SAMPLE MOTION FOR BOND. Respondent, through counsel, pursuant to 8 C.F.R (b) moves this

Transcription

1 SAMPLE MOTION FOR BOND Respondent, through counsel, pursuant to 8 C.F.R (b) moves this Immigration Judge to grant a low- cash bond to more easily facilitate Respondent s appearance at his pending criminal case and to secure his release from custody. In support of his motion, Respondent states: RESPONDENT S PENDING CRIMINAL MATTER 1. On or around June 2011, Respondent and Respondent s Girlfriend (the mother of his two young children) had a domestic dispute. According to Respondent s Girlfriend, she was intoxicated and initiated the fight. (Exhibit A, Affidavit of Respondent s Girlfriend, 3 ). Respondent only pushed Respondent s Girlfriend away to keep Respondent s Girlfriend from punching him. Id. A nearby security guard called the police. Id. 3. The police arrived and arrested Respondent despite Respondent s Girlfriend s protestations. Id. The police also accused Respondent of physical abuse, which Respondent s Girlfriend maintains is inaccurate. Id. 2. Respondent s Girlfriend states that Respondent is not abusive and has never physically abused her. Id. 5. She also states that she wish[es] this had never happened and that [t]his whole incident has turned into a huge mess. Id. 3. On June 24, 2011, the statement of charges against Respondent was issued and he was taken into Maryland State custody. (Exhibit B, District Court for Baltimore County Docket). The next day, on June 25, 2011, Respondent was released from state custody on bond. Id. 4. Three months later, on September 22, 2011, Respondent appeared for his criminal trial and was convicted of second- degree assault. Id. The district court sentenced 1

2 Respondent to one year incarceration, all suspended but two months, and placed him on two years probation. Id. 5. On October 21, 2011, Respondent appealed his conviction to the Circuit Court for Baltimore County, Maryland ( circuit court ) (Exhibit C, Notice to Appeal). 1 As a result of Respondent s appeal, his criminal case " is treated as a wholly original proceeding as if the charges had not been heard before and no decision had been rendered. " Garrison v. State, 350 Md. 128, 136 (1998) (quoting State v. Jefferson, 319 Md. 674, 681, (1990)); accord Md. Code Ann., Cts. & Jud. Proc. Art (f). 6. On or around October 24, 2011, an attorney from the Maryland Office of the Public Defender, District of Baltimore County, was appointed as defense counsel for Respondent s criminal case in circuit court. 7. After Respondent was released from state custody, he was immediately taken into the custody of Immigration and Customs Enforcement ( ICE ). ICE transferred him from Baltimore County to Worcester County Jail in Snow Hill Maryland, which is his current location and which is several hours from his family and his criminal attorney. RESPONDENT IS ELIGIBLE FOR CANCELLATION OF REMOVAL, INA 240A(b) 8. Respondent has resided in Maryland since, at least, He met Respondent s Girlfriend in August 2006, and they have two small children together, ages two and five. (Exhibit A, 1; Exhibit D, copies of birth certificates for Repondent s children). Respondent is a dedicated father who provides financial and emotional support to his family. Exhibita A,. at Respondent s district court sentence is not stayed pending appeal. Therefore, he is still subject to probation. 2

3 9. Depending on the outcome of Respondent s criminal trial, he is prima facie eligible for cancellation of removal, because he has been physically present in the United States for a period of not less than 10 years. INA 240A(b). And, his removal would result in exceptional and extremely unusual hardship to his United States citizen children. Id. RESPONDENT IS NOT SUBJECT TO MANDATORY DETENTION 10. Respondent is not subject to mandatory detention, because his conviction is not yet final. INA 236(c) provides that an alien is subject to mandatory detention, when the alien (A) is inadmissible by reason of having committed any offense covered in section 212(a)(2) [8 USCS 1182(a)(2)], (B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) [8 USCS 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)], (C) is deportable under section 237(a)(2)(A)(i) [8 USCS 1227(a)(2)(A)(i)] on the basis of an offense for which the alien has been sentence [sentenced] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 212(a)(3)(B) [8 USCS 1182(a)(3)(B)] or deportable under section 237(a)(4)(B) [8 USCS 1227(a)(4)(B)]. 11. Because Respondent appealed his conviction to circuit court, his criminal proceedings begin anew, as if the charges had not been heard before and no decision had been rendered. " Garrison, 350 Md. at 136 (quoting Jefferson, 319 Md. at 681). Respondent has been convicted of no crime, and thus is not inadmissible or deportable on the basis of any conviction. Accordingly, the mandatory detention statute does not apply to Respondent. 3

