Can an Undocumented Immigrant Get Bail in New York After Being Charged With a Crime?

Getting arrested is scary for anyone. But for undocumented immigrants, it can be downright terrifying. Many worry that an arrest could lead to deportation. So what happens if an undocumented immigrant gets arrested in New York? Can they get bail? The short answer is yes, undocumented immigrants can get bail in New York. But it’s complicated. Keep reading to learn more.

How Bail Works in New York

First, a quick primer on bail. When someone gets arrested in New York, they usually have to go before a judge pretty quickly for an arraignment. This is where the judge reads the charges and sets bail. Bail is money that you pay to the court to get out of jail while your case is pending. If you show up for your court dates, you get the money back at the end of the case. There are a few options for bail:

• Cash bail – You pay the full bail amount in cash up front
• Bond – You pay a bondsman 10% of the full bail and they pay the rest
• Unsecured bond – You pay only if you miss court
• Release on own recognizance (ROR) – You are released without paying bail

Judges are supposed to consider someone’s ability to pay when setting bail. But in practice, many people can’t afford even low amounts of bail. As a result, people who can’t pay bail may plead guilty just to get out of jail. New York actually changed its bail law in 2020 to address this problem. Now there are fewer types of cases where bail can be set at all.

Can Undocumented Immigrants Get Bail in New York?

So what about undocumented immigrants who get arrested? The short answer is yes, they can get bail in New York. Immigration status does not legally prevent someone from getting bail. The factors a judge considers are the charges and the person’s risk of not coming back to court. Immigration status isn’t supposed to be one of the factors.

But that doesn’t mean bail is easy for undocumented defendants. Many can’t afford even small amounts of bail. And some judges do consider immigration status when setting bail, even though they aren’t supposed to. Some judges view undocumented defendants as flight risks and give them higher bail as a result. This makes bail even harder to pay. But legally, undocumented immigrants have the same right to reasonable bail as citizens do.

What Happens After an Undocumented Immigrant is Arrested?

Arrests of undocumented immigrants play out a bit differently than arrests of citizens. Here’s what normally happens:

1. Fingerprints are sent to immigration authorities
2. Immigration can request the jail hold you for 48 extra hours to arrest you
3. Immigration may visit you in jail to ask questions
4. You see a criminal court judge for arraignment and bail
5. If you make bail, immigration can still arrest you if you’re released

Let’s break this down. First, when an undocumented immigrant is arrested, their fingerprints are automatically sent to immigration authorities. This allows immigration to identify the person as undocumented. Next, immigration can ask the jail to hold the person for up to 48 extra hours, not counting weekends and holidays. This gives immigration time to arrest the person and start deportation proceedings.

While in jail, immigration agents may visit and ask questions or have the person sign papers. Important: do NOT answer questions or sign anything without talking to a lawyer first. Anything you say can hurt your criminal and immigration cases. After arraignment, if bail is set and you can pay it, immigration can still arrest you upon release. So getting bail does not guarantee your freedom if you are undocumented.

How Criminal Charges Can Impact Immigration Status

For undocumented immigrants, criminal charges carry immigration consequences. The law on this is extremely complex, even for immigration lawyers. But generally:

• Minor charges may not impact status
• Certain more serious charges can trigger deportation
• An “aggravated felony” conviction almost always leads to deportation

Your defense lawyer is required to advise you if your charges carry immigration risks. Be sure to ask! It’s crucial to understand the potential immigration consequences before accepting any plea deal.

Protecting Your Rights as an Undocumented Defendant

As an undocumented defendant, you have rights both in your criminal case and against immigration detention. Here are some tips:

• Don’t discuss your immigration status with anyone but your lawyer
• Don’t answer questions or sign anything before talking to a lawyer
• Read all papers fully and ask for an interpreter if needed
• If detained, ask your lawyer about getting released on bond
• File a complaint if you believe your rights were violated

The bottom line is exercise your rights and get a good lawyer. Fighting criminal charges and deportation is incredibly complex. Having an experienced criminal and immigration lawyer on your side can make all the difference.

Finding Help as an Undocumented Defendant

If you’re an undocumented immigrant facing criminal charges, here are some good places to find help:

• Public defender’s office – Ask to be screened for free representation
• Legal aid organizations – Provide free or low-cost lawyers
• ACLU hotline – Reports rights violations (212-549-2666)
• Immigrant bail funds – Help with paying immigration bonds

You may feel alone and scared as an undocumented defendant. But help is out there. Reach out to advocate groups working around the clock to protect immigrant rights. And never forget – you have rights no matter what your status is. Exercise them!