REPRESENTING CLIENTS IN BOND HEARINGS AN INTRODUCTORY GUIDE

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1 Advisry Bard Hn. Jhn Burtn Hn. Nancy Pelsi Hn. Cruz Reyns Bard f Directrs Cynthia Alvarez Richard Bswell W. Hardy Callctt Eva Grve Bill Ong Hing Lisa P. Lindelef Anita I. Martinez Michelle Mercer Tni Rembe Rudy Ruan Guadalupe Sirdia-Ortiz Lisa Spiegel Reginald D. Steer Alan Tafaplsky Mawuena Tendar Hn. James L. Warren (Ret.) Allen S. Weiner Rger Wu General Cunsel Bill Ong Hing Of Cunsel Dn Ungar Executive Directr Eric Chen REPRESENTING CLIENTS IN BOND HEARINGS AN INTRODUCTORY GUIDE This guide prvides an verview t representatin in the immigratin bnd cntext. Representing smene in bnd hearings can be incredibly impactful. Being released frm detentin means being present with friends and family, aviding harmful detentin cnditins, better access t cunsel, and can greatly imprve smene s chance at winning their case. Nt nly that, representing smene in bnd hearings is dable. Special thanks t Orrick, Herringtn & Sutcliffe LLP, Kirkland & Ellis LLP, Winstn & Strawn LLP, and Legal Intern Sarah Lakhani, fr yur supprt in the creatin f this guide. Part I: Basic Bnd Tpics cvers basic issues yu are likely t encunter when representing yur client in a bnd case. Specifically, we will cver hw t: 1. Lcate yur client and assess bnd eligibility 2. Enter yur representatin and request a bnd hearing 3. Present yur bnd case 4. Pay bnd Part II: Advanced Bnd Issues. Because f sme very harsh laws surrunding immigratin bnds, nt everyne will have access t a bnd hearing. Hwever, this is a cmplex legal determinatin and ne which shuld always be challenged. If yu are interested in mre cmplex bnd hearing issues, refer t Part II: Advanced Bnd Issues. 1. Mandatry Detentin 2. Aviding Transfer PART 1: TYPICAL BOND ISSUES San Francisc 1663 Missin Street Suite 602 San Francisc, CA t: f: Washingtn D.C th Street, NW Suite 100 Washingtn, DC t: f: ilrc@ilrc.rg Step 1: Lcate yur client and assess bnd eligibility Finding yur client One f the first steps yu shuld take is ensuring that yu knw where yur client is detained. Technically, peple can be transferred t immigratin detentin centers anywhere in the United States, thugh peple may be detained clser t hme. 1 Use Immigratin and Custms Enfrcement s (ICE) Online Detainee Lcatr System 2 t find ut where yur client is in custdy. Yu can search fr yur client by 1) his r her Alien Registratin Number (Alien Number r A-Number) 3 and cuntry f birth; r 2) by his r her first and last name and cuntry f birth. Keep in mind that this database is nly fr individuals wh are 18 years f age r lder. 4 If yu have truble lcating a client, cntact yur lcal 1 Fr a map f immigratin detentin centers natinwide, see: 2 See 3 The A-Number is a unique seven-, eight- r nine-digit number assigned t a nncitizen at the time his r her A-file is created. The 9-digit USCIS number listed n the frnt f Permanent Resident Cards (Frm I-551) issued after May 10, 2010 is the same as the Alien Registratin Number. The A-Number can als be fund n the back f these Permanent Resident cards. See 4 Children classified as Unaccmpanied Alien Children (as defined in 6 U.S.C. 279(g)(2)) are detained by the Office f Refugee Resettlement (ORR), a part f the Department f Health & Human Services, rather than ICE. The lcatin 1 September 2017

2 Enfrcement and Remval Operatins ffice (ERO). 5 Hwever, yu shuld nly d this if yu are certain that they are in ICE custdy. Often family members are lking fr the ne apprehended, but dn t knw fr sure that the arrest is immigratin related. We dn t want t alert ICE f a ptential criminal arrest fr smene at risk f remval. Frm I-286 and ICE s initial custdy determinatin When smene is first arrested by ICE, they are taken t a lcal ICE prcessing ffice where an ICE fficer makes a custdy determinatin, deciding whether the persn shuld remain in custdy r shuld be released. Technically, this is the persn s first custdy determinatin. The secnd ne will be in frnt f the Immigratin Judge (the bnd hearing). An ICE fficer fills ut Frm I-286, the Ntice f Custdy Determinatin, which prvides the details f this determinatin. f detained juveniles is cnfidential, but parents r spnsrs may cntact the ORR Helpline fr infrmatin, at (800) Attrneys must make a request t ORR fr infrmatin fllwing ther prcedures. See There is currently nging litigatin surrunding the right f unaccmpanied minrs t request release n bnd. The Ninth Circuit has fund that all detained children have a right t a bnd hearing. Please see, ILRC Practice Alert, Practice Alert n Flres v. Sessins: Ninth Circuit Hlds that All Detained Children Have the Right t a Bnd Hearing (July 2017), available at 5 See t lcate yur lcal Enfrcement and Remval Operatins (ERO) ffice. 2 September 2017

