A
person who is arrested by the Immigration and Naturalization
Service and is issued a Warrant of Arrest may be eligible
for an immigration bond. The amount of a bond should be
sufficient to ensure that the alien will appear for
any future immigration proceedings. In order to be
considered for bond, the alien must be eligible and demonstrate
to the satisfaction of the immigration officer that such
release would not pose a danger to property or persons,
and that the alien is likely to appear for any future
proceedings.
After INS determines that an alien is eligible you must
post an Immigration Bond. To post an immigration bond
you must work through a private company rather than INS.
In
order to start the release process we need the following
information:
- Alien Name
- Alien Registration Number
- Name of the facility where the alien is being held
If
you would like to speak with an immigration specialist
please call us at 1-800-824-6614. One of our experienced immigration specialists will assist
you with obtaining a bond.
Please
find additional information that applies to immigration
cases. If you would like more information on particular
charges below you may click the highlighted section number
and you will be taken to more detailed information regarding
that particular charge.
Sec.
236.1 Apprehension, custody, and detention.
(a) Detainers. The issuance of a detainer under this section
shall be governed by the provisions of § 287.7
of this chapter.
(b) Warrant of arrest. (1) In general. At the time of issuance
of the notice to appear, or at any time thereafter and
up to the time removal proceedings are completed, the
respondent may be arrested and taken into custody under
the authority of Form I-200, Warrant of Arrest. A warrant
of arrest may be issued only by those immigration officers
listed in § 287.5(e)(2)
of this chapter and may be served only by those immigration
officers listed in § 287.5(e)(3)
of this chapter.
(2) If, after the issuance
of a warrant of arrest, a determination is made not to
serve it, any officer authorized to issue such warrant
may authorize its cancellation.
(c) Custody issues and release procedures. (1) In General
(i) After the expiration of the Transition Period Custody
Rules (TPCR) set forth in section 303(b)(3)
of Div. C of Pub. L. 104-208,
no alien described in section 236(c)(1) of
the Act may be released from custody during removal proceedings
except pursuant to section 236(c)(2)
of the Act. (Corrected 4/1/97; 62 FR 15362)
(Revised effective 6/18/98; 63 FR 27441)
(ii) Paragraph (c)(2)
through (c)(8) of this section shall govern custody determinations
for aliens subject to the TPCR while they remain in effect.
For purposes of this section, an alien "subject to
the TPCR" is an alien described in section 303(b)(3)(A)
of Div. C of Pub. L. 104-208
who is in deportation proceedings, subject to a final
order of deportation, or in removal proceedings. The TPCR
do not apply to aliens in exclusion proceedings under
former section 236
of the Act, aliens in expedited removal proceedings under
section 235(b)(1) of the Act, or aliens subject to a final
order of removal. (Corrected by adding (ii) 4/1/97; 62 FR 15362)
(Revised effective 6/18/98; 63 FR 27441)
(2) Aliens not lawfully
admitted. Subject to paragraph (c)(6)(i) of this section,
but notwithstanding any other provision within this section,
an alien subject to the TPCR who is not lawfully admitted
is not eligible to be considered for release from custody.
(i) An alien who remains
in status as an alien lawfully admitted for permanent
residence, conditionally admitted for permanent residence,
or lawfully admitted for temporary residence is "lawfully
admitted" for purposes of this section.
