Tooby's California Post-Conviction Relief for Immigrants

 

If the proper detainer has been issued by the DHS, immigration counsel can sometimes[41] secure the client’s release on an immigration bond.  The DHS will accept full cash bond with no fee required.  A bond agency usually requires real property collateral or full cash deposit (plus 10 percent annually to the bondsperson).  Noncitizens who are not charged with deportation on account of aggravated felonies may face bonds ranging from $1,500 to $25,000.  An aggravated felon with a valid § 212(c) claim may face an DHS request for $20,000 bond.  A non-permanent resident charged with an aggravated felony is absolutely barred from release on bond.

 

            Once released from state custody into DHS custody, the bond is set and the client’s immigration lawyer can obtain a bond redetermination hearing in immigration court within a few days.

 

            As discussed below, many noncitizens in removal proceedings on account of criminal convictions will not be eligible for release on immigration bond at all.  It is therefore critical to determine in consultation with immigration counsel whether the client will be eligible for release on immigration bond if you can secure his or her release from criminal custody on bond or own recognizance release.

 

            If the client is released from criminal custody, and the DHS is prohibited from releasing the client on immigration bond, the client may be transferred overnight to an DHS detention facility in another state, and deported, regardless of your desire to secure your client’s presence to contest the criminal proceedings.  One benefit of this is that your client will not suffer a new conviction, but a drawback is that s/he will have an arrest warrant outstanding which will be highly problematic if s/he is ever allowed lawfully to re-enter the United States.

 

            These issues should be thoroughly explored prior to securing the release of the client on the criminal charges. 

[41] If the client is not subject to mandatory DHS detention, under INA § 236(c), 8 U.S.C.    § 1226(c), the immigration lawyer can almost always secure release on a very moderate immigration bond.  The minimum bond is $1500, cash or surety.