After a person is arrested, they are typically brought to a short-term detention facility for processing. If the person expresses an intention to apply for asylum, they then go through an asylum screening. After ICE arrests a person, the agency must make a custody determination and decide whether to place the individual in removal proceedings within 48 hours, unless there is an emergency or other extraordinary circumstance.
When ICE claims that the person has been convicted of certain crimes, the agency will take the position that detention is mandatory or that the person is not eligible for release. Whether individuals who entered between ports of entry and pass an initial asylum screening interview may seek release in a bond hearing before an immigration judge. ICE also generally refuses to release individuals who already have an outstanding or unexecuted order of removal, or who are subject to another summary removal process known as reinstatement for having previously been ordered removed and subsequently reentered without inspection.
If a person is eligible for release, ICE is supposed to assess the person’s flight and public safety risk before choosing whether to release the person. Following this assessment, ICE will determine whether the person is eligible for release, and if so, may utilize one of the following options:
- An individual may be released on their own recognizance. The person signs paperwork committing to appear for scheduled immigration court hearings.
- ICE may release an individual on Orders of Supervision. This comes with conditions, such as electronic monitoring, set times to report to an ICE officer in person or by telephone, and travel restrictions.
- ICE may require someone to post a monetary bond (similar to bail in the criminal context) to secure release. The immigration laws require a minimum bond of $1,500, but bond amounts can be as high as tens of thousands of dollars.
- ICE may release an individual on parole, which is permission to reside in the United States for a finite period of time. ICE also may place a parolee on an OSUP requiring him or her to meet certain conditions to remain on parole.
Initial Bond Hearing
If the immigration judge determines that the detainee is eligible for release, the judge then decides whether to release the individual on their own recognizance, bond, and/or other conditions. Release is warranted if the individual does not pose a danger to property or persons and is likely to appear at future court hearings. The immigration judge also can modify the conditions of release set by ICE. If the immigration judge determines that release is not warranted or the individual cannot afford to pay the bond amount set, the individual remains locked up in immigration detention.
What Options Are Available After the Initial Bond Hearing?
If the person disagrees with an immigration judge’s custody decision, they may file an appeal with the Board of Immigration Appeals within 30 days of the decision. If an immigration judge or the BIA have issued a negative custody decision, an individual may ask for another bond hearing provided they can demonstrate a “change of circumstances” warranting release.
How Judges Decide to Release People on Own Recognizance
Simply put, own recognizance release is no-cost bail. Defendants released on their own recognizance need only sign a written promise to appear in court as required. No bail has to be paid, either to the court or to a bail bond seller. However, all other aspects of bail remain the same. That is, a judge can place conditions on a defendant released own recognizance and order the arrest of a defendant who fails to show up in court when required.
Judges have nearly absolute discretion when it comes to deciding whether to require bail or release a suspect on his or her own recognizance. Generally, the same factors that might incline a judge to set low bail may persuade the judge to grant own recognizance release. Thus, factors favoring own recognizance release include a suspect’s good past record, longtime residence in a community, support of family members, and employment.