(ii) An alien in removal
proceedings, in deportation proceedings, or subject to
a final order of deportation, and not described in paragraph
(c)(2)(i) of this section, is not "lawfully admitted"
for purposes of this section unless the alien last entered
the United States lawfully and is not presently an applicant
for admission to the United States. (Paragraph (c)(2)
added effective 6/18/98, previous (c)(2) redesignated
as (c)(8); 63 FR 27441)
(3) Criminal aliens
eligible to be considered for release. Except as provided
in this section, or otherwise provided by law, an alien
subject to the TPCR may be considered for release from
custody if lawfully admitted. Such an alien must first
demonstrate, by clear and convincing evidence, that release
would not pose a danger to the safety of other persons
or of property. If an alien meets this burden, the alien
must further demonstrate, by clear and convincing evidence,
that the alien is likely to appear for any scheduled proceeding
(including any appearance required by the Service or EOIR)
in order to be considered for release in the exercise
of discretion. (Paragraph (c)(3) added effective 6/18/98,
previous (c)(3) redesignated as (c)(9); 63 FR 27441)
(4) Criminal aliens
ineligible to be considered for release except in certain
special circumstances. An alien, other than an alien
lawfully admitted for permanent residence, subject to
section 303(b)(3)(A) (ii)
or (iii) of Div. C. of Pub. L. 104-208
is ineligible to be considered for release if the alien:
(i) Is described in section
241(a)(2)(C)
of the Act (as in effect prior to April 1, 1997), or has
been convicted of a crime described in section 101(a)(43)(B),
(E)(ii)
or (F)
of the Act (as in effect on April 1, 1997);
(ii) Has been convicted
of a crime described in section 101(a)(43)(G)
of the Act (as in effect on April 1, 1997) or a crime
or crimes involving moral turpitude related to property,
and sentenced therefor (including in the aggregate) to
at least 3 years' imprisonment;
(iii) Has failed to appear
for an immigration proceeding without reasonable cause
or has been subject to a bench warrant or similar legal
process (unless quashed, withdrawn, or cancelled as improvidently
issued);
(iv) Has been convicted
of a crime described in section 101(a)(43)(Q)
or (T)
of the Act (as in effect on April 1, 1997);
(v) Has been convicted
in a criminal proceeding of a violation of section 273,
274,
274C,
276,
or 277
of the Act, or has admitted the factual elements of such
a violation;
(vi) Has overstayed a
period granted for voluntary departure;
(vii) Has failed to surrender
or report for removal pursuant to an order of exclusion,
deportation, or removal;
(viii) Does not wish
to pursue, or is statutorily ineligible for, any form
of relief from exclusion, deportation, or removal under
this chapter or the Act; or
(ix) Is described in
paragraphs (c)(5)(i)(A), (B), or (C) of this section but
has not been sentenced, including in the aggregate but
not including any portions suspended, to at least 2 years'
imprisonment, unless the alien was lawfully admitted and
has not, since the commencement of proceedings and within
the 10 years prior thereto, been convicted of a crime,
failed to comply with an order to surrender or a period
of voluntary departure, or been subject to a bench warrant
or similar legal process (unless quashed, withdrawn, or
cancelled as improvidently issued). An alien eligible
to be considered for release under this paragraph must
meet the burdens described in paragraph (c)(3) of this
section in order to be released from custody in the exercise
of discretion.
(Paragraph (c)(4) added
effective 6/18/98, previous (c)(4) redesignated as (c)(10);
63 FR 27441)
(5) Criminal aliens
ineligible to be considered for release.
(i) A criminal alien
subject to section 303(b)(3)(A)(ii)
or (iii)
of Div. C of Pub. L. 104-208
is ineligible to be considered for release if the alien
has been sentenced, including in the aggregate but not
including any portions suspended, to at least 2 years'
imprisonment, and the alien
(A) Is described in section
237(a)(2)(D)(i)
or (ii)
of the Act (as in effect on April 1, 1997), or has been
convicted of a crime described in section 101(a)(43)(A),
(C),
(E)(i),
(H),
(I),
(K)(iii),
or (L)
of the Act (as in effect on April 1, 1997);
(B) Is described in section
237(a)(2)(A)(iv)
of the Act; or
(C) Has escaped or attempted
to escape from the lawful custody of a local, State, or
Federal prison, agency, or officer within the United States.
(ii) Notwithstanding
paragraph (c)(5)(i) of this section, a permanent resident
alien who has not, since the commencement of proceedings
and within the 15 years prior thereto, been convicted
of a crime, failed to comply with an order to surrender
or a period of voluntary departure, or been subject to
a bench warrant or similar legal process (unless quashed,
withdrawn, or cancelled as improvidently issued), may
be considered for release under paragraph (c)(3) of this
section. (Paragraph (c)(5) added effective 6/18/98, previous
(c)(5) redesignated as (c)(11); 63 FR 27441)
(6) Unremovable aliens
and certain long-term detainees.
