Factors to consider in a scenario when someone you know is detained by Immigration Customs Enforcement.

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My undocumented spouse is currently detained by Immigration and Customs Enforcement agents. I would like to know if there is a way to get him released from immigration custody.

After being detained by Immigration and Customs Enforcement agents, “ICE” you spouse will be placed in removal proceedings based on the fact that he has no status in the United States. While detained, ICE agents will make a preliminary determination about whether your spouse merits being released pending his removal proceeding. If ICE determines that your spouse cannot be released under law or does not merit release, your spouse may have another opportunity in requesting release before an immigration judge. Whether your spouse is eventually released or stays in custody, an immigration judge will next need to determine whether your spouse is removable and if removable whether your spouse qualifies for relief from removal. Your spouse is likely removable for living without status in the United States. Relief from removal will depend on different factors such as time your spouse has lived in the United States; existence of family ties if any, effects of removal on close family and if your spouse may be persecuted if he is returned to his country of origin. We discuss removal proceedings and different ways to defend a removal case in our removal post you can find by clicking here.

My husband has lived in the United States for over 12 years, paying his taxes and never intending to harm anyone, will that be enough to convince an agent or judge to release him?

Both ICE and an immigration judge will weigh various factors to determine whether your spouse merits release including the years you mention he has been living in the United States and his criminal history.  Essentially, an ICE agent and later an Immigration judge is attempting to determine whether your husband is a flight risk if released or if he poses a danger to his community if released. In most cases ICE will differ custody determination issues to ICE. Factors considered in order to determine flight risk or danger to the community include:

  • Time living in the United States – An immigration judge or ICE agent may find that someone with a long history of living in the United States with little to no criminal history is an individual more inclined to obey the laws of  the United States concluding that the detained individual has lived a stable life denoting a willingness to appear at his future court hearings and to avoid harming anyone in the community if released.
  • Work history in the United States – Similar to issue of time living in the United States, substantial work history, including compliance with tax laws can mean stability and history of efforts to be productive in society and sense of obligation to employers and family. This factor also serves to minimize the impression that individual will not appear at court appearances.
  • Immigration violation history – A judge or agent will look to see what other violations if any a noncitizen has committed other than the fact that he is undocumented. Substantial history such as attempts to commit fraud to obtain immigration benefits or various attempts to re-enter the United States without permission may signify to a judge or agent that the individual has little regard for United States laws which may lead to a conclusion that the individual has little interest in showing up to any future court hearings and will seek to disappear once released.
  • Criminal history – Significant criminal history also may lead to the conclusion that the individual has little regard for United States laws meaning little interest in showing up to future hearings. Furthermore, if the individual has convictions for crimes where there is a victim or there could have been a victim whose well-being may have been placed in danger such as violence related crimes or intoxicated driving crimes may lead to a determination that such an individual is a danger to the community.
  • Family ties in the United States – Similar to the factors of time living in the United States and work history, more family with close ties such as spouses, parents and children who have legal status, may lead to conclusion of stability and the individual’s motivation to act in the best interest of his family members minimizing chances of a determination that the detained individual is a flight risk or danger to the community.
  • Potential hardship to close family members such as spouses, parents, children who are legal permanent residents or United States Citizens. – Also affects finding of flight risk, but this is more of a humanitarian factor where a judge or agent will be concerned if a United States Citizen or legal permanent resident will be harmed if the noncitizen family member is not released. This usually means that family with significant mental health or physical health needs, increase the chances of release for the detained noncitizen.
  • Potential for relief from removal leading to the ability to permanently live in the United States. Ties more into issue of flight risk where the clearer the chances of the detained individual being successful in being granted relief from removal, the greater the chance an agent or judge will find that the detained individual is motivated in appearing to his court hearings.

