9.3 - Bond Proceedings

(a) In General — In certain circumstances, a noncitizen detained by the Department of Homeland Security (DHS) can be released from custody upon the payment of bond.

Initially, the bond is set by DHS.  Upon the noncitizen’s request, an immigration judge may conduct a “bond hearing,” in which the immigration judge has the authority to redetermine the amount of bond set by DHS.

Bond proceedings are separate from removal proceedings.  For guidance on entering an appearance in bond proceedings, see Chapter 2.1(b)(2) (Scope of Representation); see also generally 8 C.F.R. §§ 1003.17(a), 1003.19, 1236.1.

(b) Jurisdiction — Except as provided in subsections (1) through (3) below, an immigration judge generally has jurisdiction to conduct a bond hearing if the respondent is in Department of Homeland Security (DHS) custody.  The immigration judge also has jurisdiction to conduct a bond hearing if the respondent is released from DHS custody upon payment of a bond and, within 7 days of release, files a request for a bond redetermination with the immigration court.

 An immigration judge has jurisdiction over such cases even if a charging document has not been filed.  In addition, an immigration judge has jurisdiction to rule on whether they have jurisdiction to conduct a bond hearing.

          (1) No jurisdiction by regulation — By regulation, an immigration judge does not have jurisdiction to conduct bond hearings involving:

• noncitizens in exclusion proceedings
• “arriving aliens,” as defined in 8 C.F.R. § 1001.1(q), in removal proceedings
• noncitizens ineligible for release on security or related grounds
• noncitizens ineligible for release on certain criminal grounds

          8 C.F.R. § 1003.19(h)(2)(i).

          (2) No jurisdiction by mootness — A bond becomes moot, and the immigration judge loses jurisdiction to conduct a bond hearing, when a noncitizen:

• departs from the United States, whether voluntarily or involuntarily
• is granted relief from removal by the immigration judge, and the Department of Homeland Security does not appeal

• is granted relief from removal by the Board of Immigration Appeals
• is denied relief from removal by the immigration judge, and the noncitizen does not appeal
• is denied relief from removal by the Board of Immigration Appeals

          (3) Other — Immigration judges do not have bond jurisdiction in certain limited proceedings.  See generally Chapter 7 (Other Proceedings before Immigration Judges).

(c) Requesting a Bond Hearing — A request for a bond hearing may be made in writing.  In addition, except as provided in subsection (3), below, a request for a bond hearing may be made orally in court or, at the discretion of the immigration judge, by telephone.  If available, a copy of the Notice to Appear (Form I-862) should be provided.  The telephone number of each immigration court is listed on the EOIR website.

          (1) Contents — A request for a bond hearing should state:

• the full name and A-number of the respondent
• the bond amount set by the Department of Homeland Security
• if the respondent is detained, the location of the detention facility

          (2) No fee — There is no filing fee to request a bond hearing.

          (3) Where to request — A request for a bond hearing is made, in order of preference, to:

• if the respondent is detained, the immigration court having jurisdiction over the respondent’s place of detention;
• the immigration court with administrative control over the case; or      

• the Office of the Chief Immigration Judge for designation of an appropriate immigration court

          8 C.F.R. § 1003.19(c).  See Chapter 3.1(a)(1) (Administrative control courts).

          (4) Multiple requests — If an immigration judge or the Board of Immigration Appeals has previously ruled in bond proceedings involving a respondent, a subsequent request for a bond hearing must be in writing, and the respondent must show that their circumstances have changed materially since the last decision.  In addition, the request must comply with the requirements listed in subsection (c)(1), above.  8 C.F.R. § 1003.19(e).

(d) Scheduling a Hearing — In general, after receiving a request for a bond hearing, the immigration court schedules the hearing for the earliest possible date and notifies the respondent and the Department of Homeland Security.

In limited circumstances, an immigration judge may rule on a bond redetermination request without holding a hearing.

If a respondent requests a bond hearing during another type of hearing (for example, during a master calendar hearing in removal proceedings), the immigration judge may:

• stop the other hearing and conduct a bond hearing on that date
• complete the other hearing and conduct a bond hearing on that date
• complete the other hearing and schedule a bond hearing for a later date
• stop the other hearing and schedule a bond hearing for a later date

(e) Bond Hearings — In a bond hearing, the immigration judge determines whether the respondent is eligible for bond.  If the respondent is eligible for bond, the immigration judge considers whether respondent’s release would pose a danger to property or persons, whether the respondent is likely to appear for further immigration proceedings, and whether the respondent is a threat to national security.  In general, bond hearings are less formal than hearings in removal proceedings.

          (1) Location — Generally, a bond hearing is held at the immigration court where the request for bond redetermination is filed.

          (2) Representation — In a bond hearing, the respondent may be represented by a practitioner of record at no expense to the government.

          (3) Generally not recorded — Bond hearings are generally not recorded.

          (4) Record of Proceedings — The immigration judge creates a record, which is kept separate from the Records of Proceedings for other immigration court proceedings involving the respondent.

          (5) Evidence — Documents for the immigration judge to consider are filed in open court or, if the request for a bond hearing was made in writing, together with the request.  Since the Record of Proceedings in a bond proceeding is kept separate and apart from other Records of Proceedings, documents already filed in removal proceedings must be resubmitted if the filing party wishes them to be considered in the bond proceeding.

          If documents are filed in advance of the hearing, the documents should be filed together with the request for a bond hearing.  If a document is filed in advance of the hearing but separate from the request for a bond hearing, it should be filed with a cover page labeled “BOND PROCEEDINGS.”  See Appendix E (Cover Pages).

          Unless otherwise directed by the immigration judge, the deadlines and requirements for filings in Chapter 3 (Filing with the Immigration Court) do not apply in bond proceedings.

          (6) Conduct of hearing — While the immigration judge decides how each hearing is conducted, parties should submit relevant evidence and:

• the Department of Homeland Security (DHS) should state whether a bond has been set and, if a bond has been set, the amount of the bond and the DHS justification for that amount
• the respondent or the respondent’s practitioner of record should make an oral statement (an “offer of proof” or “proffer”) addressing whether the respondent’s release would pose a danger to property or persons, whether the respondent is likely to appear for future immigration proceedings, and whether the respondent poses a danger to national security

          At the immigration judge’s discretion, witnesses may be placed under oath and testimony taken.  However, parties should be mindful that bond hearings are generally briefer and less formal than hearings in removal proceedings.

          (7) Decision — The immigration judge’s decision is based on any information that is available to the immigration judge or that is presented by the parties.  See 8 C.F.R. § 1003.19(d).

          Usually, the immigration judge’s decision is rendered orally.  Because bond hearings are generally not recorded, the decision is not transcribed.  If either party appeals, the immigration judge prepares a written decision based on notes from the hearing.

          (f) Appeals — Either party may appeal the immigration judge’s decision to the Board of Immigration Appeals.  If the respondent appeals, the immigration judge’s bond decision remains in effect while the appeal is pending.  If the Department of Homeland Security appeals, the immigration judge’s bond decision remains in effect while the appeal is pending unless the Board issues an emergency stay or the decision is automatically stayed by regulation.  See 8 C.F.R. §§ 1003.6(c), 1003.19(i).

          For detailed guidance on when immigration judges’ decisions in bond proceedings are stayed, parties should consult the Board of Immigration Appeals Practice Manual, which is available on the EOIR website.