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Can Undocumented Immigrants Get Bail? Answered

Can Undocumented Immigrants Get Bail?

The issue of whether undocumented immigrants can be released on bail while awaiting trial or immigration proceedings is a complex one without a simple yes or no answer. There are several factors that determine if an undocumented immigrant can be granted bail.

Background on Bail

Bail is a process where criminal defendants or immigration detainees pay money or pledge assets to the court in order to be released from jail or detention while their case is pending. The purpose of bail is to ensure that defendants appear at future court hearings and proceedings. If they fail to appear, they forfeit the bail money or pledged assets.For criminal cases, the 8th Amendment to the U.S. Constitution prohibits “excessive bail.” Judges are required to weigh factors like flight risk and danger to the community when setting bail amounts. Those who cannot afford to pay the bail set by the judge are detained until their trial.Immigration detainees do not have the same constitutional right to bail. For immigrants, bail is discretionary and entirely up to the authority of the immigration judge.

The Complex Factors in Bail for Undocumented Immigrants

There are several factors that determine whether an undocumented immigrant can be released on bail:

1. Criminal Defendants vs Immigration Detainees

The first major factor is whether the undocumented immigrant is a criminal defendant facing criminal charges, or an immigration detainee in removal proceedings.For undocumented immigrants who are charged with a crime and awaiting trial, they have the same right to seek bail as U.S. citizens do. Immigration status cannot be the sole factor in denying bail, and judges must weigh flight risk, danger to the community, and ability to pay.However, for undocumented immigrants who are held in immigration detention centers while awaiting deportation hearings, the rules are different. There is no constitutional right to bail, and it is entirely up to the discretion of the immigration judge.

2. Type of Immigration Proceedings

The type of immigration proceedings the undocumented immigrant is in also plays a role. There are three main types:

• Removal proceedings: The most common, where the government is trying to deport the immigrant. Bail is discretionary for immigrants in removal proceedings.
• Expedited removal: A fast-track deportation process for those caught at the border or shortly after entry. Immigrants in expedited removal have no right to see a judge or have a bond hearing.
• Reinstatement of removal: For immigrants deported before who illegally re-entered. They also do not have the right to see a judge or have a bond hearing.

Immigrants in removal proceedings have the best chance at being granted bail, while those in expedited or reinstated removal proceedings have little chance.

3. Stage of Criminal Proceedings

For undocumented immigrants facing criminal charges, the stage of the criminal proceedings also matters. Those awaiting trial in criminal court may be able to get bail through the criminal court system like other defendants.