Section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (2000), provides general authority for the detention of aliens pending a decision on whether they should be removed from the United States. Except for certain criminal and terrorist aliens whose detention is mandatory under section 236(c)(1)of the Act, the statute provides authority for the Attorney General to release aliens on bond “with security approved by, and containing conditions prescribed by, the Attorney General.” Section 236(a)(2)(A) of the Act. The Attorney General has delegated this authority to the Immigration Judges. 8 C.F.R. §§ 1003.19, 1236.1 (2006).


There are various ways by which non-citizens are taken into detention by immigration authorities in the United States. Unlike in many other countries, regular local or federal law enforcement agencies do not have the authority to take non-citizens into custody just for immigration violations unless they have delegated authority under a federal program such as the infamous 287 (g) program.

The 287 (g) program

U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security, is responsible for enforcing federal immigration laws as part of its homeland security mission. ICE works closely with federal, state and local law enforcement partners in this mission. The 287(g) program, one of ICE’s top partnership initiatives, allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions.

That is why local police do not go around asking people for their papers even if they know that the individual is in the country in violation of immigration laws. The best they can do is to inform ICE about the unlawfully present individual unless they are participating in the 287 (g) programs or a similar arrangement. Most police or law enforcement officers do not even bother with whether an individual has papers or not.

It is not their job. They are only concerned with enforcing criminal laws. Not every police officer is qualified to participate in the 287 (g) programs. Only a few officers are selected after which they undergo a special training. ICE provides a 4-week training program at the Federal Law Enforcement Training Center (FLETC) ICE Academy (ICEA) in Charleston, SC, conducted by certified instructors.

Participating officers in the 287(g) program must meet the following requirements:

  1. U.S. citizenship
  2. Current background investigation completed
  3. Minimum one year of experience in current position
  4. No disciplinary actions pending
  5. Training Requirements

Secure Communities

Secure Communities is a Department of Homeland Security (DHS) program designed to identify immigrants in U.S. jails who are deportable under immigration law. Under Secure Communities, participating jails submit arrestees’ fingerprints not only to criminal databases, but to immigration databases as well, allowing Immigration and Customs Enforcement (ICE) access to information on individuals held in jails. Unlike other ICE-local partnerships, Secure Communities gives ICE a technological, not physical, presence in prisons and jails. Unlike the 287(g) program, no local law-enforcement agents are deputized to enforce immigration laws through Secure Communities.

When an individual is booked into a jail, his or her fingerprints are regularly sent to the Federal Bureau of Investigation (FBI) to be checked against criminal databases. With Secure Communities, the FBI then sends the fingerprints to ICE, where they are checked against the U.S. Visitor and Immigrant Status IndicatorTechnology Program (US-VISIT) and the Automated Biometric Identification System (IDENT). This fingerprint check allows state and local law enforcement and ICE automatically and immediately to search the databases for an individual’s criminal and immigration history.

If there is a database “hit,” meaning that the arrested person is matched to a record indicating a potential immigration violation, ICE and the local law-enforcement authorities are notified. ICE then evaluates each case to determine the individual’s immigration status and whether any action is necessary or appropriate based on agency priorities. In most cases, ICE will issue a detainer against the jailed individual. A detainer is a request from ICE to the arresting agency to notify ICE before it releases the noncitizen so that ICE has the opportunity to decide whether the individual should be transferred to federal custody rather than released.

Under this detainer, once a person is set on being released from a jail either after posting bond, serving time or being released form any other reason, the participating jail can hold the individual subject to a detainer for a period of 48 hours to enable ICE take custody of the individual. At the expiry of the 48 hours, if ICE does nothing, the individual is supposed to be released. Once ICE takes custody, it can either release the alien without charges, issue a notice to appear before immigration judge at a, take the individual into ICE detention or release the individual on an immigration bond.