3 ICE may d ne f three things. First, ICE may release the persn with n bnd (this is called release n wn recgnizance ). If this is the case, the I-286 bx released n yur wn recgnizance will be checked and the persn receives an Order f Release n Recgnizance specifying any terms f release. Secnd, ICE may release the persn under supervisin r special cnditins. 6 If this is the case, the I-286 bx released n yur wn recgnizance will be checked and the persn receives an Order f Release n Recgnizance specifying the terms f release. Third, ICE may chse t detain the persn and set a mnetary immigratin bnd, which is listed n the I- 286 (the bx released under bnd in the amunt f $ will be checked). This amunt can vary greatly depending n ICE s determinatin f hw likely it is that the persn will appear at later hearings. ICE can als decide t nt issue a bnd r release the immigrant by marking the bx detained in the custdy f the Department f Hmeland Security. Sme individuals will nt be eligible fr bnd. Ntably, arriving aliens and immigrants with certain criminal cnvictins r terrrism cncerns can be subject t mandatry detentin, which is discussed in Part 2: Advanced Bnd Issues. If ICE believes an individual is subject t mandatry detentin, the bxes n Frm I-286 indicating, (1) detained in the custdy f the Department f Hmeland Security and (2) Yu may nt request a review f this determinatin by an immigratin judge because the Immigratin and Natinality Act prhibits yur release frm custdy will be marked. Advcates shuld always d their wn assessment and where apprpriate, challenge a determinatin f mandatry detentin. Imprtantly, yur client may seek review f ICE s initial custdy determinatin in frnt f an immigratin judge (see Step 2: Requesting a bnd hearing). Even in cases where the gvernment has indicated that yur client is nt eligible fr bnd, yur client may appear in frnt f the immigratin judge t challenge that finding. See Part II. T evaluate the cntent f ICE s initial custdy determinatin, ask yur client fr his r her I-286 as sn as pssible. If yur client des nt have access t the I-286 in detentin, ask if a family member can help btain 6 ICE currently maintains three f these Alternative t Detentin, r ATD, prgrams: (1) Intensive Supervisin Appearance Prgram (ISAP), which includes private cntractrs mnitring respndents thrugh telephnic reprting, radi frequency, GPS (ankle bracelets), and unannunced hme visits; (2) Enhanced Supervisin/Reprting (ESR), which invlves a private cmpany using the same methds as ISAP; and (3) Electrnic Mnitring, which ICE perates with the same methds. See ICE, Alternatives t Detentin fr ICE Detainees (Oct. 23, 2009), AILA Dc. N See als 8 CFR 236.1(d), (d); INA 236(a)(2)(B). 3 September 2017

4 it. The ICE fficer in charge f yur client s case may als be able t get yu a cpy. Anther ptin is t cntact the ICE Office f Chief Cunsel t lcate the gvernment lawyer (ften called the Trial Attrney, r TA ) assigned t yur client s case. Under Dent v. Hlder 7 in the Ninth Circuit, the TA shuld allw yu t review the I-286. Knw that in rder t cmmunicate with ICE n yur client s behalf, yu will need t file a G-28 with the agency t enter yur representatin (see Step 2: Entering representatin). As a practical matter, investigating the pathways t btaining the I-286 can be time-cnsuming. They may nly be feasible if yu are retained befre yur client s bnd hearing has been set r several weeks in advance f a scheduled hearing. This means that in practice, yu may nt be able t review yur client s I- 286 befre appearing in Immigratin Curt fr the bnd hearing. Hwever, yu can ask t review the I-286 at the hearing. It is best t ask the ICE attrney befre ging n the recrd, just in case it changes yur strategy. Fr instance, if yu learn a lw bnd has already been set, yu might want t cntinue the case and check in with the client abut whether it is better t pay the bnd set by ICE. PRACTICE TIP: If yu have been retained as cunsel by a detained persn fr whm ICE has nt yet made a custdy determinatin (in this case, there wuld be n I-286), advcate with ICE fr yur client s release befre remval prceedings are initiated. ICE fficers can exercise prsecutrial discretin and release individuals in their custdy. Persuade them t d s by emphasizing yur client s equities (see Step 3: Equities) r ptential relief pprtunities, such as family adjustment r Temprary Prtected Status (TPS). PRACTICE TIP: Always d yur wn assessment f a client s bnd eligibility, since ICE may get the initial custdy determinatin wrng. Be especially critical if ICE believes yur client is subject t mandatry detentin, as that determinatin is very tricky. Additinally, always screen yur client fr criminal histry. Yu might learn that yur client has cnvictins that impact bnd eligibility. Step 2: Enter yur representatin and request a bnd hearing Entering representatin In rder t cmmunicate with Department f Hmeland Security (DHS) emplyees (i.e., ICE and USCIS) n yur client s behalf, yu must file a Ntice f Entry f Appearance as Attrney r Accredited Representative, Frm G-28, 8 with the agency. Typically, yu must submit a paper versin f the G-28 that includes yur and yur client s riginal signatures. Hwever, Enfrcement and Remval Offices (ERO), will ften accept faxed G-28s. With this frm, yu will be able t speak with the custdy fficer abut imprtant issues in yur client s case including, where yur client is held, what custdy decisins have been made, and details arund yur client s release nce bnd is granted and paid. T represent yur client befre the immigratin curts, yu must be registered with the Executive Office fr Immigratin Review s (EOIR) e-registry system 9 and have a Ntice f Entry as Attrney r Representative befre the Immigratin Curt, Frm E-28, 10 n file in the particular case. Nte that the E-28 includes a bx where yu must indicate whether yu are entering yur appearance fr all prceedings, the custdy prceeding nly, r all prceedings ther than custdy and bnd prceedings. The E-28 des nt need t be signed by yur client. Yu must serve a cpy f the E-28 n the gvernment attrney at the beginning f the bnd hearing F.3d 365 (9th Cir. 2010). 8 Be sure t use the mst recent versin f Frm G-28. See t access the frm. Fr mre infrmatin n the G-28, see 9 Fr infrmatin abut e-registry and t cmplete the registratin prcess, see See fr e-registry infrmatin specific t each immigratin curt. 10 Be sure t use the mst recent versin f Frm E-28. See t access the frm. 4 September 2017