Sometimes you have cases that are clear such as where a detained individual may have little to no family with the detained individual possessing little time living in the United States, a sporadic work history, and significant criminal history where a judge in her mind can easily conclude that the detained individual is either or both a flight risk or danger to the community not justifying release. In the alternative, you have a clear case where the detained individual has a significant amount of years living in the United States with significant work history and significant family where it is clear the detained individual will qualify for a green card making it an easy call for the agent or judge to release the individual.

Most cases have a combination of good and bad factors where an immigration judge or agent has to weigh whether the good outweighs the bad in their minds to justify release. In cases where there is a combination of good and bad there is no clear cut outcome with respect to potential release however a general rule of thumb is if the detained individual has at least one victim based criminal conviction such as an intoxicated driving conviction, that individual is going to need a clearer path to winning his case compared to an individual with no victim based convictions where an agent or judge will be more open minded to that individual’s release.

Ok, well he does have a shop lifting conviction and a drunk driving conviction, how will that affect his chances of being released?

As I have stated, the potential of being denied can be significant with these types of convictions. First, the shop lifting conviction could be considered a theft offense which in some cases is the type of offense that makes a detained individual subject to mandatory detention. Being subject to mandatory detention means that the detained individual has committed a criminal offense that under immigration laws does not allow for his release pending the removal case. This means that even if the judge thinks that the individual is a good person who doesn’t pose a flight risk and won’t be a danger to his community, the judge by law cannot release that individual from detention. These crimes consist of certain theft related offenses; drug related offenses and violence related offenses. Since shoplifting offenses contain some element of theft, there is a chance a judge can find that the conviction is the type of offense that makes the detained individual subject to mandatory detention.

With respect to the intoxicated driving offense, although this offense will not disqualify a detained individual from release like a theft related offense or drug related offense, this offense has a significant potential of placing the life of a person in danger. As a result, immigration authorities place great importance on these offenses and could deny release simply because the judge or agent finds that the detained individual poses a danger to the community.

Should we give up hope of release because of these convictions?

Not at all. This is the type of case where an immigration attorney becomes necessary. An immigration attorney will be able to determine mandatory detention after studying the state shoplifting conviction and then advise you and your spouse whether the conviction is or is not the type of theft offense that subjects a noncitizen to mandatory detention. If the attorney determines that the theft offense does not invoke mandatory detention or believes there is a good argument to convince the judge that the theft offense does not subject your spouse to mandatory detention, then the attorney will be able to present such argument before the immigration judge attempting to convince the judge that mandatory detention does not apply.

Note that in cases where it appears that a detained individual maybe subject to mandatory detention, most ICE agents will refer the detention issue to the judge in order to avoid making an error on a complicated issue. Keep in mind as well that even if an attorney can successfully convince a judge that your spouse is not subject to mandatory detention because of the shoplifting conviction, work still needs to be done to build up your husband’s character to overshadow the two convictions and attempt to convince the judge that your spouse will not reoffend, is not a danger to the community and is not a flight risk.

With respect to the intoxicated driving conviction, the attorney will be able to assist you and your family in preparing presentation to attempt to convince the judge that your spouse will not reoffend be it because the offense happened many years ago or because there exists other good equitable circumstances that may outweigh the conviction showing that your husband is not a danger to the community.

Is there an amount of money to pay if my spouse is granted release?

Most likely yes. It is possible that a detained individual could be released on his own recognizance, but this is not the norm and most assuredly a bond amount determined by the judge or agent will have to be paid to have your spouse released. Similar to a criminal case, the full amount can be paid, or a bondsman can be hired to assist in paying the bond amount. Note that not all bondsman will help, but an immigration attorney can help in securing the services of a bondsman that is able to post an immigration bond.

We have been married for 10 years with two children. One child is ten years old and has a learning disability while our other child is five years old and is relatively healthy. With these facts can you determine the chances that my spouse is released?

