The Fastest Way Out of Detention? What You Need to Know About Bail / Bond

  1. Why Would An Immigrant Be Placed In Detention?
  2. What is bail (bond)?
  3. Which immigrants in detention qualify for bail?
  4. Which immigrants are subject to mandatory detention?

Many friends and families call upon our immigration law firm with questions when there is a loved one detained by Immigration.

The first question we are usually asked is: how can we get our loved one out of there; can we post bail for immigrants in detention?

First of all, why would an immigrant be placed in detention?

Almost all immigrants in detention are there because they have had prior or current run-ins with the police, or because they have no legal papers such as green cards or current, unexpired status in the US (usually proven with valid visa). An immigrant can also be deemed a flight risk, a fugitive, or a threat to society. Detention is a way for ICE ( Immigration and Customs Enforcement) to ensure that an immigrant will appear before the Immigration Court.

What is bail (bond)?

Bail is an amount of money that ICE can require to release someone from detention to ensure that they will show up to their court case, and follow through on the decision. It is called BOND in the immigration law.

Many immigrants in custody, however, cannot request bail because they are deemed a flight risk, or unsafe to society at large. One notable category of immigrants who cannot seek bail/ bond is the  “arriving alien.”

An arriving alien is someone who is:

  1. Apprehended at the border seeking admission even if paroled (allowed to enter) into the US; or
  2. Interdicted and brought into the US even if they are not seeking admission; or
  3. A returning lawful permanent resident considered to be seeking admission

Which immigrants in detention qualify for release?

  • ICE may  “parole” (release) green card holders who do not have crimes that subject them to mandatory detention, or people who show “credible fear” of returning to their countries.
  • While some jurisdictions have announced no interest in doing the federal government’s work, many immigrants detained by law enforcement are turned over to ICE for crimes committed within the US. These immigrants come to the attention of Immigration due to contact with the criminal justice system and they MAY be bail eligible.
  • Many immigrants who are detained with no crimes (or minor offenses) prior to ICE custody will receive bond from an Immigration Judge after proper legal arguments are presented.

Which immigrants are subject to mandatory detention?

In 1996, President Clinton signed a law which resulted in mandatory detention (without bail) for all immigrants who committed certain crimes, as well as those facing removal under other serious grounds.

Remember there are always exceptions to every law.

Not infrequently, court decisions are published, resulting in eligibility for changes in custody with payment of bond, in various jurisdictions.

While thousands of immigrants find themselves in custody every day, a consultation with an immigration attorney with great experience in handling detention cases may make all the difference in the world.


Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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