At the Immigration Court last week, the Judge asked a
lawyer if he wanted a bond hearing. The lawyer said, “No, I am waiving it.”
When my turn to came to be asked, I replied “Yes.” The Judge set a bond hearing
date for next week. Our alien clients were under mandatory detention.
What is a bond hearing? When an alien is arrested by
immigration authorities, he is given Form I-286 which states that pending final
determination by the immigration judge, you shall be: [ ] detained in the custody of the Department
of Homeland Security, [ ] released under
bond in the amount of $____, or [ ]
released on your own recognizance (released without putting up a bond). The
arresting officer’s supervisor will put a check mark on which option applies.
The alien will further be told: [ ]
you may request a review of this determination by an immigration judge, or
[ ] you may not request a review of this
determination by an immigration judge because the Immigration and Nationality
Act prohibits your release from custody (meaning the alien is subject to
mandatory detention). The supervisor will also check which option is available
to the alien.
A “bond hearing” means that an alien may request an
immigration judge to review the legality of his detention. So why should an
alien waive or pass up an opportunity to be heard and possibly obtain his
release on bond or on his own recognizance?
Aliens subject to
mandatory detention
The Immigration and Nationality Act, Section 236(c), 8 USC
Section 1226(c) provides for the mandatory detention of criminal aliens. Mandatory detention under Section
1226(c) applies to aliens who are inadmissible on account of having committed a
crime involving moral turpitude or a controlled substance offense, on account
of having multiple criminal convictions with an aggregate sentence of five
years or more of confinement, on account of connections to drug trafficking,
prostitution, money laundering, or human trafficking, on account of having
carried out severe violations of religious freedom while serving as a foreign
government official, or on account of having been involved in serious criminal
activity and asserting immunity from prosecution; aliens who are deportable on
account of having been convicted of two or more crimes involving moral
turpitude, an aggravated felony, a controlled substance offense, certain
firearm-related offenses, or certain other miscellaneous crimes; aliens who are
deportable on account of having committed a crime of moral turpitude within a
certain amount of time since their date of admission for which a sentence of
one year or longer has been imposed; and aliens who are inadmissible or
deportable because of connections to terrorism. See 8 U.S.C. § 1226(c)
(cross-referencing 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)(A)(ii),
1227(a)(2)(A)(iii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D),
1227(a)(2)(A)(i), 1182(a)(3)(B), 1227(a)(4)(B)).
Bond hearing for
aliens mandatorily detained
Many believe that once an alien is subject to mandatory
detention, there is no hope for release until the removal proceedings are
decided in favor of the alien, which could take years. In the Casas case, he was
detained for seven years. In the Ramiro case, he was detained for four years.
There are aliens who were never imprisoned but merely given probation for their
underlying criminal offenses, yet they have been placed in mandatory detention
for years.
In a recent case decided by the Court of Appeals, Ninth
Circuit, it was held that an alien who has been subjected to prolonged
detention (more than 180 days) is entitled to an individualized bond hearing by
an immigration judge in which to contest the necessity of his continued
detention. At the hearing, the government must prove by clear and convincing
evidence that the alien is a flight risk or a danger to public safety to
justify the alien’s continued detention. If the government fails to do so, the
immigration judge shall release the alien on reasonable conditions of
supervision, including electronic monitoring if necessary. Rodriguez v.
Robbins, No. 12-56734, 04/16/13 (9th Cir. 2013).
(Atty. Tipon has a
Master of Laws degree from Yale Law School and a Bachelor of Laws degree from
the University of the Philippines. He specializes in immigration law and
criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel.
(808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal,
Ilocos Sur. He served as an Immigration Officer. He is co-author of
“Immigration Law Service, 1st ed.,” an 8-volume practice guide for
immigration officers and lawyers. Listen to the most funny, interesting, and
useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30
a.m. This article is a general overview of the subject matter discussed and is
not intended as legal advice. No warranty is made by the writer or publisher as
to its completeness or correctness at the time of publication. No
attorney-client relationship is established between the writer and readers
relying upon and/or acting pursuant to the contents of this article.)
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