IMMIGRATION BOND HEARING

In the United States, noncitizens can often find themselves in detention after crossing the U.S. border, whether legally or illegally, or if they are already in the U.S. and violate immigration laws or other U.S. laws. Additionally, if you are an immigrant and, God forbid, are criminally convicted, you will likely encounter ICE officers upon your release from a correctional facility and be transported directly to immigration detention.

The Supreme Court has recognized that immigration detention is civil in nature and, under no circumstances, can it be considered punitive. What does this mean? In simple terms, the U.S. Government is essentially saying: “We are not punishing you by holding you in immigration detention. You're free to leave at any time — just not into the United States, but to your home country. So why are you detained while other immigrants are free? Only because we consider you to pose either a flight risk, a danger to the U.S. community, or both.”

So, you need to understand firstly - to be released from the immigration detention, you need to prove two factors:

(1) You are not a danger for the U.S. community

(2) You are not a flight risk

Importantly, your immigration bond hearing has nothing to do with your main case — whether it is an asylum case or any other type of proceeding. What does this mean? It means you do not need to present matters related to your asylum case during the bond hearing. At the bond hearing, your sole focus must be to prove that you are not a flight risk and not a danger to the community.

However, there is one pivotal procedural point you must understand: you must duplicate any evidence from your asylum case that supports your argument that you are not a flight risk or a danger to the community and include it in the bond hearing package.

Keep in mind — your asylum case and your bond case are two entirely separate proceedings, and you cannot rely during the bond hearing on evidence that was only submitted for your asylum case even if the Immigration Judge (IJ) have seen the relevant for your bond evidence within the asylum case, the IJ do not have obligation to rely on them or to get them into consideration for the bond decision if they were not included in the bond hearing package of evidence.

All bond proceedings in immigration generally are devided on three types:

(I) under 8 U.S.C. § 1226(a) governing bond hearings when your asylum case is before the Immigration Court and has never been decided yet. It is called pre-final order detention;

(II) 8 U.S.C. § 1226(c) governs the same stage of proceedings but applies to aliens with certain criminal convictions. In such cases, detention is mandatory under the law. However, even for criminal aliens, the duration of civil detention may raise constitutional concerns;

(III) 8 U.S.C. § 1231(a) governing detention when you lost all your immigration cases and was ordered to be deported from the United States but for one or another reason your deportation is not executed again and again. post-final order detention (after a final removal order has been issued).

What kind of factors the Immigration Court takes into consideration?

In Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006), the Board provided an extensive, but not exhaustive, list of factors that the Court may consider when determining whether an alien should be released on bond. Those factors are:

(1)whether the alien has a fixed address in the United States; (2) the alien's length of residence in the United States; (3) the alien's family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien's employment history; (5) the alien's record of appearance in court; (6) the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien's history of immigration violations; (8) any attempts by. the alien to flee prosecution or otherwise escape from authorities; and (9) manner of entry to the United States.

What are the elements applicable to the bond hearing?

1. BURDEN OF PROOF, in simple terms, means the party that is responsible for proving its claim. In U.S. immigration proceedings, the law places the burden of proof on you at the initial bond hearing. That means it’s your responsibility to provide evidence and convince the Immigration Judge (IJ) that you are not a flight risk and not a danger to the community. The government, in this stage, doesn’t need to prove anything — it can just sit and observe while you try to make your case for release.

However, after six months of immigration detention, the burden of proof shifts to the U.S. government. That’s because prolonged detention raises serious constitutional concerns under the Due Process Clause. At that point, it becomes the government’s responsibility to prove that you should remain in custody — not yours to prove that you should be released.

To put it very simply:

Initialy: You must stay in detention unless you prove you can be released.

After six months: You must be released unless the government proves you should stay.

But in reality, if you want to be released in either situation, you should be fully prepared to show strong evidence that you are not a flight risk or a danger to society — because even when the burden is on the government, your preparation can make or break your case.

2. STANDARD OF PROOF refers to the level of certainty that the evidence must achieve in a proceeding.

At the initial bond hearing, you have the burden of proof under the preponderance of the evidence standard — which is the lowest level of proof in U.S. law.

To meet this standard, you must present evidence such that the Immigration Judge can be convinced that the fact you are trying to establish actually exists. It is not necessary to prove that the fact exists with complete certainty; it is enough that the Immigration Judge, after considering your evidence, is persuaded that the fact exists, even if some doubt remains.

