If you’re worried about being detained by ICE, you’re probably also wondering, “Do I qualify to get an immigration bond if I have a criminal record?”
The answer to this question is maybe. Not everyone will qualify for a bond. Knowing if you will have issues qualifying for a bond is important – you need to know what issues you might face if you’re detailed. You also can start gathering information and evidence now that may help in your request for a bond.
It's important to know that even if you are a permanent resident, you may be detained and placed in removal proceedings. This may occur upon your return if you travel internationally, or it may happen if your N-400 is denied and you have a criminal history that makes you deportable.
Do I Qualify to Get an Immigration Bond if I Have a Criminal Record?
- You do not qualify for a bond if you are subject to mandatory detention due to certain final criminal convictions that you have.
- If there is a question about whether you are actually subject to mandatory detention, you can request a special hearing on this issue (called a “Joseph Hearing”). During this hearing, the Immigration Judge will decide if you are subject to mandatory detention. If the judge decides that you are not, you will then become eligible for a bond.
- You may not be eligible for a bond if you entered the United States unlawfully and never obtained lawful status in the United States and have a final conviction of any of the following crimes:
- A crime of moral turpitude
- Any offense related to a controlled substance
- Two or more offenses for which you received a total sentence of 5 years or more;
- Drug trafficking offenses
- Prostitution or hiring a prostitute; or
- Terrorist activities
What factors are considered when deciding if I qualify for an immigration bond?
An Immigration Judge or the Board of Immigration consider the following factors.
- Whether you are a danger to persons or property.
- When an Immigration Judge determines whether you are a danger to people or property in bond proceedings, the nature of a criminal offense and the specific circumstances surrounding your conduct will both be considered. The judge will also consider arrests and convictions, as well as the amount of time that has passed since any arrests or convictions. If more time has passed since an arrest or conviction took place, this may help show that you are not a danger to the community.
- Whether you are a threat to national security
- Whether you pose a flight risk.
- An Immigration Judge will take into consideration what family ties you have, whether you have maintained steady employment, whether you own property in your local area, and what possible eligibility for discretionary relief from removal you may have. Based on these factors, the judge will decide whether you are a flight risk.
- Considerations such as fixed address, the length of time you have resided in the area, a history of employment, and other community ties may be considered when deciding whether you are a flight risk. Note that these factors are different than what is considered in determining whether you are a danger to people or property
These factors and other personal circumstances that you want your judge to consider should be documented and submitted to the court and to ICE (Immigration Customs Enforcement) so that they can be reviewed and discussed at your bond hearing. As a person with a criminal history requesting bond, you may be required to testify about your criminal record, how you got to the United States, your work history, the amount of time you have lived in the area, or anything else the judge or ICE attorney wants to ask. Preparing to testify at the bond hearing is essential.
If my bond request is denied, what can I do?
If the immigration judge denies your bond request, you may be able to appeal this decision. If you file an appeal of the judge’s decision to deny bond, you must file with the Board of Immigration Appeals. You will remain in ICE custody until the Board issues its decisionyou’re your appeal is sustained, you may be released on bond. If it is denied, you will remain in custody.
Once I am granted a bond is there anything that ICE can do to stop me from getting out on bond?
Yes. If the judge gives you a bond, but DHS decides to appeal the judge’s decision to grant you a bond your case will then go to the Board of Immigration Appeals. You may still be able to post your bond and be released depending on the timeframe of DHS’s actions. If ICE’s appeal is sustained, you may be taken back into custody.
What factors would the BIA look at when deciding whether to grant or deny the appeal from DHS?
- The BIA will look at family circumstances to determine if that might provide for a positive influence on the person’s conduct.
- The BIA will look at whether these circumstances existed prior to the arrest or conviction to decide if they actually serve as a deterrent to the person.
- The BIA will also consider the number and type of convictions a person has.
- The BIA will take into consideration if a person has a conviction that was from years prior. They do this to determine whether the person has been rehabilitated and therefore not a danger to the community.
If you’re worried about whether you qualify to get an immigration bond because of a criminal record, it’s important to talk to an experienced immigration attorney about your case so you know your options. Having a criminal record doesn’t always mean you cannot get a bond, but an Immigration Judge can consider your criminal record when determining whether you are a danger to people or property. If you want to be prepared to request an immigration bond, contact our office today to schedule a consultation.