By Attorneys Michael Bhotiwihok and Nancy E. Miller

 A bond hearing is a principle of procedural due process but release on bond is not a guaranteed right.  Many immigrant detainees are routinely denied bond at detention centers.

Authority to set bonds for immigrant detainees is shared between the Department of Homeland Security (“DHS”) and Immigration Judges.  DHS officers make the initial determination of whether the alien is bondable and, if so, in what amount.  If the alien does not agree with the officer’s determinations, he can seek bond redetermination before an immigration judge.  The immigrant must show that he is not a flight risk or danger to the community in order to be released.  However, immigrant detainees subject to mandatory detention and arriving aliens are ineligible for bond.

An immigrant detainee’s criminal record may subject him to mandatory detention.  The Immigration and Nationality Act requires DHS to take immigrants into custody and hold them without bond if convicted of certain removable offenses and released from jail after October 8, 1998.  Mandatory detention generally applies to immigrants convicted of two crimes involving moral turpitude, an aggravated felony, a controlled substance offense, or a firearms offense.  Once mandatory detention is established, the immigrant detainee remains in custody until the conclusion of his case before the Immigration Judge. Immigrants may be detained for prolonged periods of time while their removal cases are pending.  Being held in custody makes it difficult to defend against deportation. Since many detention centers are located in rural, isolated areas, attorney representation and family visitation may be hindered.

Despite the Supreme Court having held that mandatory detention is constitutional, the United States Court of Appeals for the Ninth Circuit (“9th Circuit”) has addressed its dissatisfaction with the length of time aliens subject to mandatory detention spend in custody.  In Casas-Catrillian v. DHS and Prieto-Romero v. Clark, the 9thCircuit restricted the scope of mandatory detention and expanded the bond hearing authority of Immigration Judges, regarding immigrant detainees with final administrative removal orders.

In a different yet similar vein, Rodriguez v. Hayes further changes the stringent, harsh mandatory detention standard set out in statute and followed by DHS.  Rodriguez is a class action lawsuit that involves immigrant detainees subject to prolonged detention without a bond hearing. Rodriguez establishes the procedural due process right to a bond hearing for immigrant detainees in DHS custody for six months or more.  Specifically, bond hearings are required for all mandatory detainees and detained asylum seekers who have been detained for at least six months in the Los Angeles metropolitan area.

Detained aliens seek bond relief as soon as they are taken into custody.  If they are found ineligible for bond, they are required to remain in custody for the duration of their case.  Rodriguez allows them to revisit the bond issue solely on the basis of the fact that they have been held in custody with a pending case for what the court has deemed to be an unreasonable amount of time.  As with all bond hearings, the alien has the burden of showing heis not a flight risk or danger to the community in order for bond to be granted.    Before Rodriguez, the best challenge to a mandatory detention determination was through a Joseph Bond Hearing.  Joseph requires the detainee show that DHS is “substantially unlikely to prevail on the charge of removability” against him.  The main issue in these hearings is whether the government is correct in asserting that the alien has been convicted of a crime that leads to mandatory detention.  The alien bears the burden of proving that the government is wrong. 

In contrast, at a Rodriguez Hearing, the burden is on DHS to prove by clear and convincing evidence that continuing to detain the immigrant is justified based on his risk of flight or danger to the community. Otherwise, the Immigration Judge must release the immigrant detainee on reasonable conditions of supervision.  What is most significant about the Rodriguez Bond Hearing is that immigrant detainees previously subject to mandatory detention have an opportunity to argue for their release at a bond hearing before an Immigration Judge.

Of course, any immigrant being held in immigration custody should seek competent legal counsel to determine whether he qualifies for bond.  Even if he has previously been told that he is not bondable, he and his family should revisit this issue by consulting with a knowledgeable and experienced immigration attorney.  Based on Rodriguez, he may be eligible for bond, even if he previously was not.

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