Released 29 March 2016  By Michelle Mendez - CLINIC
Immigration Bond: How to Get Your Money Back
Michelle Mendez CLINIC
Immigration and Customs Enforcement vows to continue mass enforcement of asylum-seeking mothers and children who have entered the United States since January 2014 and have been ordered deported by an immigration judge. Now that immigration courts have been instructed to prioritize these “Adults with Children” cases resulting in quickly scheduled merits hearings, advocates will want to know how to get their bond (“fianza”) money back.
What is an immigration bond and how do I obtain one?
The bond refers to money paid to secure a detained foreign national’s release that serves as a guarantee to the government that, once out of detention, the bonded individual will attend all immigration court hearings. After ICE detains a foreign national, ICE sets the bond amount, assuming the person is eligible for a bond. The bond amount is based on a “risk classification assessment,” which measures the risk to public safety and the risk of flight posed by the particular individual. If the foreign national can afford to pay the bond amount set by ICE, the individual will be released upon payment. If the individual cannot afford to pay the bond amount set by ICE, he or she can request that the immigration judge review and lower the bond amount. 8 CFR §§ 236 and 1003.19(a).
Such review takes place in the context of a bond proceeding, which the regulations require to be “separate and apart” from the individual’s removal proceedings. Id. § 1003.19(d); see also Matter of Chirinos, 16 I&N Dec. 276 (BIA 1977). The standard that applies during bond proceedings and that factors into the decision of whether the foreign national merits a lower bond is whether an alien’s release pending deportation proceedings will pose a danger to the safety of individuals or property and whether the alien is likely to appear for any scheduled proceeding. Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994). In addition, the immigration judge must consider evidence establishing the significant implication of national security interests in cases involving foreign nationals seeking to enter the United States illegally.Matter of D-J-, 23 I&N Dec. 572, 575 (A.G. 2003).
Who is an obligor?
An obligor is the person who pays the bond and completes the paperwork with ICE at the closest ERO Field Office, which is commonly known as “posting the bond.” Call the selected ICE ERO Field Office to ensure that the office accepts bond payment and to ask the preferred manner of payment. While a certified check from a bank or a money order in the amount of the bond made out to the Department of Homeland Security is the preferred method, some ICE ERO Field Offices require a money order from specific sources such the U.S. Post Office. No cash or personal checks are ever accepted.
Only someone who is 18 or older and has legal status can be a bond obligor. Generally, the ICE ERO Field Office requires that the obligor provides a valid Employment Authorization Document, a U.S. birth certificate or passport, an original Certificate of Citizenship or Certificate of Naturalization, or a Lawful Permanent Resident card. In addition to these, the obligor should also bring a state-issued driver’s license. Upon posting the bond, ICE provides the obligor with ICE Form I-352, Immigration Bond, and ICE Form I-305, Receipt of Immigration Officer. The obligor should safeguard the receipt, ICE Form I-305, as it will be required for the bond refund process. Once the ICE ERO Field Office where the obligor posted the bond communicates this completed transaction to the detention center holding the individual, the detention center will release the individual. Communication between the ICE Field Office and the detention center often takes hours, so the obligor will want to post the bond as soon as the office opens to increase the chances of the individual being released the same day.
What happens to the money once I post the bond?
Currently, about 91 percent of the immigration bonds issued each year are secured by cash, while the other 9 percent are issued by surety companies that are certified by the Treasury Department to post bonds on behalf of the federal government. ICE deposits any cash paid as security on cash bonds in a fund maintained by the Treasury Department, known as the Immigration Bond Deposit Account. These funds are held in trust for the obligor and earn the Treasury Department market-based rate effective on the date the obligor posted the bond. Per regulation, from 1971 to June 16, 2015, the interest rate was a set at 3 percent per year. When ICE issues the bond refund, the check should reflect the bond amount paid plus the interest as set by the Treasury Department.
How does the obligor get the bond refund?
Fast-forward to perhaps a year or more after release on bond, and the individual has obtained legal status or he or she has been deported. Either of these outcomes meets the conditions of the bond and triggers a bond refund via its cancellation. Upon its cancellation, ICE sends the ICE Form I-391, Notice Immigration Bond Cancelled, to the DHS Debt Management Center in Vermont and to the obligor at the address he or she provided. For this reason, if the obligor moves after posting the bond, he or she should inform ICE of the new address via ICE Form I-333, Obligor Change of Address. Otherwise, the obligor will not receive notice due to ICE sending it to an incorrect address. In practice, the obligor should affirmatively contact the ICE Field Office to initiate this process, instead of waiting for the ICE Field office to send the ICE Form I-391.
When the obligor obtains Form I-391, Notice Immigration Bond Cancelled, the obligor should send it along with Form I-305, Receipt of Immigration Officer, and a cover letter with a request for the refund to:
Debt Management Center
Attention: Bond Unit
P.O. Box 5000
Williston, VT 05495-5000
If the obligor has questions about immigration bond refunds, it is better to call the Financial Operations of the DHS Debt Management Center at (802) 288-7600 and select option 2 to speak with someone.
If the obligor has misplaced Form I-305, Receipt of Immigration Officer, the obligor can execute a notarized ICE Form I-395, Affidavit in Lieu of Lost Receipt of United States ICE for Collateral Accepted as Security, as a substitute. Ensure the use of the most current version, as these forms, like USCIS forms, expire. For example, the ICE Form I-305 will expire on March 31, 2016.
Because of the requirement that the obligor have legal status, the obligor is often a family friend or acquaintance, rather than an immediate family member of the detainee. This often poses a hurdle in recuperating the bond refund, as the obligor may lose touch with the family of the bonded individual. Unfortunately, even though the obligor merely posted the bond instead of providing the actual funds, the bond will be refunded to the obligor absent a prior assignment by the obligor authorizing someone else to receive the refund.
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