5 Once yu re e-registered, yu can use e-filing t electrnically file the E-28 in mst circumstances. 11 Hwever, if yu electrnically file an E-28 clse t a hearing, yu may be required t cmplete a paper E-28 at the hearing. Als, if yu file the E-28 electrnically, yu dn t need t file a paper versin f the frm with the curt but yu d need t serve the gvernment attrney with a printed cpy f the e-filed frm at the beginning f the bnd hearing. Requesting a bnd hearing After ICE has made an initial custdy determinatin t detain yur client, he r she may seek review f the decisin in frnt f the immigratin judge. 12 This is technically called a bnd redeterminatin hearing, but is ften referred t simply as a bnd hearing. 13 Mst cmmnly, a persn requests a bnd redeterminatin hearing by marking the I-286 bxes indicating I d request a redeterminatin f this custdy decisin by an immigratin judge and I acknwledge receipt f this ntificatin, and signing the frm at the time f ICE s initial custdy determinatin. Hwever, a bnd hearing may als be requested rally (in curt), in writing (via written mtin fr bnd redeterminatin), r, at the discretin f the immigratin judge, by telephne. 14 Typically, attrneys request a bnd hearing in curt r via written mtin. Hwever, it is apprpriate t call the curt clerk t inquire - ther curts will ften accept a call t the curt clerk t schedule the hearing. A bnd hearing may be requested fr an individual in remval prceedings at any time after the persn is in ICE custdy. 15 This means that yu can ask fr a bnd hearing befre a Ntice t Appear (NTA) is filed with the Immigratin Curt r yur client has his r her first hearing. 16 Once yu request a bnd hearing, the immigratin judge will prbably schedule ne a few days t a few weeks away. It will likely be yur nly pprtunity fr a bnd hearing, s be sure t have all f yur evidence ready befre yu ask fr the hearing. If yur client requested a bnd hearing befre retaining yu and yu have nt had adequate time t prepare, cnsider asking the immigratin judge fr a cntinuance (delay in hearing date). The judge will prbably grant yur request and reschedule the hearing fr tw r three weeks away. In deciding whether t g frward with the riginally scheduled bnd hearing r defer it, yu and yur client must weigh the value f a cntinuance fr case preparatin against yur client s desire t try t get ut f detentin immediately. PRACTICE TIP: Dn t rely n the number fr Bnd Hearing dates. Many practitiners call t learn f upcming curt dates fr new clients. This system will prvide the next master calendar r merits hearing date in remval prceedings. Bnd prceedings infrmatin is nt in this system. Yu must call the Immigratin Curt Clerk t determine if there is a bnd hearing date in a case. 11 Fr infrmatin n e-filing the E-28, see (pp. 6-7). Nte that e-filing the E-28 is nt mandatry. EOIR cntinues t accept paper submissin f the E Whereas ICE s initial custdy determinatin happens as a matter f curse, yu must practively request a bnd hearing. 13 See 8 CFR 3.19, 236.1, , and CFR (b). 15 INA CFR (a). Hwever, immigratin judges have n jurisdictin ver bnd hearings fr individuals wh have nt been issued and served an NTA in relatin t remval prceedings pursuant t 8 CFR Immigratin judges als have n jurisdictin ver Visa Waiver Prgram individuals in asylum-nly prceedings. Matter f Werner, 25 I&N Dec. 45 (BIA 2009). 5 September 2017

6 Step 3: Present yur bnd case Nw that there is a pending bnd hearing, the next step is ensuring that yu are prepared t present the bnd case. What the Judge Can D An immigratin judge can nly re-determine a bnd that has been previusly set. This is why yu want t knw what ICE determined initially. At the bnd hearing, the immigratin judge may lwer the bnd amunt set by ICE, maintain it, r increase it. PRACTICE POINT: In the past, immigratin judges denied that they had authrity t grant release n cnditinal parle as an alternative t release n a mnetary bnd. Hwever, a class actin lawsuit, Rivera v. Hlder, 17 held that immigratin judges are permitted t grant parle instead f a mnetary bnd. While nly binding in Washingtn State, Rivera may be helpful in making this argument in ther jurisdictins. The immigratin judge may lwer the bnd amunt set by ICE, maintain it, r increase it. The lwest bnd a judge can set is $1,500, and there is n maximum. Therefre, depending n yur client s equities and the assigned judge, yur client may want t rethink whether requesting a bnd redeterminatin hearing is prudent. Example: Manny is in custdy, and his bnd has been set at $10,000. His brther can nly cme up with $3,000 t get him released. Manny has a bnd redeterminatin hearing. Thrugh evidence, he persuades the judge that he is likely t cme back fr all future hearings and he des nt pse a danger. The judge agrees t lwer Manny s bnd t $3,000. Manny s brther can nw pst the bnd, and Manny will g free. Example: Laura has three past DUI cnvictins, and is nw in ICE detentin after her last arrest. Her ICE fficer believed in her supprt system, and against the nrmal practice f her ffice, authrized release n a bail f $7,000. If Laura chses t have a bnd hearing, it is imprtant she understands that the immigratin judge culd increase her bnd as well as lwer it. Many judges wuld set a higher bnd in Laura s case, s she will need t cnsider whether it is better t find a way t pay $7,000. The immigratin judge will usually issue his r her bnd decisin rally. Smetimes, as in the case f an appeal, the judge will prvide a written decisin. In traditinal bnd prceedings, a persn nly gets ne pprtunity t present his case fr bnd befre the curt. Fllwing the judge s decisin, a request t recnsider the bnd will nly be allwed if circumstances have changed materially since the prir bnd determinatin. 18 Such a request must be made in writing. Additinally, bth the nncitizen and ICE can appeal the immigratin judge s custdy determinatin t the Bard f Immigratin Appeals within 30 days. 19 T d s, reserve appeal at the end f the immigratin bnd hearing. While the appeal is pending, the remval case will cntinue as nrmal and yur client will remain detained pending appeal Rivera v. Hlder, 307 F.R.D. 539, 553 (W.D. Wash. 2015) CFR (e). This rule is separate frm certain appellate curt hldings requiring a new bnd hearing after a certain amunt f time f prlnged detentin. Fr instance, under Rdriguez, the IJ must set a bnd hearing after 6 mnths f detentin, regardless f whether the persn already had a bnd hearing. See Part II f this guide CFR 236.1(d)(3)(i), (f), One exceptin t this is where yur client succeeds in having the bnd paid, and btains release, befre ICE files a ntice f intent t appeal with the curt. 6 September 2017

