Once the NTA (Notice to Appear) has been issued, a foreign national can be either kept in custody, released with a minimum $1,500 bond, or released on conditional parole. There are, however, individuals who are subject to mandatory detention, (1) individuals who have “immigration crimes” on their record and (2) individuals with prior deportations.
If the immigration judge has improperly determined that a noncitizen is subject to mandatory detention for his/her criminal record, counsel can file a Joseph’s Motion pursuant to the Board of Immigration Appeals case, Matter of Joseph to argue that there has been an incorrect interpretation of the criminal record.
The Code of Federal Regulations sets bond procedures for noncitizens before the immigration court at 8 CFR §1003.19 which provides that the immigration court must hold a bond hearing within 72 hours of the filing of the motion requesting bond. The law provides that the judge has great discretion in setting a bond, but should consider the following factors:
- Family ties;
- Ties to the community;
- Employment history;
- Criminal record;
- Manner of entry into the U.S. and time in the country;
- Membership in community organizations;
- National security issues;
- Likelihood of obtaining U.S. residency; and
- Any other discretionary factors.