Bond Hearings: Burdens & Opportunities By Bess Boever & Julia Wolfe

Outline What is a bond hearing and why is it so important today? How can attorneys help their clients get a bond? Options after denials of bond Two legal arguments to raise in bond hearings: burden of proof & ability to pay

What is a bond hearing?

The Basics Similar to and different from criminal bail Bond and “master calendar” proceedings are technically separate Minimum bond amount is $1500 Request a continuance if needed Ultimate goal: proving your client is not dangerousness and does not pose a flight risk

How it starts Noncitizen detained by ICE: Arrest for criminal charge unrelated to immigration status, transferred to ICE Failure to maintain legal status Not lawfully admitted in the first place (“undocumented”) ICE makes initial custody determination Detainee must reserve right to “custody redetermination hearing”

Timeline

Legal standard Burden of proof is on the detainee to show two things (Matter of Guerra): They do not pose a danger to the community They are not a “flight risk”

Factors to consider Show “equities”: Length of residence and fixed address Family ties in U.S. Employment history Criminal history Matter of Guerra 24 I&N Dec. 37 (BIA 2006)

Example: Matter of Siniauskas 27 I&N 207 (BIA 2018) Lawfully admitted in 2000 Significant equities; old and recent DUIs Held: Family/community ties do not mitigate criminal record DUIs are significant factor immigration judges should consider

What to prepare and file Gather information: Police reports, letters of support, birth certificates, health records, etc. Optional: Write a brief Coordinate with family/friends of client Custody redetermination hearing occurs before Immigration Judge Not everything has to be filed

Tips for the hearing Advance communication with opposing counsel Meet your client’s family and friends at immigration court One of many hearings that day Prepare for rapid-fire questioning and informal proceedings Strategize!

What happens if bond is denied?

Know your client: Reserve appeal at the end of the bond hearing if bond is denied. Then consult with your client. Is there any possibility of relief? Will client accept waiting in jail throughout the long appeals process?

Options for appeal: Appeal to BIA Appeal to Court of Appeals Motions to reopen or reconsider Petition for habeas corpus

Two claims for reforming the bond system: Ability to Pay and Burden of Proof Allocation

Raising these claims When? At the bond hearing before an immigration judge Why? Exhaust administrative remedies Sets stage for habeas petition

Why raise these claims? To change detention practices by setting precedents at a federal level, keeping more people out of jail while they are in removal proceedings. Bond proceedings will become easier on detainees who do not have representation

Claim 1: The burden of proving dangerousness and flight risk should be on the government Constitutional argument Due Process Textual argument 8 U.S.C. § 1226(a) is silent on this issue Matter of Adeniji (BIA 1999) wrongly interpreted regulation as allocating burden of proof to respondent. Practical argument

Claim 2: immigration judges should take into account individuals’ ability to pay when setting a bond Constitutional argument Due Process, Equal Protection Eighth Amendment Statutory argument INA Bail Reform Act

Example: Hernandez v. Sessions (9th Cir. 2017) Plaintiff 1: Older Mexican woman in US for 30 years; $60,000 bond. Plaintiff 2: Young gay Honduran man; unable to pay $3,000 bond; in detention for four years. Held: granted preliminary injunction requiring immigration judges to consider ability to pay.

Conclusion

Questions?