Kirk Lewis 0000-00-00 00:00:00
“How soon can I get out of this jail?” Likely the question most asked by those who have just been arrested and booked into jail. Granted, there are many factors that play into whether an individual can be released from jail. However, the prospect of getting released from jail while their case is still pending is a much more difficult task for an illegal immigrant. In Arizona, and especially Maricopa County, immigrants detained in state criminal matters are held non-bondable with an ICE hold for an otherwise bondable offense. Consequently, that means that if the individual posts bond they will only be released into ICE custody. The unfortunate consequence for such an individual is that the prospect of litigating their case out of custody is very unlikely. However, with the right information, and under certain circumstances, counsel can successfully modify the immigrant’s release conditions, making them bond eligible even though the immigrant has an ICE hold. A defendant is held non-bondable pursuant to Arizona Revised Statutes (A.R.S.) section 13-3961. Under A.R.S. § 13-3961(A)(5) a person in custody is not admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following: 5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States Illegally. For the purposes of this paragraph: (a) The court shall consider all of the following in making a determination that a person has entered or remained in the United States Illegally: (i) Whether a hold has been placed on the arrested person by the United States Immigration and Customs Enforcement. (ii) Any indication by law enforcement agency that the person is in the United States illegally. (iii) Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally. (iv) Any information received from a law enforcement agency pursuant to A.R.S. § 13-3906. (v) Any evidence that the person has recently entered or remained in the United States illegally. If a finding has already been made by the court that the defendant is non-bondable pursuant to A.R.S. § 13-3961(A)(5), then a motion to modify the defendant’s release conditions is proper if new evidence is available that was not previously considered. It is at this juncture where counsel must obtain information from the defendant regarding his immigration status. More specifically, if the defendant has already initiated the immigration process and is awaiting their hearing date before a Federal Immigration Judge, then the defendant should be eligible to obtain bond and be released upon posting bail. In many instances, an immigrant is detained by immigration authorities, presented before an immigration judge, and given a bond. Upon posting their immigration bond, the individual is permitted to remain in the United States and out of custody as long as the individual attends their immigration hearings. The time period for such hearings could take as long as five years here in the Phoenix Immigration Courts. During that time period, the individual is permitted to remain in the United States and out of custody, and in certain situations may obtain a work permit and an Arizona driver’s license. Analyzing A.R.S. § 13-3961(A)(5) advises that if an individual entered, or remained in the United States illegally and is charged with a serious felony, then the individual is not eligible for a bond. With the information and documentation that your client has bonded out of immigration previously and was awaiting an immigration hearing when they were arrested on the criminal offense, that individual may have entered the United States illegally, but they are now legally in the United States awaiting their immigration hearings. More often than not, the prosecutor for such a case will make a call to the Immigration and Customs Enforcement and ask if the defendant has any legal status. While it is true that at that moment the individual is not a United States citizen or Lawful Permanent Resident, the defendant is still permitted by ICE and the Federal Immigration Court to remain in the United States, out of custody, while the immigration case is pending. Such information can now be used on the defendant’s behalf to overcome A.R.S. § 13-3961(A) (5) by establishing that the defendant is presently “legal” to be in the United States. Thus, by requesting a hearing to modify release conditions and presenting evidence that the individual is currently released on bond by Immigration and Customs Enforcement and legally awaiting their immigration hearings out of custody, the defendant can establish that they are currently in a “legal” status and eligible for a bond (as long as the other requirements for bond are satisfied). Lastly, now that the individual has been permitted to post a bond and be released from custody, they still may have an ICE hold. It then becomes imperative that the defendant or counsel speak with an immigration attorney to ascertain the possibility of the defendant being released from ICE custody if they post bond with the State. The last thing the defendant wants is to post bail for the criminal case and wind up with an arrest warrant on that same case because ICE held the individual without the opportunity of release. However, if they are released from ICE custody they should be available to appear for all their criminal court hearings without any issues. Appropriately enough, the answer to one of the most frequent questions of when a person can get out of jail is, “it depends.” Knowing when a defendant fits into the category of illegal immigrants that can obtain bond and continue their case out-of-custody will give counsel the satisfaction of being able to answer their question with the response that the defendant wants to hear, “let’s get you out of jail!”
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