ICE Detention and Bond
The ICE San Francisco Field Office (including the Sacramento, San Jose, and Bakersfield sub-offices) routinely detains persons transferred into its custody from local jails or state prison. It does so even where the criminal charges were dismissed or were relatively minor, such as driving without a license or being drunk in public. ICE offers bond to noncitizens who have only a relatively minor criminal history. ICE detains without bond those noncitizens who have a more serious history, including anyone who has a recent driving under the influence (DUI/DWI) arrest or conviction.
Noncitizens should seek the assistance of an experienced immigration lawyer immediately if they are in state or local custody. An attorney from our firm can contact the appropriate deportation officer and argue for a low bond amount even before transfer into ICE custody. We then can assist family members with posting the bond immediately, so that the client does not need to spend even one night in immigration detention. This is important because the client may be transferred to Los Angeles, Phoenix, or even farther away if ICE does not have enough bedspace to hold the person overnight locally.
For noncitizens with more serious charges who are still legally eligible for bond (for example, persons with a DUI, misdemeanor theft, etc.), it may be necessary to have a bond redetermination hearing before an immigration judge. We will request that hearing immediately upon the client's transfer to ICE if the deportation officer denies bond or sets a bond that is too high.
Custody and Bond Redetermination Hearings
In many cases, an immigration judge may review and modify ICE's decision regarding custody and bond. We will quickly gather and present the evidence needed to support a favorable decision by the immigration judge. That evidence includes proof of family and employment ties, financial resources, eligibility to apply for lawful status, and good character letters. We also will help the client prepare to testify in the bond hearing. These hearings often happen within a week or two of detention by ICE, so it is important to hire a lawyer as soon as possible. Immediate filing of a bond redetermination request may also prevent the client's transfer out of the Northern California area.
In addition to representing clients before the San Francisco Immigration Court, we also represent clients in bond hearings in other courts, including at the Northwest Detention Center in Tacoma, Washington, and the Florence Detention Center in Arizona. We can appear by telephone in those cases to minimize expense to the client.
Contesting Mandatory Detention
Certain types of convictions listed under section 236(c) of the Immigration and Nationality Act (INA) result in mandatory detention in removal proceedings if the person was released from criminal custody after October 9, 1998. Mandatory detention applies to noncitizens who are inadmissible for a criminal conviction or who are deportable for an aggravated felony, drug offense, firearms offense, 2 or more crimes of moral turpitude, a single crime of moral turpitude that resulted in a sentence to a year or more, or miscellaneous other convictions. ICE rarely offers bond in these cases, and immigration judges have no jurisdiction to review the denial (or amount) of bond if the person is subject to 236(c).
However, an immigration judge can review whether the person actually is subject to 236(c) by conducting what is known as a Joseph hearing (named after Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)). A person is not subject to mandatory detention if the immigration judge determines ICE is substantially unlikely to prevail in establishing that he or she is inadmissible or deportable under one of the grounds listed in 236(c). Our firm will evaluate whether there are any potential legal arguments against mandatory detention and argue them to the judge.
Constitutional Challenges to Prolonged Detention
In some cases, detention during the removal proceedings has greatly exceeded the noncitizen's original jail sentence for the underlying crime, sometimes by several years. The federal courts have responded by recognizing constitutional limits on the length of indefinite detention during removal proceedings. For the most recent opinions on immigration detention from the Supreme Court and the U.S. Court of Appeals for the Ninth Circuit, visit my blog at crimeandimmigrationlawyer.com