(i) If the district director
determines that an alien subject to section 303(b)(3)(A)(ii)
or (iii)
of Div. C of Pub. L. 104-208
cannot be removed from the United States because the designated
country of removal or deportation will not accept the
alien's return, the district director may, in the exercise
of discretion, consider release of the alien from custody
upon such terms and conditions as the district director
may prescribe, without regard to paragraphs (c)(2), (c)(4),
and (c)(5) of this section.
(ii) The district director
may also, notwithstanding paragraph (c)(5) of this section,
consider release from custody, upon such terms and conditions
as the district director may prescribe, of any alien described
in paragraph (c)(2)(ii) of this section who has been in
the Service's custody for six months pursuant to a final
order of deportation terminating the alien's status as
a lawful permanent resident.
(iii) The district director
may release an alien from custody under this paragraph
only in accordance with the standards set forth in paragraph
(c)(3) of this section and any other applicable provisions
of law.
(iv) The district director's
custody decision under this paragraph shall not be subject
to redetermination by an immigration judge, but, in the
case of a custody decision under paragraph (c)(6)(ii)
of this section, may be appealed to the Board of Immigration
Appeals pursuant to paragraph (d)(3)(iii) of this section.
(Paragraph (c)(6) added
effective 6/18/98; 63 FR 27441)
(7) Construction.
A reference in this section to a provision in section
241
of the Act as in effect prior to April 1, 1997, shall
be deemed to include a reference to the corresponding
provision in section 237
of the Act as in effect on April 1, 1997. A reference
in this section to a "crime" shall be considered
to include a reference to a conspiracy or attempt to commit
such a crime. In calculating the 10-year period specified
in paragraph (c)(4) of this section and the 15-year period
specified in paragraph (c)(5) of this section, no period
during which the alien was detained or incarcerated shall
count toward the total. References in paragraph (c)(6)(i)
of this section to the "district director" shall
be deemed to include a reference to any official designated
by the Commissioner to exercise custody authority over
aliens covered by that paragraph. Nothing in this part
shall be construed as prohibiting an alien from seeking
reconsideration of the Service's determination that the
alien is within a category barred from release under this
part. (Paragraph (c)(7) added effective 6/18/98; 63 FR 27441)
(8) Any officer authorized
to issue a warrant of arrest may, in the officer's discretion,
release an alien not described in section 236(c)(1)
of the Act, under the conditions at section 236(a)(2)
and (3)
of the Act; provided that the alien must demonstrate
to the satisfaction of the officer that such release would
not pose a danger to property or persons, and that the
alien is likely to appear for any future proceeding. Such
an officer may also, in the exercise of discretion, release
an alien in deportation proceedings pursuant to the authority
in section 242
of the Act (as designated prior to April 1, 1997), except
as otherwise provided by law. (Corrected 4/1/97; 62 FR 15362)
(Redesignated as paragraph (c)(8) effective 6/18/98, previously
paragraph (c)(2); 63 FR 27441)
(9) When an alien who,
having been arrested and taken into custody, has been
released, such release may be revoked at any time in the
discretion of the district director, acting district director,
deputy district director, assistant district director
for investigations, assistant district director for detention
and deportation, or officer in charge (except foreign),
in which event the alien may be taken into physical custody
and detained. If detained, unless a breach has occurred,
any outstanding bond shall be revoked and canceled. (Redesignated
as paragraph (c)(9) effective 6/18/98, previously paragraph
(c)(3); 63 FR 27441)
(10) The provisions of
§ 103.6
of this chapter shall apply to any bonds authorized. Subject
to the provisions of this section, the provisions of §
3.19
of this chapter shall govern availability to the respondent
of recourse to other administrative authority for release
from custody. (Redesignated as paragraph (c)(10) effective
6/18/98, previously paragraph (c)(4); 63 FR 27441)
(11) An immigration judge
may not exercise the authority provided in this section,
and the review process described in paragraph (d) of this
section shall not apply, with respect to any alien beyond
the custody jurisdiction of the immigration judge as provided
in § 3.19(h)
of this chapter. (Redesignated as paragraph (c)(11) and
