Detained Without Bond, Now What?

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A foreign national can come in contact with U.S. Immigration and Customs Enforcement (ICE) through the United States criminal justice system. This can happen whether the foreign national is in the country lawfully or unlawfully. This article will focus on those foreign nationals that have been admitted to the United States as lawful permanent residents but the processes discussed are similar for those who are present unlawfully as well.

A lawful permanent resident may come in contact with ICE if they commit certain crimes that render them removable from the United States. In fact, a lawful permanent resident can be deported from the United States if they are found to have committed certain crimes that make them deportable and the Immigration Judge orders them removed. These crimes are enumerated in the Immigration and Nationality Act and include: aggravated felonies, crimes involving moral turpitude, controlled substance offenses, firearms offenses, and domestic violence or child abuse. The list of crimes is quite extensive but, for example, a lawful permanent resident can be arrested by local police for possession of marijuana. If that individual had more than 30 grams of marijuana in his possession then ICE can place a hold on him or her. This means that once the person is released from local police custody, ICE can step in and detain them further.

A bond determination hearing will take place about 48 hours after ICE takes custody of the individual. This is very similar to a bond hearing in a criminal case. Unfortunately, some crimes are labeled “mandatory detention offenses” under immigration law in which there is no opportunity for a bond. The foreign national must remain detained throughout the pendency of his immigration proceedings. Crimes that will subject a foreign national to mandatory detention include: two or more crimes involving moral turpitude, an aggravated felony, a firearms offense, or a controlled substance conviction.

The good news is that in many cases mandatory detention can be challenged. The result being that the foreign national becomes eligible for a bond and can remain free during the pendency of his or her proceedings with immigration. In order to challenge the government’s finding that the foreign national is subject to mandatory detention an attorney must file a motion requesting a Matter of Joseph hearing before the Immigration Judge. Typically, an Immigration Judge has no power to determine whether or not a foreign national should be detained. However, in a Matter of Joseph hearing the Immigration Judge can determine that the government is substantially unlikely to prevail on the charge of removability that is the basis for the mandatory detention.

At the Matter of Joseph hearing, the attorney representing the foreign national has to compare the state statute under which the individual was convicted with the corresponding federal statute. If the state statute includes criminal conduct that is not criminalized under the federal statute then the Judge can look to the record of conviction (pleadings, jury instructions, etc.) to determine if the crime falls under what is criminalized by the federal statute. This is a highly complex area of law that requires careful analysis by an experienced immigration attorney. It is particularly of significant importance if the foreign national is being charged with having committed an aggravated felony. If the Immigration Judge agrees that you have committed an aggravated felony this usually forecloses any form of relief and will prevent a foreign national from being allowed to return to the United States in the furture.

If the court determines that the foreign national is not subject to mandatory detention then the Judge will schedule a bond redetermination hearing where a bond amount will be set and, upon payment, the foreign national will be released. At the bond hearing the Judge will take into consideration any danger the foreign national poses to himself or society as well as the flight risk, in other words the chances that the foreign national will not appear at his scheduled court date. To make a bond determination the Judge will look at any convictions, family ties, and employment history.

The next step in the processes is applying for relief from removal. Depending on the facts of the case, a lawful permanent resident may be eligible for asylum or cancellation of removal. Cancellation of removal is the more likely form of relief among lawful permanent residents that find themselves in removal proceedings. In order to be eligible for cancellation of removal the foreign national must have: 1) been a permanent resident for at least five years; 2) have at least 7 years of continuous residence in the United States after having been lawfully admitted in any status; and 3) must not have been convicted of an aggravated felony.