Unfortunately, it is hard to guarantee a bond determination especially where there is criminal history involved. As stated, the years of residence in the United States, family ties and work history will all come into play as well as policies in effect at the time of bond request as well as seemingly trivial like factors such as a judge’s mood can affect a bond determination. Having said that, this case has the potential of release on bond although the bond amount will likely be in the higher range of $10,000 or more because of the intoxicated driving conviction.

The negative aspects of this case which can preclude bond or lead to a higher amount include the criminal history comprised of the theft related conviction and the intoxicated driving related conviction. These are significant barriers to release because they indicate disregard for the law which is an indicator of a flight risk while the intoxicated driving offense is an indicator of a potential danger to the community. However, there are positive factors that I believe will outweigh the negative factors leading to release from custody. Positive factors include your spouse’s substantial amount of time living in the United States; marriage to you, a United States citizen and the two United States citizen children. Furthermore, it appears that he may qualify for a form of relief from removal in the form of cancellation of removal because of living in the United States for ten years and because of the potential significant hardship that likely will be suffered by his child who has a learning disability. Again, you can read more about removal proceedings and potential waivers by clicking here.

A final word on the criminal history. Although it is a positive factor that your spouse only has two convictions within 12 years, you should keep in mind that the recency of the convictions will also determine how much weight a judge will give them in determining release. For example, if the last conviction happened more than ten years ago, although still significant, it is possible that a judge will look at the convictions more as a one or two time at most mistake in judgement which will not happen again indicating that your husband has learned from his mistake diminishing the chance of a determination of your spouse being a danger to the community. However, if the last conviction, especially the intoxicated driving conviction happened within the last year, then the judge will give that conviction more weight increasing the chances of a finding of your spouse being a danger to the community leading to either a high bond determination or potentially no release.

Any advice you can give me in preparing to ask for my spouse’s release from a judge?

I typically counsel clients to attempt to obtain documentation demonstrating that the client is not a danger to the community; is a person of positive character, has family ties, has close family that may experience hardship if not released and that the client is remorseful and/or rehabilitated from the criminal offense which also ties into the danger to the community issue.  Documents related to good character and strong family ties can include documents such as birth and marriage certificates as well as character declarations from family and friends; tax history compliance; stable work history, property ownership, and any documents demonstrating history of community service or involvement. With respect to addressing the issue of someone being a danger to the community, the same friends and family declarations will help; work history as well as documentation showing rehabilitation after conviction demonstrating that the client learned from his mistakes.  Finally, documentation such as medical or mental health related reports in an attempt to demonstrate how a spouse, child or parent will depend on the detained client or will suffer if the detained client is not released.

Keep in mind that in bond determination cases before judges, there will be an attorney representing the government who will serve the role of a prosecutor trying to minimize any positive equities surrounding your spouse and likely arguing that your spouse is a flight risk and/or danger to the community

Therefore, our goal is to provide as much documentary evidence combined with argument to present a detained client in the best light possible. An attorney is not striving to present a client as a perfect individual with no flaws, but to present an individual who despite his flaws is someone who has learned from his mistakes, has endeavored to work hard in the time living in the United States and has given significant effort to live a stable life and provide a stable life for family that still needs support like young children or family with significant physical or mental health issues.

Remember that it is important to keep in mind the word patience and to manage expectations. As I previously indicated there is a chance that a judge may not grant bond despite best efforts by family and attorneys and the family should be prepared for that possibility and prepare with their attorney accordingly for a plan B. Regardless, the first step is to make best efforts to gather documentation to make the best presentation possible to the judge to increase chances of release.

Finally, remember especially with cases with criminal history, families should be prepared to look into financial resources to pay for a bond amount to secure release. This could mean looking into savings, requesting help from family, friends or members of the community and/or taking inventory of assets including residential real property that may have to be used as collateral for a bondsman to assist with positing a high bond amount. Most times, the more a client and family can stay focused and complete as much of the tasks I have mentioned means a significant increase in chances of an effective enough presentation to have a client released. Please contact an immigration attorney including our office in the event you or a family member or friend falls into ICE custody.

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