Samuel Cole
Danger and flight risk are the twin pillars of all immigration court custody redetermination hearings, also known as bond hearings.[1]
Judges presiding over bond hearings set a bond amount or deny it altogether based on their determination as to whether a noncitizen is going to pose a danger to the community in the future or disappear altogether. This, of course, is no small task.
In conducting a bond hearing, immigration courts are directed to look at the specific circumstances of the respondent and consider all "probative and specific" evidence.[2]
The judge makes a bond determination based on whether the noncitizen has a fixed address, the noncitizen's length of residence, family ties, employment history, record of appearance in court, criminal history, history of immigration violations, any attempts to flee prosecution or otherwise escape from authorities, the manner of entry to the U.S., and any potential relief from removal.[3]
The stakes in bond hearings are incredibly high for everyone. The custody decision could have grave consequences for the public if someone dangerous is granted a bond. Denial of a bond continues the restriction on the noncitizen's liberties and comes at a financial cost to the government.
Bond hearings are typically short, and immigration judges usually have many bond motions to consider in a single court session. Likewise, attorneys representing detained respondents may feel pressure to get the respondent released quickly so the noncitizen can be with and support their family.
Despite this pressure, attorneys must take care not to file bond motions before receiving all the necessary information.
Against this backdrop of high stakes and fast-moving dockets, this article offers one immigration judge's guide for practitioners representing noncitizens in bond proceedings.
File the motion and written materials in advance.
On one of my very first days on the bench, an attorney for the respondent filed her multi-inch-thick bond motion in court when her client's case was called. The attorney expected the court to immediately review the stack of material while all the other attorneys were waiting and then conduct the bond hearing right then and there. The court did not meet the attorney's expectations that day, and the matter was reset.
Practitioners may best serve their clients by filing evidence to support a bond hearing several days before the hearing date. While immigration judges become highly proficient at reviewing and digesting a large amount of written material very quickly, practitioners may find that the judge may be able to issue a bond decision sooner if they have more time in advance of the hearing to consider the evidence.
The court will understand that sometimes attorneys are waiting on that last letter or police report to get it all on file. If one letter or a final police report gets filed on the day of the hearing, that is typically something the court can handle. But don't wait to file evidence that is ready for consideration.
Keep the motion to the point and explain the serious legal issues.
Bond motions should set out the respondent's general background, family situation, work history, immigration history, potential relief applications, ties to the community and criminal history. This information should be at the top of page one, not start in the middle of page three, which is so often the case.
Focus on this information. Usually, judges do not need to see more than two sentences with bond boilerplate case law. Some bond motions do present complicated legal issues, however, and these issues need to be fleshed out in the motion.
For example, an argument that a statute of conviction does not qualify as a drug offense, aggravated felony, crime involving moral turpitude or the like because the statute is overbroad and indivisible under the U.S. Supreme Court's 2016 decision in Mathis v. U.S.[4] should be fully argued in the bond motion, and should apply the correct version of the statute at issue.
Talk about relief.
Any immigration relief the respondent may potentially have is relevant to whether the respondent is a flight risk because a respondent is more likely to return to court if they have an incentive to do so. The bond motion should therefore discuss likely relief applications.
This analysis should not be just a sentence saying the respondent is eligible to apply for cancelation of removal or intends to file an asylum application. It would be far more helpful if the court understood the potential merit of any such applications, including the specifics of hardships to the qualifying relatives and the actual basis for any forthcoming asylum application.
The more details provided, the easier it is for the court to determine the likelihood that the respondent will show up to court next time. That being said, the bond hearing is not the proper place for the immigration judge to delve deeply into the merits of a relief application.
File a criminal history chart.
The respondent's criminal history is one of the primary considerations for the judge's determination as to dangerousness. Practitioners may best serve their clients by setting out the noncitizen's criminal history in one place, such as in one easily digestible chart.
The Immigration Court Practice Manual and appendices set out useful suggestions for information to include in the chart. A criminal history chart is preferable to simply providing state court criminal case summary sheets which can take a long time for the court to review.
