Does someone in immigration custody have a right to release on bond?

Only some immigrants held in custody during removal proceedings have the right to be released on bond. Under federal immigration law, many immigrants can be held in "mandatory detention" during their case. Immigrants who are subject to mandatory detention must remain in custody during their cases.

The issue of who is eligible for bond is very complicated. Some types of criminal convictions make an immigrant not eligible for bond. A detained immigrant should talk to an immigration lawyer about whether they are eligible for bond.

Who decides if a detained immigrant gets bond?

An ICE agent will make the first decision about whether to offer bond to a detained immigrant. When immigrants are taken into custody, ICE will give them a notice called an I-286 notice. This notice says if the immigrant is eligible for bond. If ICE decides that they are eligible, it will decide the amount of bond. If the ICE agent does not set a bond or set a high bond, the detained immigrant can ask an Immigration Judge to give a bond hearing. The judge may consider setting a bond or lowering the amount that ICE set.

How does an immigrant request a bond hearing in front of an immigration judge?

There are three ways an immigrant can request a bond hearing in front of an Immigration Judge (IJ):

• By checking the box on Form I-286, Notice of Custody Determination, saying that they would like an IJ to review ICE’s custody determination;
• By orally asking the IJ for a bond hearing at their first immigration court date; or
• By filing a written motion for a bond hearing at the Chicago Immigration Court. The court is located at 525 W. Van Buren St. Ste. 500, Chicago, IL 60607.

If the immigrant decides to file a written motion at the Chicago Immigration Court, they should serve a copy of the motion on the ICE Office of the Chief Counsel. The ICE office is located in the same building, at Suite 701. They should state in the motion that they have served the Office of the Chief Counsel. The motion should meet all requirements for filings in the Immigration Court. These requirements are in Chapter 3 of the Immigration Court Practice Manual.

What kind of [no-lexicon]evidence[/no-lexicon] should an immigrant present in their bond hearing?

An immigrant should submit evidence in the bond hearing that shows she is not: 

• a flight risk,
• a danger to the community, or a
• risk to the security of the United States. 

The IJ will give weight to whether the immigrant has any way to try to remain lawfully in the United States. IJs can consider almost any type of evidence in a bond hearing. An immigrant can present their or another persons’ testimony in support of their bond motion.

What type of documents can an immigrant submit that might lead the IJ to set a low bond?

An immigrant can submit any of the following documents that apply to their case:

• Evidence of rehabilitation from a criminal offense. This could be a letter from a counselor or a parole officer
• For individuals with alcohol-related offenses, such as driving under the influence, proof of alcohol treatment, including classes, AA meetings, and in-patient and out-patient programs
• A certified statement of disposition that shows probation was completed
• Any certificates for classes or degrees completed while in jail
• A letter from an employer showing that the immigrant has a job waiting for her
• The deed to a home and proof of mortgage payment, or a rental lease
• Evidence of ownership of other property, such as a car
• A marriage certificate
• Birth certificates of children
• Proof of child support
• Educational degrees or certificates
• Letters from community and religious leaders, neighbors, friends or family members, with copies of the writers’ valid government IDs or notarization when possible
• Copies of income tax returns, showing that the immigrant has paid taxes using a valid ITIN or social security number

Note: Any foreign language documents submitted in support of a bond motion must be translated into English. They must be accompanied by a signed and dated certificate of translation. This certificate must state that the translator is competent in both the foreign language and English and has wholly and accurately translated the document.

Can an immigrant [no-lexicon]appeal[/no-lexicon] an IJ's bond decision?

Yes. An immigrant can appeal by filing a form EOIR-26. 

The appeal must be received by the Board of Immigration Appeals in Falls Church, VA within 30 days of the bond decision.​​

Can the immigrant get the money back?

At the end of the case, the immigrant will get this money back. However, they must do all of the following:

• Go to every court appearance and any other appointment set by ICE
• Do not have any new criminal convictions
• If ordered to depart the United States, comply with this order

Paying this bond guarantees the immigrant will show up for all of their hearings. Hence, they do not need to keep the immigrant in the detention center. The minimum bond amount is $1,500. The bond amount must be paid in full in one payment.

Does the immigrant have to pay the entire bond, or just part of it?

The immigrant will have to pay the entire amount of bond set by the IJ. Some bonding companies require the immigrant to pay part of the bond and then pay the remainder. Bonding companies charge a fee for this service.

What can an immigrant do if they are held in detention without bond and their removal case is taking a very long time?

Some courts have said that it is against the constitution to hold somebody in mandatory detention if their removal case is taking a long time. If an immigrant is being held in detention without bond for a very long time, they can seek release by filing a habeas corpus action in federal court. The rules for filing habeas corpus petitions are complicated, and it is best to try to get an attorney to file the habeas corpus petition.