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

3. 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

4. What is a bond hearing?

5. 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

6. 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”

7. Timeline

8. 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”

9. 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)

10. 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

11. 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

12. 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!

13. What happens if bond is denied?

14. 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?

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

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

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

18. 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

19. 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

20. 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

21. 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.

22. Conclusion

23. Questions?