Bond is the federal immigration equivalent to bail, as commonly seen in criminal proceedings. Unlike criminal proceedings, courts have found that not everyone is entitled to an immediate bond, but there are ways you can increase your chances at winning one.
Generally, a detained individual will have a bond hearing at their first master calendar hearing. This is not immediate and sometimes individuals must wait a month or longer before their first bond hearing.
The Bond Hearing
At the bond hearing, the judge will first need to determine if he or she has the authority to release the detained individual on bond. Some individuals are subject to mandatory detention and are not eligible for bond (with the exception of a Rodriguez bond in certain jurisdictions). The manner in which the individual came into ICE custody and the type of crime are some factors considered.
At a bond hearing, two issues are considered:
- Flight risk
In order to win a bond hearing, the judge must be satisfied that you are not a danger to the community and that you do not pose a "flight risk".
The judge will first look at your convictions, if any. If you were recently convicted of a crime where people may get hurt, such as a DUI, the judge is likely to find that you are a danger to the community.
Factors the judge will consider are:
- The length of time since the conviction
- Repeat convictions of dangerous crimes
- Evidence to show that you are a changed person and learned from your mistakes
To prove this, the judge will look at:
- Certificates of achievement
- Attendance in counseling courses, such as –
- Alcoholics Anonymous (AA)
- Courses for anger management
- Domestic violence treatment courses
- And other similar counseling
In the absence of these types of evidence, letters from friends and family discussing how you are changed person and are not a danger to the community are helpful.
First, the term flight risk does not mean that you will leave the country. Obviously, if you wanted to leave the country, there would be no point to fighting your deportation. The judge wants to know that you will continue attending all immigration court hearings, even if you are out of custody and released on bond.
To prove this, show evidence of the following:
- Past cooperation with immigration
- Relations with close family members, such as a spouse or parent who have lawful immigration status
- Showing that you have a solution to immigration court, to demonstrate that you can win your deportation case
In a bond hearing, like all other hearings in immigration court, credibility is key. Judges don't like liars, or people who do not take responsibility for past bad conduct.
What Is the Hernandez Bond?
The "Hernandez Bond" is a new procedure for determining the bond amount for immigrants in removal proceedings. It is a Ninth Circuit class action lawsuit titled Hernandez v. Sessions which seeks to allow for reasonable bonds.
A Hernandez Bond requires the judge to apply the same standards in criminal proceedings when determining the bail amount. For example, immigrants in deportation now can have their family's financial status to be taken into consideration by the judge. This is based on the legal concept the keeping immigrants detained because they cannot afford to pay the bail is unconstitutional
This lawsuit is not nationwide and is currently in the Ninth Circuit. The following states are currently required to follow the Hernandez requirements: Alaska, Washington, Oregon, California, Arizona, Nevada, Idaho, and Montana.
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