7 Prving the Bnd Case a. Burden f prf Yur client has the burden f prving that he r she merits bnd by prving that 1) he r she des nt pse a danger t the cmmunity 21 and, 2) is nt a flight risk. 22 Yur client als must prve that he r she is nt a threat t natinal security. 23 b. Dcumenting the case i. Danger t the cmmunity The immigratin judge assesses an individual s danger t the cmmunity based n: Yur client s criminal histry in the recrd, the number f arrests/cnvictins, the nature f the arrests/cnvictins, the length f sentences, yur client s cmpliance with sentences, and his r her recrd f rehabilitatin. Yur client s criminal histry nt in the recrd but disclsed by yur client. Testimny regarding negative r illegal cnduct r illegal cnduct that yur client may nt have been arrested fr. Bnd determinatins are discretinary and the immigratin judges can attach significance t arrests even if they did nt ultimately result in cnvictins. Prving that yur client is nt a danger t the cmmunity r a threat t natinal security is particularly imprtant if yur client has a criminal histry, including arrests that did nt lead t cnvictins. PRACTICE POINT: The Ntice t Appear (NTA) is nt a rap sheet. D nt rely n the NTA as an indicatr f yur client s criminal histry. Sme ptins fr getting yur client s criminal recrds include: 1. As a starting pint, ask yur client, but never rely slely nly n yur client s memry. 2. If yur client knws where he r she was arrested, check with the individual curts where he r she may have appeared. Get a signed release f infrmatin s that yu can request files directly frm the prir criminal defense attrney. 3. Have yur client request an Identity Histry summary frm the Federal Bureau f Investigatin 24 and/r a recrd clearance frm the relevant state (fr example, the Califrnia Department f Justice). 25 Keep in mind that bth requests require the submissin f fingerprints, which may be difficult r impssible t btain if yur client is detained Check the I Althugh yu never want t admit t facts in the I-213 in curt, the frm may include general infrmatin abut what ICE knws abut yur client. 21 Matter f Urena, 25 I&N Dec. 140, 141 (BIA 2009) (clarifying that an immigratin judge may nt release a persn n bnd wh has nt met his burden f demnstrating that his release wuld nt pse a danger t prperty r persns ). See als 8 CFR 236.1(c)(8), (c)(8). 22 Matter f Guerra, 24 I&N Dec. 37 (BIA 2006). 23 Matter f D-J-, 23 I&N Dec. 572 (AG 2003) (Attrney General s discretin t detain nt limited t danger and flight risk; justifying detentin f Haitian asylum seekers based n the gvernment s asserted natinal security interest in deterring mass migratin f Haitians by bat). See als Matter f Khalifah, 21 I&N Dec. 107 (BIA 1995) (deeming persn a terrrist where persn facing serius criminal charges in anther cuntry in a prceeding whse fairness is in dubt). 24 See 25 See 26 Sme advcates have successfully had the jail r immigratin detentin center take the fingerprints. 27 The I-213 ( Recrd f Deprtable/Inadmissible Alien ) is a DHS dcument that is used t prve alienage in a remval prceeding. An ICE fficer cmpletes the frms upn arresting a nncitizen, befre placing him r her in remval prceedings; it includes persnal details abut the nncitizen and infrmatin abut the arrest. 7 September 2017

8 5. In the Ninth Circuit, ask the ICE attrney fr an pprtunity t review yur client s Alien-file ( A-file, the file maintained by varius gvernment agencies fr each alien n recrd) under Dent v. Hlder. 28 PRACTICE POINT: Keep in mind that a particular crime des nt need t be alleged r charged in the Ntice t Appear (NTA) t trigger mandatry detentin n the basis f that crime. 29 Fr mre infrmatin, see Part 2: Advanced Bnd Issues. PRACTICE TIP: In recent years, immigratin judges and ICE have becme especially strict n substance abuse, particularly when it leads t a Driving Under the Influence (DUI) charge. While a DUI may seem like a relatively minr ffense, put extra effrt int rehabilitatin and a strng system f accuntability and supprt if a DUI is present. When tackling the danger t sciety cmpnent f a bnd case, the best strategy is t research the facts and mitigate bad facts with cntext and equities. Time permitting, find ut as much as pssible abut what happened during the cmmissin, r alleged cmmissin, f any crimes. Request plice reprts, talk t the previus defense attrney, talk t thers with knwledge f the crimes, and interview yur client extensively. Nte, in many cases the ICE attrney will submit the plice reprt related t yur client s criminal ffense(s). While yu shuld always bject, these reprts will likely be entered int evidence. Make sure yu have reviewed these and if yu are in a jurisdictin that takes testimny make sure that yur client has been prepared t talk abut his r her criminal ffenses. Rehabilitatin is critical. Cllect evidence f any past rehabilitatin (e.g., treatment prgram cmpletin, prbatin cmpliance) and testimny frm family r cmmunity members regarding yur client s gd character r rehabilitatin. Als, create a plan fr future rehabilitatin. Fr example, if yur client is an alchlic, establish where and when yur client will receive treatment upn release. Discuss hw family/friends will be supprtive in this rehabilitatin, including transprtatin t wrk, transprtatin t AA meetings, etc. Yu want t ensure the judge that when yur client is released, there is an established path t recvery. If yur client has substance abuse issues, nte als that substance abuse can affect memry and the ability t recall imprtant details. Finally, where there is a cnvictin, it is imprtant fr the client t take respnsibility fr what they have dne. Clients smetimes state that they did nt d what they were cnvicted f. Hwever, immigratin curt is nt anther pprtunity t litigate the criminal case, and it will hurt yur client t deny respnsibility if there is a criminal cnvictin. In a wrld where many criminal cnvictins are a result f plea bargaining, admitting guilt can smetimes be prblematic fr yur client. Yu might need t discuss the criminal cnvictin in detail t determine fr which cnduct yur client will be able t take respnsibility. It is imprtant t explain t yur client that they cannt revisit the criminal cnvictin, and a finding f guilt is already part f the recrd. If yur client is questined regarding events that were charged but have nt yet been adjudicated in criminal curt, direct yur client t assert their Fifth Amendment right t silence. Anything yur client says in immigratin curt culd be used against yur client in a future criminal prceeding. ii. Flight risk (including relief) Flight risk refers t the likelihd that yur client will shw up fr their immigratin hearings in curt. In assessing flight risk, the immigratin judge takes int cnsideratin a large number f factrs cllectively F.3d 365 (9th Cir. 2010) (hlding that gvernment s failure t prvide nncitizen cpy f his A-file when cntents bre n nncitizen s case vilated nncitizen s due prcess rights and that nncitizen was entitled t cpy f his A-file under mandatry access prvisin f remval statute). 29 In re Ktliar, 24 I&N Dec. 124 (BIA 2007). 8 September 2017

