My Spouse Is in Criminal Custody and ICE Has a Hold on Him

The most unfortunate situations I often see are people who have criminal convictions, and are detained by immigration, and their family members want to know whether or not they can get a bond for their loved one. It depends on the crime. It also depends on the person’s immigration status and whether or not immigration is willing to set a bond. If your spouse has a conviction after October 9, 1998, where they were sentenced to probation, jail, any type of punishment where they were confined including probation which immigration considers to be some type of confinement, they are going to be subject to most likely mandatory detention. There are certain convictions that render you removable from the United States as well as admissible to the United States. Depending on what that conviction is, your spouse can be considered to be mandatory detention. Usually a drug offense is going to have somebody considered to mandatory detention, and somebody who has two crimes involving moral turpitude are going to be subject to mandatory detention as well, if the conviction occurred after 1998.

No matter how sad your situation is, no matter how many children you have, whether you’ll lose your job, your family, etc., if your spouse is not released from custody, unfortunately, immigration judges don’t have the authority to release them on bond. Similarly, if your loved one has been stopped by immigration coming into the airport and immigration doesn’t admit them, takes their Green Card away, and places them into removal proceedings, they are going to be charged on their paperwork as an arriving alien. If your spouse is classified as an arriving alien, an immigration judge does not have the authority to bond them out. In some circumstances, and in some jurisdictions, the immigration authorities, deportation says, that they have the authority to parole you out, but, that’s not really set in stone. You’d have to assume that they would have to stay in custody. If they are in custody, they are going to have to fight their case while they are detained. Again, I understand the situation where you have family members and it’s sad and there are a lot of equities, even an immigration judge might care, but unfortunately, an immigration judge doesn’t have jurisdiction to bond your spouse out if they are subject to mandatory detention under the law. Again, that would depend on the crime and when it occurred.

Cheryl David is an experienced immigration attorney working in New York City. If you have questions about whether your spouse is eligible for a bond or is detained in immigration custody, please contact her office for a free initial consultation. We’d be happy to discuss your situation with you.