Practitioners may not be aware of the entirety of the criminal history of their client when they file the bond motion. If at the time of the hearing it turns out the chart is missing some criminal history, this situation is not uncommon.
Criminal history charts take a long time to create and often need to be revised as more information comes to light, but practitioners are still wise to provide them.
File police reports.
Practitioners should strongly consider filing police reports, as they can be an important component that the judge uses to assess whether a respondent can be released on a bond.
From the judge's point of view, police reports often provide a starting point for what may have occurred and what questions need to be asked. This is even true when arrests do not result in charges or charges get dismissed.
Include a few good letters of support and not a stack of generic ones.
Letters from friends, family, employers, landlords and the like are fine, but too often they could be utilized better. Practitioners may best serve their clients by providing detailed letters from people who know the respondent well and understand why they are incarcerated. The judge will appreciate having detail — including the bad stuff.
Even one real, detailed letter from someone who knows the respondent well, like the respondent's partner, is far preferred over a stack of short, generic letters from the respondent's neighbor three houses down.
If the respondent was arrested for domestic violence, letters from the victim and family addressing what happened can be very helpful.
Letters that inappropriately minimize the respondent's past wrongdoing are easily spotted and may not be as helpful. More on letters and testimony from victims is below.
Address any alcohol problems and planned treatment.
If your client has been incarcerated after an arrest for an alcohol-fueled crime, such as drunk driving or domestic violence, you may best serve your client by providing evidence to help the court understand the circumstances.
If the respondent's drinking in this one incident is truly an aberration, one or more detailed letters from the respondent's family can help the court understand that. But if the respondent has a serious alcohol problem, it will likely hurt the respondent's case if the family tries to cover it up. Often, it is easy to see through, and it does not help the respondent get a bond. Instead, this is probably the right time to get that treatment plan set up.
Specific, realistic treatment plans can be very persuasive in convincing the court that the respondent is not a danger to the community. So can a detailed explanation of what type of monitoring the respondent is going to have to deal with from the state as a result of his criminal conviction.
Don't present witnesses who lie.
Judges don't like to see witnesses who write false letters about what happened or lie during testimony. It subjects the attorney to potential trouble with the bar[5] and opens the witness to criminal prosecution, however unlikely that may be.
The root of this issue is rarely attorney malfeasance or indifference. It's more often the result of insufficient witness preparation and review of materials.
As a former civil and criminal assistant U.S. attorney, my training and background leans toward painfully long witness preparations over the course of many days. Immigration judges understand that this just isn't feasible in many circumstances because of the extreme difficulty in communicating with witnesses and respondents caused by detention center limitations, language barriers and the quick timing of some hearings.
Plus, witness preparation, even in the best of circumstances, is time-consuming. Still, witness preparation that includes explaining the legal consequences and just practical unhelpfulness of false or misleading testimony could save everyone trouble down the road.
Consider the role of domestic violence victim witnesses.
Attorneys should exercise caution in calling witnesses who have been victims of domestic violence and should carefully review any letters from victims to understand whether and how the victim's new statement or testimony differs from what's described in the police report or other material.
Credible victim testimony can be extremely powerful and helpful to the court in making an assessment of dangerousness. Detailed letters written by victims — as opposed to declarations written by attorneys — can also go a long way toward contextualizing whatever may have happened. On the other hand, judges understand that letters from victims of domestic violence can be heavily influenced by fear of the abuser.
In this context, there's an important role that an attorney must play in evaluating in a particular case whether it is appropriate — and ethical — to put on victim testimony or submit a letter from the victim.
It is asking a lot for the judge to credit testimony that is contrary to prior victim statements in police reports, inconsistent with the respondent's documented arrest history, or implausible. Judges are not required to take the victim's new statement at face value, and neither should the attorney.
Anticipate Fifth Amendment issues.
Issues of self-incrimination come up often in bond hearings when a respondent has a serious pending criminal charge but hopes to convince the judge that it's not what it appears on paper. Attorneys need to think through these issues very carefully before allowing the respondent to testify about serious pending criminal charges during a bond hearing.