9 knwn as bnd equities. Thus, in preparing fr the hearing, the advcate shuld cllect evidence addressing bnd equities as well as danger/security cncerns. The curt assesses flight risk thrugh several factrs including the fllwing: 1. Whether the persn has a fixed address in the U.S.; 2. the length f residence in the U.S.; 3. family ties; 4. emplyment histry; 5. recrd f appearance in curt; 6. criminal histry (including hw recent and serius); 7. histry f immigratin vilatins; 8. attempts t flee prsecutin; 9. manner f entry int the United States; 30 and 10. immigratin relief avenues. 31 The curt is attempting t assess yur client s incentives and likelihd t appear at future hearings. The mre evidence yu present t shw that yur client is nt a flight risk thrugh these factrs, the lwer the bnd will likely be. Permanent Address and Length f Residence: A stable address is very imprtant. The lnger a client has resided at ne address, r in ne twn, the better. Sample Evidence: Lease agreement r prf f prperty tax payments. Family Ties: If a client has relatives (a spuse r children, fr example) wh are either U.S. citizens r lawful permanent residents, the judge will be mre likely t believe that a client s ties t the cmmunity are real and strng. This is especially true if the family has lived in the area fr a cnsiderable length f time r if the family is able t cnfer immigratin benefits t the client. Sample Evidence: Birth certificates, certificates f citizenship, marriage certificates, and phtgraphs f client with family. Emplyment Histry: If a client is currently emplyed, it tends t shw that she has a strng reasn t remain in the area. The length and stability f the jb is als imprtant. Sample Evidence: Pay stubs r letters frm emplyers shwing dates, jb title and jb descriptin. An ffer f emplyment r emplyer reference might als be helpful where a lng histry is nt pssible. Histry f Failure t Cmply with Curt Hearings r Immigratin Law: The immigratin judge may als take int cnsideratin a histry f nn-cmpliance with immigratin laws r a histry f failure t appear fr ther curt hearings. These are facts that yu shuld screen fr; if they exist, there is a gd chance that the gvernment will bring them up at the hearing. As with crimes, yu shuld knw all bad facts prir t the hearing and be prepared t prvide an explanatin and mitigate the cnsequences. Sample Evidence: Submit prf f times when yur client has cmplied with curtmandated prgrams (e.g. mandated DUI r dmestic vilence classes); testimny r evidence indicating that yur client appeared fr all prir hearings in criminal curt, r immigratin matters. 30 Matter f Guerra, 24 I&N Dec. 37 (BIA 2006). 31 Matter f Ellis, 20 I&N Dec. 641 (BIA 1993) (uphlding denial f bnd where respndent had n relief available and is, therefre, a flight risk, and has a serius criminal histry rendering him a threat). 9 September 2017

10 Criminal Histry: This is very imprtant t assessing the first factr, danger t the cmmunity. Manner f Entry: If yur client entered unlawfully, the judge may see this as a negative factr in terms f the prpensity t fllw rules. Here, emphasize examples f the client as a respnsible individual and cmpliance with laws in ther areas f their life. Sample Evidence: Submit prf f cmpliance with laws in ther areas f life such as having filed taxes, cmpliance with curt-mandated prgrams, etc. Other Cmmunity Ties: Any ther evidence yu can present t shw that a client has strng ties t the cmmunity and is therefre likely t remain fr her future hearings is helpful. Sample Evidence: Submit evidence f church membership r attendance, enrllment in classes, membership in rganizatins r sprts clubs, and invlvement in children s schl activities. Evidence can include certificates f enrllment r cmpletin, letters frm individuals wh can attest t yur client s invlvement, etc. This is an pprtunity t be creative and get t knw yur client. Eligibility fr Immigratin Relief: An imprtant cnsideratin is whether a client is eligible fr immigratin relief in rder t remain in United States. Fr example, if the persn sn will immigrate thrugh a family member r is eligible t apply fr relief frm remval, he r she has mre invested in cming t curt and is less likely t abscnd. Additinally, the likelihd f success n the merits will be weighed. This means that if there is relief, but the likelihd f winning the case is extremely weak, this factr may carry less weight. Letters f Supprt. Letters f supprt frm family members, friends, emplyers, landlrds, teachers, churches, etc. can be helpful t demnstrate many f the factrs abve. Belw are sme tips fr submitting letters f supprt. Make sure that these letters identify the persn, if relevant that they are a U.S. citizen (r have ther lawful status), hw lng they have knwn the client, and in what capacity. Attach prf f citizenship r immigratin status if available. Urge peple t include details and examples. Fr example, my neighbr has gd character, is nt as strng as my neighbr has gd character as evidenced by when they brught me dinner every day fr a mnth while I was recvering frm surgery. Letters will carry mre weight if they are ntarized, and/r the persn is available in curt t testify. c. Presenting in curt Nw that we ve discussed the legal factrs we need t prve, this sectin discusses the practical cnsideratins f putting all f this evidence tgether and presenting it t the judge. i. Be aware f relevant prcedures and practices. Cnsult the Immigratin Curt Practice Manual fr general prcedures t fllw. 32 Als, ask lcal practitiners abut practices and prcedures in the particular immigratin curt where yur client s bnd hearing will take place. If yu have time, g bserve smene else s bnd hearing in frnt f the judge wh will hear yur case. Fr example, certain judges will have certain quirks abut certain issues. Als, certain curts take testimny whereas thers prefer t have infrmal cnferences with cunsel. Sme judges recrd their hearings whereas thers d nt. Many curts require submissin f a Bnd Request Wrksheet r Custdy Redeterminatin Questinnaire. This is a simple frm that asks fr infrmatin t establish cmmunity ties, and ther relevant factrs like criminal histry and emplyment. In sme jurisdictins, these wrksheets are used t set bnd withut taking extensive testimny. Fr example, in Arizna the curt will set bnd based n evidence 32 Available at 10 September 2017

