor. The reason being that serious criminals should be the highest priority of removal from this country.

If ICE does detain and transfer a defendant to immigration jail, the defendant may or may not be eligible for a bond under Immigration Nationality Act 236, depending on the criminal conviction. The Immigration Nationality Act sets the rules governing immigration proceedings, while the Texas Penal Code is what governs criminal proceedings.

Sometimes serving undocumented clients means an attorney has to face both criminal and immigration issues. Criminal convictions can have serious consequences in the immigration realm, and it’s important to have a lawyer who knows that. Always consult with an immigration attorney if the defendant is undocumented because after the criminal case, there may be an immigration case following.