ICE arrests

Sometimes ICE arrests individuals at their homes, place of work or elsewhere as part of their immigration enforcement mission. As stated above, ICE can release an individual on bond or keep them in custody until the individual is charged in an immigration court and removal proceedings commenced.

If ICE has does not set bond or sets bond that the alien considers to be too high, the alien can file a motion for bond called a motion for custody redetermination before the immigration judge who has jurisdiction over the location where the alien is detained.

It is worth noting here that ICE has the practice of moving detainees from place to place and therefore forcing aliens to file new bond motions if on the date set for hearing the bond motion the alien has been moved to another location. It is good practice to keep checking that the alien is still within jurisdiction to make sure the bond motion is still in the right court by the time of hearing.

Not every alien is eligible for release on bond. The law makes certain classes of aliens subject to mandatory detention. This means that those aliens cannot be released on bond and their immigration cases must be conducted while they remain in custody.

Mandatory detention

An alien is subject to mandatory detention if he is  inadmissible or deportable for having committed any of the immigration violations listed in section 236(c)(1)(A)-(D) of the Immigration and Nationality Act. There is a whole list of offenses that I will not write here but the common character of those offenses is that they are serious or violent crimes in nature. These crimes include aggravated felonies and other crimes considered particularly serious. Whether a crime is an aggravated felony or renders one subject to mandatory detention is a matter of critical legal analysis that is beyond the scope of this article. ICE frequently designates crimes to be aggravated felonies when they actually are not. It is therefore helpful to consult a qualified and experienced immigration attorney before one accepts as fact that one has been convicted of an aggravated felony.

If ICE alleges that an alien is subject to mandatory detention, the proper thing to do is not to request for bond first, but to make a motion asking the Court to determine immediately whether DHS has properly placed him in mandatory detention pursuant to section 236(c) (1) (B) of the Immigration and Nationality Act (“INA” or “Act”). See generally, Matter of Joseph, 22 I&N Dec. 799, 1999 WL 339053 (B.I.A. 1999).  If the matter of Joseph hearing is successful, then request for bond. Both matter of Joseph hearing and bond motion can be filed as one combined motion.

This is called a matter of Joseph hearing.  Many aliens have been released from custody because after a matter of Joseph hearing, immigration judges have been able to determine that the alien is wrongfully held in mandatory detention. My view is that every case of alleged mandatory detention needs to be challenged by way of a matter of Joseph hearing.


An alien in a custody determination under section 236(a) of the Immigration and Nationality Act must establish to the satisfaction of the Immigration Judge that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight. See Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). An alien who presents a danger to persons or property should not be released during the pendency of removal proceedings. See Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994).

The Immigration Judge must decide as a threshold matter, if the alien is a danger to persons or property before proceeding any further with the bond application.

Only if an alien has established that he would not pose a danger to property or persons

should an Immigration Judge decide the amount of bond necessary to ensure the alien’s

presence at proceedings to remove him from the United States. Matter of Urena, 25 I & N Dec. 140, 141 (BIA 2009). Pursuant to the matter of Urena, an alien must demonstrate that he does not pose a danger to the community before any release on bond may be considered.

The law grants immigration judges wide discretion and almost unfettered authority in deciding whether or not to grant bond. As a matter of fact the determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or the Department of Homeland Security. 8 C.F.R & 1003 .19 (d).

What this means is that, when requesting bond, anything at all that sheds the slightest positive light on the alien should be included in the motion. The judge can make his or her determination based on almost anything.

Given that most aliens are in custody in the first place based on criminal convictions, there is already a presumption that the alien in custody is a danger to the community. It is up to the alien to show by way of strong evidence that he is not presently a danger to the community.

