Bail and Release from Immigration Detention

A person subject to removal is generally entitled to release on bond unless he is subject to mandatory detention on criminal or terrorist grounds, or is an ?arriving alien.? However, bond may be denied in the discretion of Immigration and Customs Enforcement or the Immigration Judge. There is generally a presumption in favor of release unless the alien is subject to mandatory detention. The proper inquiry is whether a person is a risk of flight - - meaning that he might not show up at his next hearing, a danger to the community or national security risk. This inquiry must be factually based and not simply by virtue of the person?s status. However, the Attorney General - - and through him the immigration judge- - may decide to detain someone not only because the risk posed by that person, but also the effect that granting bail might otherwise have on national security. Thus, if a judge found that many individuals were fleeing to the United States and wanted to discourage the flight, he may hold on that basis all aliens from that country in detention. See 8 C.F.R. §§236.1(c)(8), 1236.1(c)(8) DHS must decide within 48 hours of the arrest or, in the case of an emergency or other extraordinary circumstance (e.g., the bombing of the World Trade Center), ?within an additional reasonable period of time,? whether the person will be continued in custody or released. 8 C.F.R. §287.3(d). Before the entry of a final order of deportation, a party generally may seek release on bond.

If an alien is not subject to mandatory detention, he will appear before an immigration judge typically within two to three weeks after arrest when he can request bail from an immigration judge. Before this time, ICE might set bail and if that bail is paid, the alien will be released. We have included below instructions on how to post bail for those detained at the York County Facility.