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Bond Hearings: Detained by the ICE - What Is Next?

Introduction
The United States statutory law provides that, on a warrant issued by the Attorney General, a non-citizen may be taken into custody and detained pending a decision on whether the non-citizen is to be removed from the United States. This situation arises when an alien has been convicted of an aggravated felony as defined by the Immigration and Nationality Act (INA) or becomes inadmissible or deportable due to having committed a certain offense covered by the Act. The Department of Homeland Security's (DHS) Immigration and Customs Enforcement ("ICE") agency has the power to detain an inadmissible or deportable alien and remove/deport the alien if such determination has been made.

Detention by the ICE has become the nation's fastest-growing form of incarceration after Congress changed the immigration laws in 1996 and, following the September 11, 2001 attacks, passed war on terror detainee legislation, including the Detainee Treatment Act in December 2005, which bars certain detainees from bringing habeas corpus challenges (explained further) to their detention or its conditions. More than 30,000 immigrants are incarcerated in the United States on any given day. Private corporations that manage the ICE facilities in Georgia, Louisiana, Pennsylvania, Idaho, and Texas were charged with squalid conditions, prison abuse, ill treatment of prisoners, and prisoner deaths in these facilities. See Desiree Evans, Detained and Dying: Immigrant Deaths in Detention Raise Questions about Oversight of Private Prisons, Facing South, June 16, 2009. During the past several years, the ICE has also expanded significantly its worksite activities. In the fiscal year 2008, the ICE dramatically increased the amount of fines and civil judgments in worksite investigations, obtaining over $30 million. The combined fiscal year 2007 and 2006 worksite arrests averaged nearly 6 times higher than the average during the preceding four years. During its last years, the Bush Administration has been actively pursuing greater employer accountability with regard to the hiring of undocumented workers. See Monte B. Lake, How Do You Respond When Immigration and Customs Enforcement (ICE) Shows Up at Your Farm, Ranch, or Business? Mushroom News, October, 2008.

If a person has been detained by the ICE, legal assistance and representation are crucial for asserting the person's rights and seeking release from custody. A non-citizen may be arrested and detained without Miranda warnings. In the absence of legal help, self-incrimination on the part of the detainee and abuse of process on the part of the authorities are not unheard of.

Custody
The Assistant Secretary of the Bureau of Immigration and Customs Enforcement is required to take into custody any alien who: (1) is inadmissible by reason of having committed any offense that constitutes a ground of inadmissibility; (2) is deportable by reason of having committed any criminal offenses, except crimes of moral turpitude; (3) is deportable for having committed a crime of moral turpitude, on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year; or (3) is inadmissible or deportable because of terrorist activities, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

The most common offenses that can be used as grounds for removal/deportation are:
  1. drug offenses (drug possession, drug sale, or drug trafficking);
  2. sex offenses (including sexual abuse of a minor or endangering the welfare of a child);
  3. weapons possession;
  4. theft offenses/property crimes;
  5. aggravated felonies (including murder, rape, illicit trafficking in drugs, firearms, destructive devices, or explosives, or alien smuggling);
  6. crimes of moral turpitude (including credit card, visa, or passport fraud, false pretenses, forgery, blackmail, extortion, grand or petit larceny, or receiving or transporting stolen goods or other stolen property with guilty knowledge);
  7. domestic violence (including stalking).
The statutory law provides that no court may set aside any action or decision regarding the detention or release of certain aliens or the grant, revocation, or denial of bond or parole for certain aliens: the Assistant Secretary of the Bureau of Immigration and Customs Enforcement is the sole authority to hear the matter. However, the courts are in disagreement whether this statutory provision is unconstitutional on the ground that it violates due process (which includes a right to freedom from arbitrary detention), especially where the alien has not conceded removability. A district court has jurisdiction to consider a petition for habeas corpus challenging an order of deportation where the petitioner asserts a fundamental miscarriage of justice, such as the Immigration Judge's refusal to allow the petitioner to testify concerning the facts and circumstances of his/her arrest. Delayed or indefinite detention also constitutes a violation of due process and is subject to judicial review.

Bond Hearings
Due process requires that the ICE hold a bail hearing with reasonable promptness to determine whether the alien poses a flight risk or is a danger to the community. As long as the petitioner remains in custody, the bail hearing procedure must be repeated every six months if the petitioner so requests. The ICE may make a determination to release the alien on bond of $1,500 or more, or on conditional parole. To be released on bond, the alien in a custody determination must establish to the satisfaction of the Immigration Judge that he/she does not pose a risk of flight and does not present a danger to property or persons. The alien's history with the immigration authorities is a factor that a court weighs heavily in determining the risk of flight. The ICE may not provide the alien with work authorization (including an "employment authorized" endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise provided such authorization.

Prior to 1988, all individuals subject to deportation were entitled to a bond hearing, but Congress later limited the availability of discretionary relief for aggravated felons and increased the categories of aggravated felonies through the passage of laws including the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). If the respondent is removable as an aggravated felon, the Immigration Judge may have no authority to re-determine custody conditions. Certain aggravated felons taken into custody and detained can be released only if the Assistant Secretary of the Bureau of Immigration and Customs Enforcement makes this determination based on the statute providing for protection and relocation under the Witness Relocation Program.

The government may at any time revoke a bond or parole authorized for a detained alien, re-arrest the alien under the original warrant, and detain the alien. Revocation of parole and continued detention are considered justified on national security grounds and because of the risk that the alien would abscond if released, where the individual is wanted by INTERPOL due to alleged violent activities and has visited countries known to sponsor international terrorism and anti-U.S. sentiments.

Judicial Review of the ICE's Custody or Bond Decision
When the ICE has determined that an alien belongs to one of the following groups, an Immigration Judge does not have the authority to review the ICE's decision regarding the detention or release of the alien:
  1. aliens classified as "arriving aliens";
  2. aliens deportable on security or terrorism grounds;
  3. aliens subject to mandatory detention;
  4. aliens placed in exclusion proceedings;
  5. aliens with final administrative orders of removal.
It is highly advisable to seek legal counsel before the ICE makes this determination and the process shifts into high gear. However, opportunities for relief may exist even at advanced stages of the proceedings and should be pursued with all means available. Although an Immigration Judge does not have jurisdiction to re-determine custody and/or bond conditions for the above groups, the Judge does have jurisdiction to review whether the ICE has correctly determined that the alien does, in fact, belong to one of these groups. The Immigration Judge's unfavorable decision can be appealed to the next administrative level, the Board of Immigration Appeals (BIA), which, in its turn, determines whether the Judge has correctly applied the law to the facts of the case.


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