For example, if you prove that you are not a flight risk, the judge may still have some concerns — but such concerns can often be adequately addressed by setting an appropriate bond amount.

As I explained before, after six months of detention, because of raised serious constitutional concerns, burden of proof shifts to the government to prove that you should not be released. However, the standard of proof the government must meet at that point is slightly higher — it is called "clear and convincing evidence."

Clear and convincing standard requires evidence establishing some issue "in fact," not in "theory." It means that when the government in its arguments relies on likelihood - it is not amount to the proper standard of proof to continue detention.

A clear example of reliance on likelihood appears in Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987), where the Board of Immigration Appeals stated:

“A respondent with a greater likelihood of being granted relief from deportation has a greater motivation to appear for a deportation hearing than one who, based on a criminal record or otherwise, has less potential of being granted such relief.”

Based on this reasoning, the U.S. government often relies on a kind of “prophecy” — first, predicting the likelihood of your success in obtaining asylum, and second, using that prediction to justify another layer of speculation: whether you are likely to abscond or remain under government supervision.

Such theoretical reasoning is considered acceptable as a counter-argument during the initial bond hearing, where the burden is on you and the standard of proof is merely preponderance of the evidence. In that context, the government's suggestion that “the other outcome is still possible” can be enough to cast doubt on your claim. However, this rationale becomes entirely inappropriate after six months of detention, when the burden shifts to the government and the required standard is clear and convincing evidence. At that stage, speculative theories no longer suffice - the government must present solid, factual evidence, not abstract predictions, to justify continued detention.

In reality, Immigration Courts often show little regard for the burden or standard of proof proper applicability. Their decisions frequently appear driven not by the rule of law, but by broader political signals coming from the White House. Nevertheless, understanding these legal standards remains important - both for properly presenting your case in the court and bringing the issue on the record for preserving the issue for appeal.

3. AMOUNT OF BOND - the minimum amount of money that you may ask to pay. In Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017), the Ninth Circuit affirmed a preliminary injunction requiring that immigration judges consider a detainee's ability to pay when setting bond amounts. The court held that detaining individuals solely because they cannot afford bond — without considering alternative conditions of release — violates due process rights. This brings us back to the importance of the burden of proof and how it operates in practice:

Initially, as explained above, you carry the burden to prove any fact you want the Immigration Judge (IJ) to accept — including your financial circumstances. So, if you tell the IJ that you cannot afford more than $5,000 for bond, it is your responsibility at the initial bond hearing to submit evidence supporting that claim.

However, after six months of detention, the burden of proof shifts to the government. At that stage, if you state that you cannot pay more than the statutory minimum bond amount of $2,500, it is sufficient for you to make the claim. If the government disagrees, it must then provide clear and convincing evidence to prove that you do have the financial ability to pay more.

4. FLIGHT RISK - In immigration proceedings, proving that you are not a flight risk means demonstrating that you have no intention of disappearing into U.S. society, living or working illegally, or evading further legal proceedings. It means showing that you will comply with all immigration requirements and appear at every scheduled hearing as required.

Evidence supporting this may include character references from friends or members of the community, letters of appreciation or employment references, proof that your children have been enrolled in school for an extended period, or documentation of your compliance with immigration authorities — such as timely and transparent notifications to ICE regarding changes of address. In other words, you must show that you have established real roots in U.S. society, and that you are not someone who could easily disappear without a trace.

5. DANGER FOR COMMUNITY - To prove that you are not a danger to society, you need to show that you have no criminal history, or if you do, that it occurred a long time ago and that you have since taken steps to demonstrate rehabilitation. This may include evidence of your contributions to society, such as donations, volunteer work, or active involvement in community or social projects.

You should also present evidence that supports your good moral character, such as character references from friends, relatives, or respected members of the community, letters of appreciation, diplomas or academic degrees, and any other documentation that reflects your positive conduct and integration into society.

All of this evidence should be organized into a single, well-prepared document package, accompanied by a table of contents and a cover letter explaining the purpose of the submission and summarizing the key points. I also would accompanied points about flight risk and danger for society with a 1-1.5 page statements establishing why and how your evidence make you not a flight risk or danger for society.

I hope it will help you or your friend, soulemate to prepare for the immigration bond hearing as an educational materials. More to come....