Release on bond is an important part of pursuing a defense to deportation. An alien in custody cannot adequately assist with his defense, nor easily communicate with counsel. Custody also wears a person down and increases the likelihood that an alien with a strong defense to deportation will agree to deportation to avoid spending more time in jail.

The Department of Homeland Security always makes the initial custody determination.  After the DHS custody determination, the Immigration Judge has jurisdiction over bond hearings and may order release at any time until a final removal order.  An alien ordinarily should not be detained unless she presents a threat to security or a flight risk. See Matter of Patel, 15 I&N Dec. 666 (BIA 1976)

The Immigration Judge may also hold additional bond hearings upon written request if the alien can show a material change in circumstances 8 C.F.R. § 1003.19(e); Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989).

A case called Matter of Guerra, 24 I&N Dec. 37 (BIA 2006) contains a good discussion of the factors an Immigration Judge should consider when deciding whether a detained alien should be released on bond.  These factors include:

• Fixed address in the United States
• Length of residence in the United States
• Family ties in the United States, especially potential petitioners
• Length and stability of employment in the United States
• Record of immigration violations
• Attempts to escape from authorities or flight to avoid prosecution
• Prior failures to appear for court hearings
• Criminal record, including how extensive and recent

Aliens facing criminal charges or with criminal convicitons may have a more difficult time securing release on bond.  A criminal alien must demonstrate that he is not a threat to security, his release will not pose a danger to person or property, and he is likely to appear for hearings. 8 C.F.R. § 1236.1(c)(8).

A person subject to expedited removal cannot gain release on bond pending removal except in very limited circumstances where DHS paroles the applicant because “parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.” 8 C.F.R. §§235.3(b)(2)(iii), 1235.3(b)(2)(iii), or if the person: (i) has a serious medical condition where continued detention would not be appropriate; (ii) is medically certified as pregnant; (iii) is a juvenile; (iv) is a witness in a proceeding; or (v) continued detention would not be in the public interest. 8 C.F.R. §212.5(b). See Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009)

John Morton, Director of ICE, issued a policy memorandum on December 8, 2009 to ensure the consistent administration of parole for arriving aliens found to have a credible fear of persecution.