Practitioners may best serve their client by consulting with the respondent's criminal defense attorney to determine the risks of testimony by their client. Whether it's worth the risk for the respondent to talk about serious pending charges is a case-by-case evaluation that a practitioner should make with each respondent.
High bonds don't ameliorate danger.
Bond amounts relate to flight risk and not dangerousness. For the court to release a noncitizen on an immigration bond, the noncitizen must first prove that they do not present a danger to the community.[6] Before a bond amount is discussed, the court must first conclude that the respondent is bondable because they are not dangerous.
Sometimes practitioners argue that a high bond is appropriate because of the respondent's lengthy criminal history. Practitioners should consider whether this argument is helpful, however, because if a respondent is a danger to the community, no bond amount will make the respondent less dangerous.
Conversely, if the court determines that a respondent has a lengthy criminal history but ultimately is not a danger, the criminal history does not necessarily mean that the respondent should only be released on a high bond. Again, bond amount has nothing to do with dangerousness. Bond amount is tied to flight risk.
Don't forget conditional parole.
Section 236(a)(2) of the Immigration and Nationality Act allows the U.S. attorney general to release the respondent on a bond of at least $1,500 or on conditional parole. Yet attorneys rarely ask for conditional parole, which could allow their clients to be released without having to pay a monetary bond.
Don't be afraid to argue why it's appropriate in any particular case when the risk of flight is minimal.
Try to get agreement in advance on a bond.
It is entirely appropriate to seek out the local U.S. Immigration and Customs Enforcement trial attorney in advance of the bond hearing to try to agree on the bond amount.
When I was a federal prosecutor, contested bond hearings before a judge were reserved for cases where we could not reach agreement. It was, therefore, surprising to see that agreements on bond amounts were unusual in immigration courts across the country.
This is an inefficient practice, and private counsel would be well served to reach out to the local trial attorney to seek agreements on bond prior to court. Of course, the judge still will need to be convinced the agreement is appropriate, but in most cases that is unlikely to be an issue.
Know the local court practice.
Immigration court bond practice may vary across the country, and nothing can substitute for knowing local customs. Understanding a court's procedures is especially important now that many court proceedings are taking place virtually and attorneys can more easily appear in unfamiliar courts across the country without actually leaving their homes.
Attorneys are advised to research how local judges view bond amounts and criminal history. Attorneys who request bond amounts significantly higher than are set for similar cases in that jurisdiction may well get their requested bond amount, but they may not have fully served the interests of their client.
These practice pointers for bond hearings are not rules engraved in stone for all attorneys, judges or courts. Rather, they are suggested practice tips with the hope that they might aid attorneys practicing in immigration court to be better prepared so that bond hearings can run more smoothly and with less delay.
Samuel B. Cole is an immigration judge in Chicago, where he presides over a detained docket. He is executive vice president of the National Association of Immigration Judges.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] In order to be released on bond, a noncitizen "must establish to the satisfaction of the Immigration Judge and the Board that they do not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight." Matter of R-A-V-P-, 27 I&N Dec. 803, 804 (BIA 2020) (citing Matter of Siniauskas, 27 I&N Dec. 207, 207 (BIA 2018)). This article only concerns noncitizens eligible for release under INA § 236(a) and not noncitizens subject to mandatory detention under INA § 236(c).
[2] Matter of R-A-V-P-, 27 I&N Dec. 803, 804 (BIA 2020) (citing Matter of Guerra, 24 I&N Dec. 37, 40-1 (BIA 2006)).
[3] Matter of R-A-V-P-, 27 I&N Dec. 803, 805 (BIA 2020).
[4] Mathis v. U.S., 579 U.S. 500, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016).
[5] Attorneys have an ethical obligation not to put on perjured testimony. Model Rules of Professional Conduct 3.3(a)(3).
[6] Matter of Urena
, 25 I&N Dec. 140, 141 (BIA 2009) ("An Immigration Judge should only set a bond if he first determines that the alien does not present a danger to the community.").