New Court Decision Gives Undocumented Immigrants Right to Bail Hearing

It is all too common for nonimmigrants to be detained by U.S. Immigration and Customs Enforcement for a prolonged period with little hope of release while their case is pending. We have a case right now of a person who has been held for over a year already. Fortunately in a recent decision, the U.S. Court of Appeals for the Second Circuit stated that this detention raises serious constitutional issues. The court decided that individuals must be given the opportunity for a bail hearing and placed a high burden on the government to establish why an individual should be denied bail.

Since 1996, the law has required mandatory detention of certain undocumented immigrants who have committed crimes involving moral turpitude, firearm or drug-related offenses, and similar serious crimes. (See 8 U.S.C. § 1226(c) - Apprehension and detention of aliens). It doesn’t matter whether the crime constitutes a felony or misdemeanor; the individual is still subject to mandatory detention. The result has been that many immigrants have languished in jail waiting to be deported, which can take a year or more. They have had no right to a bail hearing and so had very little hope of being released while their case was pending. This new decision has established a bright line rule. Although the government does have the right to detain these individuals, it cannot be for an indefinite period. Instead the new rules state:
1. An immigrant detained pursuant to 8 U.S.C. § 1226(c) must be afforded a bail hearing before an immigration judge within 6 months of his or her detention.
2. The individual is entitled to release on bail “unless the government establishes by clear and convincing evidence that the alien poses a risk of flight or a risk of danger to the community.”
Other courts have also stated that immigrants have the right to a bail hearing, but not all of them have established such a clear 6 month rule. What do the new rules mean for those already in custody? Immigrants who are close to or past the 6 months of detention are now eligible for a bail hearing. In addition, it seems likely that even those who are not near the 6 month mark, but are likely to be detained for 6 months or longer should be eligible for a bond hearing as soon as it becomes clear that their detention will be prolonged past the 6 month mark. For example, if it looks like a decision will take a long time or there is likely to be an appeal, the immigrant can request a bail hearing right away instead of waiting 6 months. The decision also means that the government has the burden of proof of establishing the individual should not receive bail. The government must demonstrate that the individual is highly probable or reasonably certain to be a flight risk or poses an identifiable and articulable threat to an individual or the community. And the existence of a past criminal record is not sufficient by itself to establish this. If you have a loved one who has been detained, contact us for assistance.
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By Ruthie Sanchez | Published November 30, 2015 | Posted in Criminal Issues, Deportation, Immigration Reform, Your Rights | Tagged bail hearing, deportation, detainee, immigrants, immigration

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FAQs

Q: My employer wants to sponsor me to get a green card – can they?
If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.
Q: How can I get a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.
Q: Can I apply for deferred action now?
As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.
Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?
The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.
Q: Who can I contact for more help or information?
It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status. Do not take advice about your immigration case from a notary public or an immigration consultant. The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice. Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.
Q; What should I do now?
You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.
Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?
If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.
Q: My grandma is sick back home – can I go visit her?
Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.
Q: Can our company sponsor an employee to get a green card?
If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.
Q: What is a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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