New York Lawyer's Legal Updates

ICE Denial Of Bond, Is It Still Possible To Receive Bond Or Parole?

Author: Deportation Lawyer Alena Shautsova

Yes, in certain instances after ICE has denied a bond you may appeal through “Judicial Review”. If jurisdiction exists you may be eligible for an appeal through judicial review if all of the following can be proven:

  • ICE has abused its power – when the government deems the release of the petitioner poses a security risk or is not in the public’s best interest, however, they lack “facially legitimate and bona fide” reason for the denial. In essence, if the evidence ICE basis its denial off of was already rejected by the Immigration Judge the evidence is considered implausible.
  • Facially Legitimate and Bona Fide – That the continued detention of the applicant is not against public interest and ICE fails to produce an adequate finding that the continued detention is necessary for security reasons or public interest.

ICE itself can be challenged when:

  • They fail to exercise discretion – If they have not made a decision on your eligibility for parole you can force them to make a decision through administrative review after an elongated period of time has lapsed since the application of bond, usually (X) amount of days.
  • Violation of International Law* – this typically is involved with Asylum cases involving Universal Declaration of Human Rights or the disregard of the American Convention on Human Rights.
  • Denial of Counsel – if perchance ICE denies a petitioner the right to counsel they can be challenged on their decision to deny bond.
  • Due Process or Equal Protection Violations
  • If Detainee must appear before DHS in another proceeding
  • Relying on Impermissible Criteria
  • Use of race or national origin in deciding parole
  • Treatment as Inadmissible instead of Deportable
  • Conditions of detention
  • Where detention is prolonged and/or indefinite
  • Where Lawful Permanent Resident is denied Post-Deprivation Evidentiary Hearing on Parole
  • Where relief has been granted in person’s favor
    • If relief is initially granted in favor of the petitioner but is appealed by ICE they may still have authority to detain the individual. See Clark v. Smith, 967 F.2d 1329 (9th Cir. 1992).

*It should be noted, that International Law of another country nullify in the face of statute or controlling executive acts of the Attorney General or judicial decision

29 December 2014
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