The following categories of individuals are subject to detention in the United States for immigration related reasons: 1) arriving aliens – those persons seeking admission to the United States; 2) individuals in removal (deportation) proceedings; 3) individuals with final orders of removal; and, 4) individuals interdicted on the high seas. Individuals subject to immigration-related detention are arrested in a variety of circumstances. Some are caught up on work-site raids. Others are arrested after an immigration interview or even after immigration court proceedings. Still others may be detained upon arrival at a U.S. port-of-entry.
Once an individual is detained, he or she can make a request for a bond hearing or for release under parole. Individuals who are in the United States can request release on bond before the Immigration Judge through written motion or orally at the first court hearing. An Immigration Judge will look to a variety of factors to determine whether someone should be released on bond. These include: family ties; community ties; employment history; length of time in the United States; immigration history; prior arrests, convictions and appearances at hearings; and, financial ability to post bond. If the Judge chooses to grant “bond,” he or she will fix an mount ranging between $1500 - $25,000. Subsequent to release, the respondent must attend all future hearings or they will lose their bond deposit.
If the individual is an arriving alien, he or she can only be released on parole and that request must be made directly to the DHS Immigration and Customs Enforcement (ICE) office with jurisdiction over his or her case. DHS has broad authority to grant parole for urgent humanitarian reasons or for significant public benefit.
Individuals with certain criminal convictions are subject to mandatory detention during the entire removal proceedings and up until the time of their removal. Although Immigration Judges do not have the authority to release such individuals, they do have the authority to determine whether such persons are actually subject to the mandatory detention provisions in the Immigration and Nationality Act based on his or her conviction. Those who are subject to mandatory detention may be released under very limited circumstances, only if their release is necessary to protect a witness or if they are cooperating in a major criminal investigation. Although the courts have upheld mandatory detention as constitutional, they have also recognized that an individual cannot be held for an unreasonable amount of time pending the final resolution of removal proceedings.