Q. Who can arrest non-citizens for suspected immigration violations?
A A wide range of immigration officials have the power to arrest and detain non-citizens. Immigration officials can arrest a non-citizen without a warrant if they have “reason to believe that the alien … is in the United States in violation of any [immigration] kw or regulation and is likely to escape before a warrant can be obtained for his arrest.”
Q. What happens after a non-citizen is arrested on a suspected immigration law violation? Upon arrest for an alleged immigration violation, a non citizen should be examined “without unnecessary delay “by an immigration officer on his or her right to enter or remain in die United States. The officer examining the individual after arrest should not be the arresting officer unless another qualifying officer is not available and taking die individual before another officer will cause unnecessary delay If the examining officer finds prima facie evidence that die person arrested has violated immigration laws, then the officer will place the non-citizen in removal proceedings or institute expedited removal, if applicable.
If ICE initiates removal proceedings, it should notify the non-citizen of the reasons for his or her arrest. The examining officer also should inform the non-citizen of the right to counsel at no expense to the government and provide a list of free legal service providers. The officer also should warn the person that any statement made “may be used against him or her in a subsequent proceeding. “
ICE may hold a non-citizen arrested without a warrant for 48 hours, or longer “in the event of emergency or other extraordinary circumstance. ” On or before the conclusion of this period ICE must determine if this individual will continue to be detained or released on bond or on his/her own recognizance. It also must decide whether to issue a Notice to Appear (NTA) and an arrest warrant.
Q. When are non-citizens entitled to be released?
A The Immigration and Nationality Act (INA) provides for the release of non-citizens arrested for immigration violations on bond or on that own recognizance except for those subject to mandatory detention due to criminal or terrorist grounds specified in the Immigration & Nationality Act (INA). The Attorney General may release non-citizens on a minimum bond of $1,500 or may grant conditional parole. However, bond or parole may be revoked at any time.
Q. How does ICE determine who should be released and under what conditions?
A The local ICE office makes the initial custody and bond determination. A long as the non citizen is not subject to mandatory detention due to criminal or terrorist grounds specified in INA, the arrested individual may be released on bond or on his or her own recognizance.
In order to he released a non-citizen “must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding. ” The factors commonly considered in making the determination to release and/or set bond include:
1. Local family ties;
2. Prior arrests, convictions, appearances at hearings;
3. Membership in community organization;
4. Manner of entry and length of time in the US.;
5. Immoral acts or participation in subversive aerivi ties;
6. Financial ability to post bond
Q. Can a non-citizen challenge to ICE’s custody/ bond determination?
A Yes. Subject to significant exceptions discussed in the next question and answer, after the initial custody and/or bond determination by ICE the non-citizen may apply for bond redetermination by an Immigration Judge (Ij) at any time until a removal order becomes final A request for custody or bond redetermination may be made orally in writing or by telephone, if the IJ permits in his or her discretion. If the non-citizen is detained, the request for custody/ bond redetermination should be made to the Immigration Court that has jurisdiction over the place of detention. If the non-citizen is not detained, the request should be made to the Immigration Court that has administrative control over the case or, if no court has been designated, to the Office of the Chief Immigration Judge for designation of an appropriate Immigration Court.
Q. Over what people does an IJ not have authority to review ICE’s custody and/or bond decision?
A The regulations permit an IJ from reviewing ICE’s custody and/or bond determination of the following people:
1. Those considered to “arriving aliens”
2. Those “described in ” the terrorism and security related ground of deportability;
3. Those subject to mandatory detention;
4. Those in exclusion proceedings;
5. Those with final administrative orders of removal
Even though an IJ does not have jurisdiction to re-determine custody and/or bond for the above groups, the IJ does have jurisdiction to review whether ICE correctly determined diat a non-citizen does in fact bebng to one of diese groups.
Q. What if a non-citizen has been released from ICE custody but wants to challenge die conditions of release?
A A non-citizen who has been released from detention but is seeking to lower the bond or otherwise ease the conditions of his or her rekase, may file a request to ameliorate the terms of release with the Immigration Court within (7) seven days of release. Even if doe seven day period has expired, however, the non-citizen may nonetheless ask ICE to reconsider the conditions of release. If ICE refuses to reconsider, the non-citizen my appeal the decision directly to the BIA within 10 days of ICE’s decision.
Q. Can a non-citizen work with authorization after release from immigration custody?
A A non-citizen who is a lawful permanent resident is work-authorized incident to status, even if he/she is released from custody and is in removal proceedings. A non-citizen who is a non-LPR also may be authorized to work.
Q. Can a non-citizen request the Immigration Court to redetermine custody and/or bond even though ICE has not file a Notice to Appear with the Immigration Court?
A Yes. An IJ can conduct a bond hearing even if ICE has not filed a Notice to Appear (NTA) with the Immigration Court. This is important because ICE may delay issuing the NTA, or may issue the NTA but then delay filing it with the Immigration Court.
Q. How do bond proceedings differ from removal proceedings?
A Bond proceedings are separate from, and not part of, removal proceedings. Unlike removal proceedings, bond hearings are not usually recorded by the IJ. Also, the IJ can conduct a bond hearing even if ICE did not file a charging document. In a bond hearing the non-citizen has the burden of proof and must show that he/she does not present a danger to persons or property, is not a threat to national security, and does not pose a risk of flight. Furthermore, the IJ may consider “any information that is available to die Immigration Judge or that is presented to him or her by the alien or the Service. ” While the IJ may explain the reasons for his or her decision orally the written decision often is cursory For these reasons, notes of the bond hearing will be helpful after if there is an appeal of the IJs decision to the BlA
Q. Can a non-citizen appeal an IJs custody and/or bond redetermination?
A Either the non-citizen or ICE can appeal the IJ’s custody and/or bond determination to the BIA within 30 days of the IJ’s decision.
Q. If an IJ orders the release or lowers the bond required for release, can ICE stay that order during an appeal to the BIA?
A. An IJ’s order authorizing release may be stayed in any case where ICE had originally:
1. Determined that the non-citizen should not be released; or
2. Set a bond of $ 1 0,000 or more.
In order for the automatic stay to kick in, however, ICE must file an EOIR-43 Nonce of Service Intent to Appeal Custody Determination within one day of the IR’s order. Some have found the automatic stay provision unconstitutional as applied in cases before them.
Even if the IJ’s order is not automatically stayed, the BIA may stay the IJ’s order pending the outcome of ICE’s appeal, if ICE requests the Board to stay the IJ’s order when ICE appeals. ICE can request an emergency stay from the Board at any time.
Courtesy: American Immigration Law Foundation (AILF), Practice Advisory, July 2008.
