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Release from DHS Custody
Immigrants who have been arrested by Immigration and Customs Enforcement may often obtain a release from custody. Our firm has extensive experience representing detainees in custody determinations before ICE and in custody hearings before the Immigration Courts, allowing them to return to their loved ones while they defend against their deportation.
When an immigrant is detained by U.S. Immigration and Customs Enforcement (“ICE”), she may feel that she has come to the end of the road. But, detention by ICE is just the beginning of a long process in which the immigrant may exercise certain rights and privileges, including the right to apply for immigration status before being deported, and the possibility to request release from custody.
When an immigrant is detained by ICE, he will be transported to the local office of Enforcement and Removal Operations for an interview. Officers will investigate his background, including any criminal history or prior problems with immigration authorities. If the immigrant is determined to be in the United States in violation of law, the officer will request that the he voluntarily depart the United States. Alternatively, the immigrant may request a hearing before an Immigration Judge to determine whether she may remain in the United States.
Assuming the immigrant does not have a prior deportation order, if the immigrant requests a hearing the officer will prepare and serve a “Notice to Appear,” which explains why ICE believes the immigrant may be removed (for example, for entry without permission), and informs him of the time of her hearing.
Next, the officer will make a “custody determination.” The officer may decide that the immigrant will remain detained during the deportation proceeding, he may release the immigrant with a promise to go to court (“own recognizance”), or he may set a bond (bail) amount to guarantee the immigrant will go to court. More recently, officers have used electronic monitoring in which the immigrant wears a GPS tracking ankle bracelet and reports regularly, but pays no bond.
Often, the initial custody decision is not favorable to the immigrant. In those cases, the immigrant has a right to request a “custody redetermination hearing” before an immigration judge. During the hearing, a neutral judge will consider the immigrant’s request for release. The judge may hear witnesses and testimony from the immigrant himself in considering the case.
In considering a request for release from custody, ICE and the immigration judge determine whether the immigrant is a flight risk and whether she would be a danger to the community. A history of violence against people and property is a factor suggesting the immigrant is a danger to the community. Eligibility for immigration benefits is often a key factor suggesting the immigrant will not flee from authorities. When any negative factor is present, the immigrant should present other favorable evidence to counterbalance the factor.
Bonds paid to the government are not the same as fines. A bond is money deposited with the government to guarantee a promise. In this case, the immigrant promises to go to all court hearings. When the immigrant is granted legal status, or leaves the United States, the bond money is returned to the person who deposited it (the “obligor”). If money is a problem, many families turn to bond agencies for financing of bonds. Typically, the bond agency charges a fee of from 10% to 15% of the bond to lend the bond money. Some form of collateral is required (i.e., title to a house or in some cases credit cards). When the bond is satisfied, the government returns the money to the bond agency. The bond agency retains the 10% or 15% paid by the family as a fee for its service.
Few things are as stressful as being detained and separated from a loved one. The Law Office of Robert L. Lewis has years of experience representing immigrants in requests for release from custody. Our attorneys respond immediately to our client’s needs to minimize the time they must spend detained and to maximize the chances they are released under favorable terms. In addition to representing detained immigrants in Northern California, we often represent immigrants living in Northern California who are transferred to Arizona detention centers, through our close collaboration with local counsel. If your relative is detained by ICE, the best thing to do is tell him or her to ask for a hearing and to consult with an attorney knowledgeable in immigration law immediately.