Bond Hearings - Detained by the ICE - Lawyer Fairfax Virginia

The United States statutory law provides that, on a warrant issued by the Attorney General, a non-citizen may be taken into custody and detained pending a decision on whether the non-citizen is to be removed from the United States. This situation arises when a non-citizen has been convicted of an aggravated felony as defined by the Immigration and Nationality Act (INA) or upon the issuance of a warrant or Notice to Appear (NTA). An non-citizen may be detained pending a decision on whether they becomes inadmissible or deportable due to having committed a certain offense covered by the Act, even if they have legal status in the U.S. at the time of the offense. The Department of Homeland Security's (DHS) Immigration and Customs Enforcement ("ICE") agency has the power to detain an inadmissible or deportable alien and remove/deport the alien if such determination has been made.

Detention by the ICE has become the nation's fastest-growing form of incarceration after Congress changed the immigration laws in 1996 and, following the September 11, 2001 attacks, passed war on terror detainee legislation. Thousands of immigrants are incarcerated in the United States on any given day.

If a person has been detained by the ICE, legal assistance and representation are crucial for asserting the person's rights and seeking release from custody. A non-citizen may be arrested and detained without Miranda warnings. In the absence of legal help, self-incrimination on the part of the detainee and abuse of process on the part of the authorities are not unheard of.


Immigration and Customs Enforcement (ICE) is required to take into custody any alien who:

(1) is inadmissible by reason of having committed any offense that constitutes a ground of inadmissibility;
(2) is deportable by reason of having committed any criminal offenses, except crimes of moral turpitude;
(3) is deportable for having committed a crime of moral turpitude, on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year; or
(4) is inadmissible or deportable because of terrorist activities.

The most common offenses used as grounds for removal/deportation are:

1. drug offenses (drug possession, drug sale, or drug trafficking);
2. sex offenses (including sexual abuse of a minor or endangering the welfare of a child);
3. weapons possession;
4. theft offenses/property crimes;
5. aggravated felonies (including murder, rape, illicit trafficking in drugs, firearms, destructive devices, or explosives, or alien smuggling);
6. crimes of moral turpitude (or crimes that have to do with theft, fraud, forgery, etc)
7. domestic violence (including stalking and violations of protective orders).

While statutory law provides that no court may set aside any action or decision regarding the detention or release of certain aliens, the courts are in disagreement whether this statutory provision is unconstitutional on the ground that it violates due process (which includes a right to freedom from arbitrary detention), especially where the alien has not conceded removability.

Bond Hearings

Due process requires that the ICE hold a bail hearing with reasonable promptness to determine whether the alien poses a flight risk or is a danger to the community.  As long as the petitioner remains in custody, the bail hearing procedure must be repeated every six months if the petitioner so requests. The ICE may make a determination to release the alien on a minimum bond or on conditional parole. To be released on bond, the alien in a custody determination must establish to the satisfaction of the Immigration Judge that he/she does not pose a risk of flight and does not present a danger to property or persons. The alien's history with the immigration authorities is a factor that a court weighs heavily in determining the risk of flight.

The government may at any time revoke a bond or parole authorized for a detained alien, re-arrest the alien under the original warrant, and detain the alien.

Bond proceedings are usually less formal than removal and other proceedings. A charging document is not required to be filed with the Immigration Court before the Immigration Judge can begin bond proceedings.  All that is required is that the alien be in the actual physical custody of DHS.

Bond redeterminations before the Immigration Judges and Board of Appeals. Except for criminal or terrorist aliens whose detention is mandatory, the person may continue to be detained or be released on bond or parole, which may be revoked at any time and the alien rearrested.

The initial decision relating to detention or release is made by DHS.  Regulations provide that at the time DHS issues the NTA, or any time after, prior to the completion of removal proceedings, the alien may be taken into custody by DHS.

With certain exceptions, Immigration Judges have general authority to review custody and bond determinations originally made by DHS. The Judge can decide to continue the alien's detention or set bond. Such review takes place during a bond hearing which is separate and apart from the removal proceedings.

The initial application can be made in writing or orally during a Master calendar hearing. The Immigration Judge's decision will then be made and the client will be informed orally and in writing as to the Judge's decision to set bond or not.

About TATE BYWATER, Attorneys at Law

TATE BYWATER is a full service law firm providing comprehensive representation in criminal law, family law, personal injury, bankruptcy, real estate, immigration law, and business law. We are committed to providing excellent customer service to every client through communication, education, compassion, and respect. 

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