Upon issuance of a Notice to Appear (NTA), a foreign national may be kept in custody, released under a bond of a minimum of $1,500, or released on conditional parole into the community. Foreign nationals in custody and subject to removal proceedings, besides arriving aliens and those subject to mandatory detention, may request bond hearings before the Immigration Judge. A foreign national in custody may request a bond hearing even if DHS has not yet filed the NTA with the immigration court.
In fact, bond hearings are separate from and form no part of removal proceedings. Specific factors to be considered in a bond hearing include:
- Family ties;
- Ties to the community;
- Employment history;
- Criminal record;
- The manner of entry and length of time in the United States;
- Membership in community organizations;
- Likelihood of obtaining permanent residency;
- Availability of relief and
- Any other discretionary factors
In 2003, the U.S. Supreme Court ruled in Demore v. Kim that the mandatory detention provisions of the INA are constitutional, and the provisions even applied to LPRs (lawful permanent residents). Aliens with certain types of criminal histories are subject to “mandatory detention,” which means they cannot be released pending removal proceedings, even if they are LPRs.
The INA states that the following persons are subject to mandatory detention:
- Those who are inadmissible based on the criminal inadmissibility grounds;
- Those who are deportable by reason of having committed any offense (multiple crimes of moral turpitude, aggravated felonies, controlled substances, certain firearm offenses, and miscellaneous espionage and sabotage crimes);
- Those who are deportable under INA §237(a)(2)(A)(i) – one crime involving moral turpitude- if the individual was sentenced to a term of imprisonment of at least one year;
- Those who are admissible based on terrorist activities inadmissibility grounds.
Nevertheless, persons subject to mandatory detention may still be released if the Attorney General decides that release from custody is necessary to provide protection to a witness or potential witness, or an immediate family member of such a person.
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