The courts have consistently recognized that the Attorney General has extremely broad discretion in deciding whether or not to release an alien on bond. See, e.g.Carlson v. Landonsupra, at 540; United States ex rel. Barbour v. District Director of INS, 491 F.2d 573, 577-78 (5th Cir. 1974). Further, the Act does not limit the discretionary factors that may be considered by the Attorney General in determining whether to detain an alien pending a decision on asylum or removal. See, e.g.Carlson v. Landonsupra, at 534 (holding that denial of bail to an alien is within the Attorney General’s lawful discretion as long as it has a “‘reasonable foundation’” (quotingUnited States ex rel. Potash v. District Director, 169 F.2d 747, 751 (2d Cir. 1948)); United States ex rel. Barbour v. District Director of INSsupra, at 577 (applying the “reasonable foundation” standard to find that denial of bond was warranted where the alien was a threat to national security).

The burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond. In general, an Immigration Judge must consider whether an alien who seeks a change in custody status is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk. Matter of Patel, 15 I&N Dec. 666 (BIA 1976).

Immigration Judges may look to a number of factors in determining whether an alien merits release from bond, as well as the amount of bond that is appropriate. These factors may include any or all of the following:

(1) whether the alien has a fixed address in the United States;

(2) the alien’s length of residence in the United States;

(3) the alien’s family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future;

(4) the alien’s employment history;

(5) the alien’s record of appearance in court;

(6) the alien’s criminal record, including the extensiveness of criminal activity, the recency of such of such activity, and the seriousness of the offenses;

(7) the alien’s history of immigration violations;

(8) any attempts by the alien to flee prosecution or otherwise escape from authorities;


(9) the alien’s manner of entry to the United States.

Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000); Matter of Drysdalesupra, at 817; Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).

When making a motion for bond, it is critical to address all the above factors one by one and any other positive factor in the light most favorable to the alien. Include as many positive factors as you can find because the idea is to outweigh the criminal convictions. This evidence may include tax returns, academic achievements, awards, being a primary care giver to a needy family member, honorable military service, payment of child support etc. It is important to document every assertion. You may include affidavits of good character from friends, family and neighbors noting that these affidavits must contain be notarized and contain  the names, addresses, phone numbers and proof of legal status like copies of green cards or U.S passports of those making them.

Practitioners should make an effort to obtain a complete criminal record of the alien because many times the Notice to Appear does not list all criminal convictions and only those that are the basis for the removal proceedings. Many times, the department of homeland security introduces an additional list of  criminal conviction on the form i-213. This new list can make a seemingly easy case immediately impossible because it comes as a surprise. It is important to obtain a complete criminal history before submitting the bond motion to avoid these surprises.

Do not be comforted by the fact that the alien was charged with criminal offenses but never convicted. Many practitioners make this mistake.

The fact is that an immigration judge can properly consider offenses which did not result in convictions when deciding if the alien is a danger to the community.

In re Juan Francisco GUERRA 24 I&N Dec. 37 (BIA 2006), the Board of Immigration Appeals held:

“Therefore, although we recognize that the respondent has not been convicted of the offenses charged in the criminal complaint, we find that unfavorable evidence of his conduct, including evidence of criminal activity, is pertinent to the Immigration Judge’s analysis regarding whether the respondent poses a danger to the community”

In the above matter of Guerra an immigration judge had relied on a complaint signed by a DEA agent which had not resulted in a conviction.

One of the most important considerations is whether the alien requesting bond is eligible for some form of relief from deportation. The theory is that, if the alien is not eligible for any relief, then there is less incentive to come back to court whenever required. It is therefore advisable to include a copy say a filed approvable petition, for example an I-130 petition filed on behalf of the alien, a copy of an application for asylum filed or some other filing that would provide some relief from removal. If the alien will be making an application for cancellation of removal, then include copies of documents showing that he is eligible for the relief and that his application is approvable.

An Immigration Judge has broad discretion in deciding the factors that he or she may consider in custody redeterminations. The Immigration Judge may choose to give greater weight to one factor over others, as long as the decision is reasonable.

That is why every positive factor possible needs to be included in a motion for bond.


By Japheth N. Matemu

[email protected],com

Matemu Law Office P.C

5540 Centerview Drive, suite 200

Raleigh, NC 27606


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