revised, effective 6/18/98, previously paragraph (c)(5);
63 FR 27441)
(d) Appeals from custody decisions. (1) Application to
immigration judge. After an initial custody determination
by the district director, including the setting of a bond,
the respondent may, at any time before an order under
8 CFR part 240
becomes final, request amelioration of the conditions
under which he or she may be released. Prior to such final
order, and except as otherwise provided in this chapter,
the immigration judge is authorized to exercise the authority
in section 236
of the Act (or section 242(a)(1)
of the Act as designated prior to April 1, 1997 in the
case of an alien in deportation proceedings) to detain
the alien in custody, release the alien, and determine
the amount of bond, if any, under which the respondent
may be released, as provided in § 3.19
of this chapter. If the alien has been released from custody,
an application for amelioration of the terms of release
must be filed within 7 days of release. (Amended 12/21/01;
65 FR 80281)
(Corrected 4/1/97; 62 FR 15362)
(2) Application to
the district director. After expiration of the 7-day
period in paragraph (d)(1) of this section, the respondent
may request review by the district director of the conditions
of his or her release. (Revised 12/21/01; 65 FR 80281)
(3) Appeal to the
Board of Immigration Appeals. An appeal relating to
bond and custody determinations may be filed to the Board
of Immigration Appeals in the following circumstances:
(i) In accordance with
§ 3.38
of this chapter, the alien or the Service may appeal the
decision of an immigration judge pursuant to paragraph
(d)(1) of this section.
(ii) The alien, within
10 days, may appeal from the district director's decision
under paragraph (d)(2)(i) of this section.
(iii) (Removed 12/21/01;
65 FR 80281)
(4) Effect of filing
an appeal. The filing of an appeal from a determination
of an immigration judge or district director under this
paragraph shall not operate to delay compliance with the
order (except as provided in § 3.19(i)),
nor stay the administrative proceedings or removal. (Paragraph
(d)(4) revised effective 6/18/98; 63 FR 27441)
(e) Privilege of communication. Every detained alien shall
be notified that he or she may communicate with the consular
or diplomatic officers of the country of his or her nationality
in the United States. Existing treaties with the countries
listed below require immediate communication with appropriate
consular or diplomatic officers whenever nationals of
the following countries are detained in removal proceedings,
whether or not requested by the alien and even if the
alien requests that no communication be undertaken in
his or her behalf. When notifying consular or diplomatic
officials, Service officers shall not reveal the fact
that any detained alien has applied for asylum or withholding
of removal.
Albania 1/ Antigua Armenia
Azerbaijan Bahamas Barbados
Belarus Belize Brunei
Bulgaria China
(People's Republic of) 2/ Costa
Rica
Cyprus Czech
Republic Dominica
Fiji Gambia,
The Georgia
Ghana Grenada Guyana
Hungary Jamaica Kazakhstan
Kiribati Kuwait Kyrgyzstan
Malaysia Malta Mauritius
Moldova Mongolia Nigeria
Philippines Poland Romania
Russian Federation St.
Kitts/Nevis St. Lucia
St. Vincent/Grenadines Seychelles Sierra
Leone
Singapore Slovak
Republic South Korea
Tajikistan Tanzania Tonga
Trinidad/Tobago Turkmenistan Tuvalu
Ukraine United
Kingdom 3/ U.S.S.R.
4/
Uzbekistan Zambia
____________________________________________________
Footnotes
1/Arrangements with these
countries provide that U.S. authorities shall notify responsible
representatives within 72 hours of the arrest or detention
of one of their nationals.
2/When Taiwan nationals
(who carry "Republic of China" passports) are
detained, notification should be made to the nearest office
of the Taiwan Economic and Cultural Representative's Office,
the unofficial entity representing Taiwan's interests
in the United States.
3/British dependencies
are also covered by this agreement. They are: Anguilla,
British Virgin Islands, Hong Kong, Bermuda, Montserrat,
and the Turks and Caicos Islands. Their residents carry
British passports.
4/All U.S.S.R. successor
states are covered by this agreement. They are: Armenia,
Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Russian Federation, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan.
(f) Notification to Executive Office
for Immigration Review of change in custody status.
The Service shall notify the Immigration Court having
administrative control over the Record of Proceeding of
any change in custody location or of release from, or
subsequent taking into, Service custody of a respondent/applicant
pursuant to § 3.19(g)
of this chapter.
