In a move that could affect tens of thousands of detainees, federal judge Lasnik ruled in a federal lawsuit on April 13, that the Department of Justice (DOJ) must obey current immigration law that allows for the release of some undocumented immigrants without posting a bond.

Back in October 2014, the American Civil Liberties Union (ACLU) and Northwest Immigrant Rights Project (NIRP) filed a federal class action lawsuit on behalf of named plaintiff Maria Sandra Rivera and hundreds of other plaintiffs that were being detained on immigration holds solely because they could not post their immigration bonds. The lawsuit was filed in the federal district court for the Western District of Washington. Ms. Rivera, a Honduran woman claims she was fleeing torture and domestic slavery when she entered the U.S. illegally back in March. She was picked up by agents from Immigration and Customs Enforcement (ICE) that same day and sent to the Northwest Detention Center in Tacoma. She thereafter sought asylum and passed a “credible fear interview” with an asylum officer and was determined to pose no flight risk or threat to the community. She asked that she be released on her own recognizance (a process called “conditional parole” which is authorized under the Immigration and Nationalization Act) but was denied- due to a conflicting DOJ policy that requires an immigrant detainee post at least $1,500 bond regardless of whether he or she poses a danger or flight risk. Because she could not afford her bond (which was set at $3,500) she remained detained for over four months before she filed the lawsuit. It is alleged that the criminal detainment of illegal immigrants has been in practice for over 15 years.

In his ruling, Judge Lasnik held that detainees like Ms. Rivera with no criminal history must be released on their own recognizance, until their immigration hearing(s). The immigration ruling also stated that current immigration law allows “that an immigration judge may consider conditions for release beyond a monetary bond.” While the ruling now only affects undocumented immigrants held within the Seattle District Court's jurisdiction, he estimates there are about 500 people in the Seattle and Tacoma areas who fit that scenario — the DOJ's policy impacts tens of thousands of detainees nationally.

What Current Immigration Law Says

Immigration law is one of the most complex and challenging areas of law. The federal Immigration and Nationality Act (INA) governs the U.S.' policies on immigration. Although it stands alone as a body of law, the Act is also contained in title 8 of the United States Code (U.S.C). Pursuant to INA § 212(d)(5)(A), the Attorney General has the discretion to “temporarily and under any prescribed conditions, allow a person seeking admission into the U.S. to enter on [conditional] parole “for urgent humanitarian reasons or significant public benefit.” As discussed above, this means that those who pose no flight risk or threat to society can be considered for release without the requirement of paying a bond.

However, given the discretion to provide for conditional parole, the Attorney General also has the discretion to:

• 1) Continue to detain the arrested immigrant
• 2) Release them on a bond of at least $1,500

See 8 U.S.C. § 1226.

How Immigration Bonds Work

There are two types of immigration bonds:

1) Delivery bond: The detainee must receive an arrest warrant and a notice of custody conditions from ICE to be released on a delivery bond. The purpose of the delivery bond is to ensure that the detainee shows up to all immigration hearings. This allows you to then consult with a lawyer or spend time with family.

2) Voluntary departure bond: In some cases, detainees are given the option to voluntarily leave the country at their own expense by a specified time period. The departure bond--if paid in full to ICE--is refundable once the person has left the country, but will be forfeited if the person fails to leave.

There are Certain Situations Where Detention Is Mandatory.

ICE is required to place you in detention if:

1. You were released from criminal custody after October 8, 1998; and
2. Your release from criminal custody is directly tied to one of the mandatory detention grounds

The grounds for mandatory detention include but are not limited to:

• A crime involving moral turpitude
• Multiple criminal convictions
• A controlled substance (drug) offense. It should also be noted that the INA also allows for the deportation of non-citizens if they have violated the Controlled Substances Act. See INA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i). (See our section on VUCSA for more information on what constitutes a drug crime.)
• A prostitution related offense
• A Human trafflicking offense
• Money laundering
• Aggravated felony
• A firearms offense

Lastly, if you are charged with a crime that is not a ‘mandatory detention' crime, you may still be detained- for example, if you were charged with a DUI, theft, or a low-level drug offense. If you fall into this ‘gray area,' you may still be able to convince the immigration judge to release you if you do not pose a flight risk or threat to the community. This is where having a good lawyer comes in.

Protecting the Rights of Immigrants in Seattle

The goal of our law firm is to deal with your criminal charges in a way that does not involve deportation and in admissible status. Experienced Seattle, Washington, immigration attorney Steve Karimi can provide you with skilled representation and a strong criminal defense. In many cases, it may be in your best interest to reach a compromise with the government to ensure your residency in the United State, since only it only takes one crime of theft, property crimes, or crimes of moral turpitude such as drug crimes, domestic violence or DUI to lead to deportation. If you are an illegal immigrant or legal permanent resident who has been charged with a crime, do not hesitate to contact the Law Offices of Steve Karimitodayto schedule a free initial consultation.