11 in the wrksheet and any ther evidence submitted. The curt will allw a prfer f the evidence, but n testimny is taken. Generally, filing legal briefs is nt cmmn practice. Curts result t briefing the legal issues in cases where there is a questin f bnd eligibility, i.e. whether mandatry detentin applies. See Part 2: Advanced Bnd Issues. ii. Submitting dcumentary evidence. Once yu ve cllected evidence in yur client s case, there are sme guidelines t fllw regarding its submissin. Bnd evidence shuld be submitted in a packet, with a curt captin r cver page indicating the dcuments are fr bnd prceedings. The curt will expect an index, chrnicling the evidence that yu are submitting, especially with large packets f infrmatin. Since bnd hearings are separate prceedings frm the remval prceedings, any evidence in the remval case will have t be resubmitted in the bnd case if yu want it cnsidered, and vice versa. Even in cases where the same judge will hear bth the primary case in remval prceedings and the bnd request, the recrds f evidence are separate. Obtain a letter attesting that smene can prvide rm and bard at a fixed address fr yur client upn his r her release. Ideally this persn shuld have status. See Letters f Supprt abve fr basic guidance n letter submissin. Sme practitiners submit an Affidavit f Supprt, n Frm I-134 frm a spnsr t further establish the persn is nt a flight risk. Finally, remember t check the immigratin curt practice manual befre any and all filings with the curt. iii. Testimny. Sme immigratin curts take ral testimny during bnd hearings. Others dn t take testimny and instead allw fr an ffer f prf. If yu are in a curt which takes testimny during bnd hearings, the general advice is t be the first t bring up bad facts including arrest r cnvictins, particularly if they are charged n the Ntice t Appear. If a cnvictin is ging t be brught up regardless by the prsecutin, it is better fr the nncitizen t bring it up first and have the first pprtunity t describe what happened and include any mitigating facts. Neither the curt nr the prsecutin likes the appearance that the nncitizen is hiding the ball. If yur client has cnvictins, it is imprtant fr him r her t be able t talk abut remrse and rehabilitatin. It is als imprtant fr yur client t cme acrss as credible. Example: Sara has a theft cnvictin and a hard time remembering details due t past alchl abuse. Sara is the first t admit that she has a drinking prblem and presents evidence that she has rehabilitated and cntinues t attend Alchlics Annymus classes. Sara als prvides letters f supprt shwing that she has a strng cmmunity supprt system which keeps her accuntable. Sara is granted bnd. PRACTICE POINT: If yur client has family members, emplyers, r thers wh are willing t attend the bnd hearing, their presence can be persuasive. If yur client s hearing is at a curt that takes testimny, ask family members, emplyers, r ther supprters t testify n yur client s behalf. iv. Bnd hearings are separate frm individual hearings. Bnd prceedings are distinct and separate frm the merits case. 33 Therefre, dcuments and testimny taken in the bnd hearing are nt autmatically included in the individual hearing. This evidence must be resubmitted at the merits hearing if it is t be cnsidered at that time. Hwever, testimny in a bnd hearing can be used t impeach the client during the merits hearing, s testimny preparatin is imprtant. Please nte that the inverse is als true any dcuments already part f the recrd in remval prceedings will nt transfer autmatically int the bnd prceedings. This is nt frequently a cncern since mst immigrants start with a bnd hearing, but in sme cases individuals are already in remval prceedings when they are taken 33 8 CFR (d). 11 September 2017

12 int custdy. In such cases, any dcuments that shuld be cnsidered with a bnd request will need t be submitted in bnd prceedings. v. Use relaxed evidentiary rules t yur client s advantage. The Federal Rules f Evidence (FRE) are used but they are nt binding in immigratin curt. Therefre, prceed with submitting helpful evidence even if yu believe such a submissin des nt cmprt with the FRE. Fr example, submit letters f supprt even if yu are nt able t authenticate them. Hwever, d fllw the FRE as much as yu can as the judge will prvide yur evidence mre weight. Just like yu are nt cnstrained by the FRE, neither is the ICE attrney. Dcuments utside the recrd f cnvictin, and dcuments against yur client that rely n hearsay, will likely be allwed int the recrd. Nnetheless, it is still imprtant t bject t evidence that des nt cmply with the FRE. Always bject t the submissin by the gvernment f a plice reprt (e.g., it is based n hearsay, the prejudicial impact utweighs the prbative value) and ther dcuments utside a frmal recrd f cnvictin. Step 4: Pay bnd The fllwing are sme practical tips n psting (paying) the bnd s that a persn can get ut f ICE custdy. Wh Can Pay the Bnd? Any persn (a relative, friend, the legal wrker) with lawful status can pst the bnd. If ICE discvers that the persn psting the bnd, called the bligr, is nt here legally, it can put him r her in remval prceedings. Example: Clem Clean, wh resides in the U.S. withut legal status, ges t the ICE ffice t pst the bnd fr his friend, Tm Truble. ICE discvers that Clem is here illegally, and arrests him, initiating remval prceedings. Where Can the Obligr Pst the Bnd? The bligr can pst the bnd at ANY ICE Enfrcement and Remval branch ffice. Example: Manny s brther has the $1,500 bnd t pst. Manny is detained in Texas. His brther can pst the bnd with the remval branch f the San Francisc ICE Enfrcement and Remval ffice. He des nt have t g t Texas and shuld nt send the mney t Texas. Hw Des the Obligr Make the Payment t Pst the Bnd? The bligr can either pst a bank s cashier s check r U.S. pstal mney rder. The bligr cannt pst a mney rder frm any ther business, such as Western Unin it must be frm the pst ffice. What Happens if the Persn Released n Bnd Fails t Shw up fr a Curt Hearing r an Immigratin Appintment? If this ccurs, it is pssible that the bligr will lse the bnd. (This is called a breach f the bnd.) Benefits f Psting Bnd. If yur client is successfully released n bnd, much changes in terms f case strategy. First, the case slws dwn tremendusly, and the case is mved t the nn-detained dcket. (In sme cases, yu will need t file a mtin t change venue in rder t ensure that the case is next scheduled in the curt near where yur client lives.) Additinally, yu will nw have an pprtunity t build a case with yur client and family members utside the time and lcatin cnstraints f detentin. It is nw pssible t have family meetings. Yur client can seek evidence t supprt her case, and the client can start t build psitive equities by btaining emplyment, rehabilitatin, etc. Thus, even the passage f time can help strengthen yur client s case; it might lead t new avenues f relief. Additinally, because the place f detentin might be far frm the persn s residence, witnesses and persns t supprt yur client s effrts t seek relief can be difficult t secure while a client is in detentin. In the nn-detained setting, yur client will have mre time t prepare and is mre likely t have lved nes t stand in supprt when it cmes time t present a case fr relief frm remval befre the curt. 12 September 2017

