Arrested during a Protest in the U.S. and Fear Your Immigration Status May be Affected?

How Immigration Bonds Work 

If you have been arrested at a protest not only are you feeling scared of being taken to jail but by now you might be thinking that your immigration status will be affected and perhaps you may even be deported. But don’t fear, you may be constitutionally protected. This guide is not intended to be legal advice, rather use it to help you understand how to respond if you have been arrested in the U.S. while protesting and are afraid that your immigration status may be affected. 

A Brief Background of the First Amendment

Although the First Amendment to the U.S. Constitution makes no distinction between citizens and noncitizens, Supreme Court precedents interpreting the amendment do not always treat these groups the same. The U.S. Supreme Court has consistently said that noncitizens living in this country have free speech rights. (See, for example, Bridges v. Wixon, 326 U.S. 135 (1945).) However, the Court has approved legal restrictions on political contributions (a form of expression) by people who aren’t either citizens or permanent residents (green card holders). That would include people who are here on temporary work, student, tourist, or other “nonimmigrant” visas. (See 52 U.S.C. § 30121; Bluman v. Federal Election Commission, 800 F.Supp.2d 281 (D.C. Cir. 2011); affirmed, 565 U.S. 1104.)

The Booking Process

If you are an undocumented individual and are arrested as a suspect of a crime, you will most likely be taken into police custody and placed in jail. At that point, a criminal case is opened and you are given the same right to an attorney if you cannot afford one. While you may be given a bail amount and you post bail for the criminal offense that you are being charged with, you will not necessarily be released from custody. Instead, certain police departments are instructed to call ICE, Immigration and Customs Enforcement, who will take control of the case and will place you back into custody at an immigration detention center. Depending on the charges, you may also be sentenced to deportation out of the United States. Once you have been sent to a detention facility, the booking process begins.

ICE has the authority to release you based on your own recognizance, which doesn’t require paying for a bond, or they may set a bond amount. If a bond amount is set by ICE, your loved ones will need to help you pay it or you may have to hire someone to help you. Alternatively, depending on your prior criminal record and prior immigration law violations, ICE may place you in removal proceedings. If placed in removal proceedings you will have the right to see an immigration judge and you can request the immigration judge to grant you release under bond during a custody redetermination hearing. 

Types of Immigration Bonds

A Delivery Bond is set for an undocumented individual who has been detained by ICE and has been qualified for the bond by the immigration judge. To qualify for a delivery bond, you must receive an arrest warrant (known as a Notice to Appear) and a notice of the conditions of release from custody. These types of bonds are set to make sure that you show up for all future court hearings in your removal proceedings. It also allows you to spend time with your loved ones instead of being in custody while your case is pending with the immigration court. 

A Voluntary Departure Bond is given as an option in some cases and allows you to leave the country on your own terms and own expenses by a specific date. If the immigration bond is paid in full, it will be refunded to you once you leave the country. However, the bond amount is forfeited if you fail to leave. 

The Cost of Immigration Bonds

ICE or an immigration judge will set the bond amount, and the amount will increase or decrease based on your immigration status, criminal history, employment situation, and family in the United States. The usual minimum amount for a delivery bond is $1,500, and the minimum amount for a voluntary departure bond is usually $500. 

Ways to Pay for An Immigration Bond

  1. Surety Bond – Your loved ones can work with an immigration bondsman to pay for the bond. Usually works the same way as a regular bail bonds agent. 
  1. Cash Bond – Your loved ones can pay the ICE bond in full. There are ICE offices in major cities across the U.S. where your loved one will have to make the bond payment. Once your case is concluded and you have attended all of the immigration court hearings, that amount is fully refunded.
  1. Community Bond Funds Due to the need for funding for our immigrant community, several organizations have set up community funds to assist undocumented individuals to pay their bond.

Helpful Tips

Immigration law is complicated, confusing, and changing all the time. If you’re worried about potential deportation and dealing with a possible violation of your First Amendment rights, it’s probably a good idea to talk with an immigration lawyer or an attorney experienced in both civil rights and immigration law. You may start by contacting the Immigrant Defenders Law Center for a free consultation by emailing them at [email protected]