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  • Article: Advocating for Your Clients at the Immigration Bond Hearings: Recap from a Day in a Courtroom By Alena Shautsova

    Advocating for Your Clients at the Immigration Bond Hearings: Recap from a Day in a Courtroom


    A few months ago, a fellow attorney asked me to handle a bond hearing for his detained client in New York, at a Varick Street location. I arrived early, checked the docket and started waiting. While I was waiting, I discovered that my case was assigned to one of the “tough” judges. Every single attorney who was waiting for the Bond hearing that day anticipated that the bond application either would be denied or the bond amount would be set too high for clients to afford it. I have never had an opportunity to be in front of that judge before, but it did not bother me. I knew I had to focus on my client’s story and his case rather than to worry about the “tough” judge. Most of our clients were individuals from South American countries who entered the United States without inspection.

    An Immigration court bond hearing is a proceeding in front of an Immigration judge during which the court re-determines the amount of bond set by Department of Homeland Security (usually ICE officers) or revisits the government’s decision to deny the bond completely. 8 CFR §§ 236 and 1003.19(a).

    Under the Immigration laws, an amount of bond can be set anywhere between $1500 and up to $25000 (I have never heard that anyone receiving an Immigration bond higher than $25000).

    Bond proceedings are separate from other Immigration court proceedings hearings, and nowadays, attorneys can indicate on their notices of appearance that they appear for the bond proceedings only. In practice, however, bond proceedings and Master hearings are often taking place on the same day, one after another.

    If a client is found not to be eligible for the bond, he/she will be detained for the entire time his/her case is pending, and a client’s ability to prepare for the Individual hearing will be understandably limited. The same result will be if a client or his/her friends and family cannot afford the bond’s amount. That is why it is extremely important to be the best advocate you can be for your client during the bond proceedings.

    It is important to know the “standard” the court will have in mind while ruling on an application for bond. The standard that applies during bond proceedings is whether an alien’s release pending removal proceedings will pose a danger to the safety of individuals or property and whether the alien is likely to appear for any scheduled proceeding. Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994). In addition, the judge will consider if respondent’s release will consider the significant implication of national security interests in cases involving foreign nationals seeking to enter the United States illegally. Matter of D-J, 23 I&N Dec. 572, 575 (A.G. 2003).

    When I was called to the courtroom, I had an opportunity to observe other lawyers handling the bond proceedings, and every single one of them walked out of there with the bonds set at the least of $15000 and higher. I saw their clients’ faces: they were in shock because $15000 is more than a half-yearly income for a person working full time at a minimum wage in the United States, and probably a half-life income for most people from some less fortunate countries.

    I also observed something else that day. All attorneys made the same mistakes (from my point of view) while handling the hearings. Number one mistake: they did not review the file and could not articulate a single positive factor in their clients’ favor. Most of the attorneys were stating that they were just retained and that their clients were “eligible for bond.” It is not acceptable. At a minimum, one has to address the standard points: why the client does not present a risk of flight, what family ties he/she has in the United States, and what forms of application he/she is qualified for and is/will be applying for. One can also address the possible success of those applications. Usually, it is possible to see detained clients right prior to the hearing or at least talk to some of their family members.

    Second, these Immigration lawyers did not listen to the government’s arguments why the bond should not be set or should be set at a high level and did not respond to the government’s arguments. A huge, fatal mistake. If you are not the first attorney who is going in front of the judge that day, you have an opportunity to listen to the government’s lawyer’s arguments in support of their position, and most likely, those arguments will be repeated, at least partially in every single subsequent case. Listen to them and prepare your response for your client. I understand, it is stressful to try to prepare while the hearing is a minute away, but this is the job we as attorneys have. For example, on the day I was in the courtroom, the government lawyer argued (in every case) that the respondent deserved a $25,0000 bond (or no bond in some cases) because he/she entered the U.S. not through a designated port of entry (or “crossed the border” ). I did not see it as a good enough reason for my client to spend all his time in detention, and I explained that my client when fleeing for his life, did not have a choice or time to look for an Immigration checkpoint. None of the other lawyers even made an attempt to provide an excuse (however weak it was). Here is a tip: if you have a hard time being creative in your arguments or need more practice on how to address the issues related to bond, go to a criminal court and observe arraignments. The standards criminal courts are applying during the arraignments are very similar to the ones applied during the Immigration bond proceedings. It will help you to know what the court is looking for when deciding your client’s fate. Another argument that I had to deal with that day was that my client’s uncle (who was going to act as an obligor for the bond) reported losses from gambling on his tax returns! Well, I responded that as strange as it sounded, losses from gambling on the tax returns were completely legal in Nevada (where uncle resided) and as such Mr. X’s tax returns had no relevancy to his ability to be an obligated party. The judge agreed, stating she was not familiar with Nevada Tax laws.

    Lastly, lawyers who come to represent clients’ at the bond hearing have to be negotiators. If you know that in a typical “cross-border” case the government sets a bond at $7500, then asking for $7500 at the hearing will not get you to that number. Why? It is because there are unwritten rules of negotiations. If your target number is $7500, the government will ask back for more. You have to know this when you name your price. Do not be shy to asks for the minimum amount or release on client’s recognizance, do not start too high!

    About The Author

    Alena Shautsova Alena Shautsova is a New York Immigration attorney. Currently, she focuses on Civil Law, Employment Discrimination, Immigration, Personal Injury and Class Actions. Ms. Shautsova is a member of New York State Bar Association and American Bar Association. She was admitted to practice law in the United States in 2008. She comes from Belarus where she graduated with honors from one of the most prestigious law schools in the former USSR. Following her graduation in Belarus, she entered the practice of business law while pursuing a second higher education degree in Economics and Management. Her native language is Russian. In 2005 the US Department of State awarded Ms. Shautsova with a highly competitive Eduard S. Muskie scholarship that allowed her to obtain Master's Degree in Law from the Case Western Reserve University in Cleveland, Ohio.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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