13 Extra Practice Tips: Representing Detained Clients Detentin centers Once yu lcate yur client, familiarize yurself with the plicies and prcedures f the facility where he r she is lcated (e.g., client s phne access, full cntact visits v. partitin, legal visitatin hurs). Cntact the detentin facility fr this infrmatin. Remember that cases n the detained dcket will be expedited. Detained cases are smetimes reslved within a matter f mnths, s it is imprtant t wrk quickly and efficiently. Keep a checklist f dcuments that yu need t request early in every case, e.g.: Maximize client visits by: Criminal dcuments FOIAs Medical recrds Emplyment recrds, tax recrds, educatin recrds, etc. Preparing a checklist f dcuments yu need signed and infrmatin that yu need frm yur client prir t visiting (e.g., intake sheet with vital infrmatin and cntact infrmatin fr family and friends wh can prvide additinal assistance) Giving yur client case-relevant hmewrk (e.g., tell them t list ut emplyment histry, leads n cllecting evidence, etc.). Keep a cuple f client-signed Frm G-28s n file s yu can prvide them t varius ffices/fficers yu may interact with. If yur detained client is indigent, request a fee waiver fr curt filing fees by cmpleting and submitting Frm EOIR-26A. The frm needs t be signed by the client, s plan ahead fr the signature. Remain friendly with detentin facility staff, wh may be helpful when yu need a favr such as getting frms faxed and signed. Prtect attrney-client privilege by insisting that client meetings are in a private area where cnversatins are nt mnitred and labeling all legal mail attrney-client privileged. Be mindful f the physical and mental health effects f cnfinement n yur client s ability t munt an effective legal case (e.g., ability t recall imprtant facts and t testify cmpetently at a hearing). Prvide yur client with realistic expectatins abut cnfinement (e.g., length). Never prmise that yur client will be released r will win his r her case. Warn yur client abut unexpected delays (e.g., cramped dcket). Curtrm Argue that yur client s bnd amunt shuld be prprtinal t yur client s incme. Watch Hernandez v. Sessins, 34 a case pending in the Central District f Califrnia that seeks t require the gvernment t cnsider an immigrant s financial situatin and resurces when setting bnd fr individuals facing deprtatin r seeking asylum. Be a zealus advcate during curt prceedings; be litigius and fight fr yur client! Fr example, never take fr granted that ICE has crrectly determined that yur client is subject t mandatry detentin. It is a very cmplex legal determinatin, and ICE agents are nt lawyers. D yur wn research t assess whether r nt certain ffenses trigger mandatry detentin. 34 See 13 September 2017

14 Vide telecnferencing ( VTC ) technlgy is nw being used in many Immigratin Curts t cnduct sme bnd hearings fr detained immigrants remtely. This pses special representatin challenges that yu shuld be mindful f, including but nt limited t the fllwing: Access t clients can be cnstrained. Yu must chse whether t remain with yur client in detentin during the bnd hearing r appear in curt with the immigratin judge and trial attrney while yur client remains in detentin. Fr instance, think abut what is wisest t d in each case depending n client cmmunicatin needs, the judge in whse curt yu are appearing, and lcal practice with trial attrneys. Whatever yu decide, prepare the client in advance as well as any family members r ther witnesses abut VTC prcedures s they knw what t expect. Yur client may have truble hearing the audi f his r her bnd prceedings, as well as the interpreter if he r she is using ne, since the interpreter sits in the immigratin curt. There may be slight delays in the transmissin f audi between the curt and detentin facility. If yu will appear in immigratin curt during a VTC bnd hearing, plan ahead and btain signatures frm yur client n any dcuments that yu will need t submit in curt. There will likely be fax machines in the curtrm and detentin facility that yu r thers (the judge r trial attrney) can use t share key case dcuments with yur client during the bnd hearing. Hwever, yu prbably will nt be able t use the fax machine t btain the client s signature n an E-28, fr instance. Keep a recrd! If the VTC prcess is interfering with the fairness f the prceeding make sure yu nte it ut lud n the recrd. Indicate instances in which the client culd nt actually hear questins r translatins and ther relevant parts f the prceeding; indicate instances in which the client culd nt see imprtant gestures r expressins; indicate instances in which it is unclear wh in the curtrm is talking. Additinally, if the curt cannt see and hear the client it is difficult t cnsider the prceeding as full and fair. 14 September 2017

15 PART 2: ADVANCED BOND ISSUES This sectin describes cmplex legal issues that can arise in the bnd hearing cntext, including when mandatry detentin might apply t yur client, yur ptins fr challenging mandatry r prlnged detentin, and ICE transfers f detainees. 1. Mandatry Detentin Rules The rules gverning mandatry detentin went int effect n Octber 9, Under these rules, the fllwing individuals are nt entitled t a bnd and must remain in detentin while remval prceedings are pending against them. Arriving aliens in remval prceedings. Applicants fr admissin wh are cming r attempting t cme int the United States at a pint f entry 36 and wh are determined t be inadmissible under INA 212(a)(6)(C) r 212(a)(7) will be subject t expedited remval frm the cuntry unless they indicate an intentin t apply fr asylum r a fear f persecutin. 37 In the latter case, they will be detained pending a final determinatin f credible fear f persecutin and, if fund nt t have such a fear, until remved. 38 This includes returning LPRs wh are seeking admissin. 39 Individuals within the United States when placed in remval prceedings wh are subject t certain crimes grunds f deprtability r inadmissibility. 40 Imprtantly, all fur 41 f the belw criteria must be met fr such a persn t be subject t mandatry detentin. 1. Persns wh are inadmissible r deprtable because f ne r mre f reasns (a) thrugh (d). a) Persns wh are inadmissible fr having cmmitted an ffense in INA 212(a)(2) [crimes invlving mral turpitude and drug ffenses]; i. Petty ffense exceptin: If the individual has nly ne crime invlving mral turpitude (CIMT), he r she may qualify fr the petty ffense exceptin and therefre nt be subject t mandatry detentin. T qualify, 1) the individual must have nly ne CIMT, 2) the individual must nt have been sentenced t a term f imprisnment in excess f six mnths, and 3) the ffense f cnvictin carried a maximum pssible sentence f ne year r less. 42 b) Persns wh are deprtable fr having cmmitted any ffense in INA 237(a)(2)(A)(ii) [multiple criminal cnvictins], 237(a)(2)(A)(iii) [aggravated felny], 237(a)(2)(B) 35 See INA 236(c)(1) CFR (h)(2)(i)(B). 37 INA 208(a)(1), 235(b)(1)(A)(i). Fr a helpful practice advisry n expedited remval in the era f President Trump, see ry-_updated_ pdf. 38 INA 235(b)(1)(B)(iii)(IV). 39 See INA 101(a)(13)(C) and In Re Oseiwusu, 22 I&N Dec. 19 (BIA 1998). 40 See INA 236(c)(1)(A)-(D). Keep in mind that this sectin prvides a primer n these crimes grunds but is nt intended t prvide an in-depth r exhaustive explanatin. See the ILRC s Inadmissibility & Deprtability (4th Ed., 2016) fr mre infrmatin n these issues: See als 41 But see discussin at pint number three, regarding the when released prvisin, which varies frm jurisdictin t jurisdictin. 42 See INA 212(a)(2)(A) (II), 8 USC 1182(a)(2)(A) (II). 15 September 2017

