How Detainees May Obtain Release From Immigration Detention
Foreign nationals who have been detained by Immigration and Customs Enforcement (“ICE”) have four main ways of obtaining their release. The first, and historically least common, is a release with no strings attached. The second is release under an order of recognizance or order of supervision. The third is release on bond. The forth is parole.
No Strings Attached
When a foreign national is detained by ICE it has broad power to decide whether to release the immigrant and to set the conditions of such release. The broadest use of this power is to release immigrants without any strings attached. Generally this is done when the immigration agent determines that the foreign national presents no danger to the community, has strong ties to the community, and either will not be placed into removal proceedings or has a very strong case. It also helps to have strong humanitarian factors on one’s side, such as to be nursing, pregnant, or sick. Historically, ICE would only exercise this power very rarely. However, under the new initiatives to administratively close low priority cases and to offer deferred action to immigrant youth, this is much more common. When a person is released with no strings attached, they have no obligation to report to ICE. ICE may or may not initiate removal proceedings against the immigrant by issuing a Notice To Appear (“NTA”) either on the spot or by mail.
Order of Recognizance
ICE releases immigrants under an order of recognizance when it has decided to place the person into removal proceedings and wants to keep close tabs on her, but has also determined that the person is not a danger to the community, is a low flight risk, and has strong factors in her favor, such as those listed above. The order of recognizance requires the immigrant to report to ICE whenever specified—generally once per month—and provides other restrictions on the activities and movements of the immigrant.
Order of Supervision
Orders of supervision are issued to individuals who have outstanding orders of removal, but whom ICE is unable to deport at the time and does not wish to keep in custody. These are commonly used for pregnant or nursing mothers, individuals who are sick, and individuals who have hired an immigration attorney who has indicated to ICE that he will be seeking to reopen the case or apply for some other benefit. The order of supervision places the same obligations and restrictions on the immigrant as do orders of recognizance. One benefit of being on an order of supervision is that the immigrant can apply for a work permit. An order of recognizance does not provide this benefit.
ICE may also release individuals on bond. In these cases, the immigrant will be required to pay the designated amount in full, or she may request that an immigration judge reconsider the bond amount. Such a request is generally made orally by the detainee’s immigration lawyer. For example, at the Immigration Court in Tacoma Washington, which is housed in the Northwest Detention Center—the same building where detainees are kept—an immigration attorney need only to call the immigration court and request a bond hearing. At the hearing the attorney will present arguments and evidence regarding why the immigrant should be released and what the amount of the bond should be.
In determining whether, and at what amount, to set a bond, the immigration judge considers two main factors: (1) Whether the person is a danger to the community and (2) whether she is a flight risk. Factors pertaining to whether an immigrant is a danger to the community include the recency, extensiveness, seriousness, and type of criminal charges and convictions. Domestic violence and DUI charges are especially unhelpful.
Factors pertaining to flight risk include the type and strength of any defenses to removal, having a fixed address in the United States, length of residence in the United States, family ties in the United States (with special emphasis on those who can confer immigration benefits such as LPR/USC spouse, children, and parents), length and stability of employment in the United States, prior immigration encounters, attempts to escape or flee from criminal or immigration authorities, and prior failures to appear at court hearings. Other factors that an immigration judge may consider include early release from incarceration for good behavior, ability to pay, and difficulties ICE may encounter in removing the individual from the United States.
Occasionally, immigrant detainees are ineligible for bond due to how they entered the country and when and where they were detained. In these situations, ICE may nonetheless release them under what is known as ICE Parole. ICE Parole is generally exercised when the person:
- Has a “serious medical condition”
- Is a juvenile
- Is pregnant
- Has an “immediate relative” (i.e. a U.S. citizen spouse or child) who has filed an I-130 for the detainee
- Will be a witness in court proceedings (commonly for a crime such as human trafficking)
- Has won an asylum case that is currently on appeal
Disclaimer: This article is provided for informational purposes only. It is not offered as, and does not constitute, legal advice. Do not rely on this article without consulting directly with an immigration attorney about the specific facts of your case. This article does not create an attorney-client relationship.
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