What Happens At A Bond Hearing?
At a bond hearing, a judge makes a decision about whether or not bond will be set, and what the amount or any special conditions will be. This type of hearing is very different than a criminal bail hearing, and no one should go into it expecting to be treated fairly. No one should attend this meeting alone or unprepared, even if they are familiar with criminal standards. Unlike a criminal bail hearing, where the government has to prove the accused should be held until trial, the burden of proof will be on the immigrant to show that they are not a flight risk, a danger to the community, or a danger to national security. In Boston, MA, there was a recent court ruling that determined that the burden of proof should not fall on the defendant in immigration court, but there is no guarantee that it will hold up, and many of the immigration judges still place the burden of proof on the immigrant even though they have been instructed not to. Either way, the best decision is always to attend this bond hearing prepared, as there are no second chances to provide the right evidence.
Proving that one is not a danger to the community is usually a difficult requirement only for people who have a criminal record or who the government suspects of gang activity or terrorism. Under these circumstances, the individual = would need to provide documentation of their entire criminal record, including charges that were dismissed. If the crime or crimes occurred many years in the past, then that may work to the individual’s benefit. Charges being dismissed is also beneficial, but the judge will take a close look at the police report and may decide that someone is dangerous even based on a dismissed charge.
Affidavits from family members, employers, and church or community groups can be beneficial. If the individual’s criminal record is drug or alcohol-related, then they could provide proof that they have attended counseling or otherwise addressed that underlying problem. Similarly, if the individual committed a crime due to mental health issues, then they could show proof of their diagnosis and past or ongoing treatment.
In order for someone to show that they are not a flight risk, one of the best forms of evidence is documentation of ties to the community. For example, if the individual has a family member who has a green card, US citizenship, or another type of long-term status like asylum, then it would be really helpful to obtain an affidavit from them. That affidavit should state that they will be residing with that individual and/or that they will provide employment assistance and other avenues for integrating into the community.
If the judge determines that the individual is not eligible for bond, then there is the option of an appeal for that decision, which is always worth discussing. However, an appeal is usually less likely to win if the judge made the decision based on their own discretion. This is because the Board of Immigration Appeals will generally default to the judge in terms of the opinion of the credibility of the witnesses or other factors. If the judge made the decision based on the complicated laws in this area, and believed they were required to deny bond, then there is a better chance of winning a bond appeal, because the Board is more likely to find that they were wrong.
There are a few situations in which a person will be ineligible for bond even if they’re not a danger to the community nor a flight risk. One situation is if the person has certain kinds of a criminal record. That rule is the subject of ongoing litigation. However, an attorney should always be sought for advice, since there may be room to dispute due to technicalities in the law. Another situation is if the person has no status in the US whatsoever (with the exception of cases of asylum and legitimate fears of returning to the home country).
One of the most ridiculous deportation cases I’ve ever handled involved a client who visited his dying grandmother in the Dominican Republic. Due to having previously sold $20 worth of marijuana to an undercover officer, he had a very minor criminal record. This client had a developmental disability which the undercover officer took advantage of by convincing him to sell him the marijuana, which the client had been planning to smoke himself. Since this turned the crime into distribution of marijuana rather than just possession, the client was deemed ineligible for bond. He ultimately won his case, but he was required to spend three months in jail during the pendency of the case. This is one reason it is always best to hire an attorney who can move a case along as quickly as possible.
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