4 12. Rather, INA 236(a) applies, which provides that the Immigration Judge may release Respondent on bond. THE COURT SHOULD GRANT RESPONDENT A LOW- CASH BOND 13. In Matter of Patel, 15 I&N Dec. 666 (BIA 1976), the Board of Immigration Appeals ( BIA ) explained that [a]n alien generally is and should not be detained or required to post bond except on a finding that he is a threat to the national security, or that he is a poor bail risk. Id. at 666 (citations omitted); accord In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006); Matter of Andrade, 19 I. & N. Dec. 488, 489 (BIA 1987). 14. Immigration Judges may look to a number of factors in determining whether an alien merits release from bond, as well as the amount of bond that is appropriate, including but not limited to: (1) whether the alien has a fixed address in the United States; (2) the alien's length of residence in the United States; (3) the alien's family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien's employment history; (5) the alien's record of appearance in court; (6) the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien's history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien's manner of entry to the United States. In re Guerra, 24 I. & N. Dec. at 40; Matter of Andrade, 19 I. & N. Dec. at There has been no showing that Respondent is a threat to national security. Although he has pending criminal charges, Respondent s Girlfriend explains that they resulted from a fight in which she was the aggressor and in which Respondent pushed her away only in self- defense. (Exhibit A, at 3). Moreover, Respondent, having appealed from 4

5 district court, has no final conviction, and thus has not been convicted of a crime of violence. With no other criminal history, Respondent presents no threat to the safety or security of the community. 16. Respondent is not a flight risk and will appear before the Immigration Court for any hearings. Indeed, the district court released Respondent on bond in June 2011 and Respondent faithfully appeared for his criminal trial in September See supra, 3-4. Respondent has lived in Maryland since at least 2001 and has two small children, for whom he provides financial and emotional support. (Exhibit A, 2, 6, 7). Since Respondent s detention, his son has become more physically aggressive and is upset more easily. (Exhibit A, 7). Because of these changes in behavior, Respondent s son s teachers have referred him to a behavioral specialist. Id. Therefore, Respondent has even more reason to stay close to his family in Maryland. 17. Respondent s district court sentence is extant; if released, Respondent is still subject to conditions of probation, which requires regular meetings with a probation officer. Respondent will reside with family friends, Mr. and Mrs. X, if released from DHS custody. Id. 9. In sum, Respondent s supportive family network and his past criminal court appearance provide assurance that he will appear for all future court appearances. 18. More importantly, Respondent s transfer into DHS custody, which resulted in his transfer to Worcester County Jail hours away from his criminal attorney, significantly interferes with his access to his criminal defense attorney, and thus is a substantial disadvantage to him in the defense of his pending criminal charges. See Cobb v. Aytch et al., 643 F.2d 946, 957 (3d Cir. 1981) ( Unlike sentenced prisoners, who... must look to state law for the protection of their personal liberties, pretrial detainees have interested firmly 5

6 grounded in federal constitutional law ;... We agree with the district court that transfers of pretrial detainees, at a minimum, significantly interfered with their access to counsel. ). As Respondent s criminal attorney indicates, Respondent s pretrial transfer to Worcester County Jail makes communicating with him very difficult; poses problems with coordinating the availability of an interpreter; and is much harder to secure his appearance at his criminal trial. (Exhibit E, letter 11/30/2011 from public defender). Therefore, to protect Respondent s right to effective assistance of counsel, the Court should grant Respondent a low- cash bond. CONCLUSION 19. For all of the above reasons, Respondent respectfully requests that the Court grant him an affordable, low- cash bond. Respectfully submitted: [SIGNATURE] 6