16 [drug ffense], 237(a)(2)(C) [firearms ffenses], r 237(a)(2)(D) [crimes related t espinage]; i. Drug ffense exceptin: Watch ut fr a pssessin f marijuana that is 30 grams r less. Yur client will nt be subject t mandatry detentin and will nt be deprtable! c) Persns wh are deprtable under INA 237(a)(2)(A)(i) [has been cnvicted f a crime invlving mral turpitude that was cmmitted within five years f admissin] and has been sentenced t a term f imprisnment f at least ne year; and d) Persns wh are inadmissible under INA 212(a)(3)(B) r deprtable under INA 237(a)(4)(B) [invlved in terrrist activities]. WARNING: If yur client is suspected f terrrist activity, ther prvisins apply. 43 Please cnsult an expert fr assistance. Tw Remvability Framewrks and an Advcacy Opprtunity: Inadmissibility 44 : If yur client is seeking entry r admissin t the United States, he r she may be charged with grunds f inadmissibility. Generally, a persn present in the United States that entered withut inspectin is cnsidered t be seeking admissin. Yur client bears the burden t prve that he r she is admissible. Deprtability 45 : If yur client has been lawfully admitted t the United States (LPR, Visa, etc.), he r she may be charged with grunds f deprtability. The gvernment has the burden f establishing by clear, cnvincing, and unequivcal evidence that yur client is deprtable. 46 PRACTICE POINT: It is critical t establish which remvability framewrk yu are wrking within when assessing a client s mandatry detentin determinatin. The imprtance f this distinctin becmes clear thrugh the fllwing examples. Example 1: Client Lucy, an LPR, has been mandatrily detained. On the Frm I-286, ICE cites a theft ffense charge (here, a CIMT) as the reasn fr which Lucy is remvable and must be detained pending her remval prceeding, under INA 237(a)(2)(A)(i). Questin: Shuld Lucy be mandatrily detained fr the theft charge? Answer: N! INA 237(a)(2)(A)(i) refers t a cnvictin f a crime invlving mral turpitude, whereas Lucy has merely been charged with theft. Imprtantly, as an LPR, Lucy is subject t the deprtability grunds f remvability, nt the grunds f inadmissibility. Further, LPR Lucy is als nt deprtable based n this charge! What if Lucy als had a DUI cnvictin? PRACTICE TIP: A Driving Under the Influence (DUI) cnvictin cannt trigger mandatry detentin because a DUI des nt fit int any f the listed crime-based grunds f inadmissibility r deprtability. If ICE makes the decisin t detain yur client based n a DUI, withut any ther type f cnvictins, they are eligible fr a bnd hearing. 43 See INA 236A. 44 See INA 212(a). 45 See INA 237(a). 46 See Wdby v. INS, 385 U.S. 276 (1966). 16 September 2017

17 Example 2: Client Peter, an undcumented immigrant, has been mandatrily detained. On the Frm I-286, ICE cites Peter s firearms pssessin charge as the reasn fr which Peter is remvable and must be detained pending his remval prceeding, under INA 237(a)(2)(C). Questin: Shuld Peter be mandatrily detained fr the firearms charge? Answer: N! Peter has nt been admitted t the United States and is therefre nt subject t the grunds f deprtability. He is charged under the grunds f inadmissibility. He is thus nt subject t mandatry detentin based n being deprtable fr a firearm ffense. Firearms pssessin is nt a grund f inadmissibility, s Peter is nt subject t mandatry detentin. Nte, always research the cnsequences fr a given criminal ffense in yur jurisdictin. A single criminal ffense can trigger different immigratin grunds, and cnsequences can vary frm jurisdictin t jurisdictin. Thse wh are new t remval defense and are unfamiliar with the grunds f deprtability and/r inadmissibility, shuld take the time t learn these cncepts, as they can be nuanced. Fr a mre in-depth discussin, see ILRC publicatin Inadmissibility & Deprtability, 4th Editin (2016). 2. Because the mandatry detentin rules went int effect n Octber 9, 1998, the release must be frm criminal custdy after Octber 9, In ther wrds, fr clients with criminal cnvictins, the mandatry detentin rules apply nly t persns wh cmpleted their criminal sentences after Octber 9, ICE must take the persn int custdy when he r she is released frm criminal custdy. 47 The applicatin f the when released language has been a pint f dispute and varies frm jurisdictin t jurisdictin. The Gvernment has argued that in rder t subject smene t mandatry detentin, ICE des nt have t take the persn int custdy immediately upn release frm criminal custdy. Rather, ICE argues that mandatry detentin applies even if it picks the persn up days, mnths, r years after release. The BIA agreed with this reasning in Matter f Rjas, 23 I&N Dec. 117 (BIA 2001), and many ther curts have agreed. Hwever, a grwing number curts have als held that when released requires ICE t detain the persn immediately at the time f their release frm criminal custdy. What Is Release? Can days, mnths, r even years lapse between release frm criminal custdy and ICE custdy fr mandatry detentin t be valid, as lng as the release was pst-octber 9, 1998? Yes (bad fr ur clients) Matter f Rjas, 23 I&N Dec. 117 (BIA 2001) Lra v. Shanahan, 804 F.3d 601 (2d Cir. 2015) Sylvain v. Attrney General, 714 F.3d 150 (3d Cir. 2013) Hsh v. Lucer, 680 F.3d 375 (4th Cir. 2012) Olms v. Hlder, 780 F. 3d 1313 (10th Cir. 2015) Khentani v. Petty, 859 F.Supp.2d 1036 (W.D. M. 2012) Serran v. Estrada, 2002 WL (N.D.Tex. Mar. 6, 2002) See Deacn v. Shanahan, 2016 WL (N.D. Ala. Apr. 1, 2016) Hernandez v. Prindle, N ART, 2015 WL (E.D. Ky. Apr. 13, 2015) N (gd fr ur clients) 48 Preap v. Jhnsn, 831 F.3d 1193 (9th Cir. 2016) (CA State) Khury v. Asher, 2016 WL (9th Cir. Aug. 4, 2016) (WA State) 47 INA 236(c) states that the Attrney General shall take int custdy any alien wh cmes within these grunds when the alien is released. 48 Advcates shuld read these cases and therwise research t assess whether ICE is required t detain clients immediately upn release frm criminal custdy, r whether curts have allwed fr sme reasnable time perid. 17 September 2017