Can I Post A Bail Bond With An Immigration Hold?

I personally don't recall hearing so much about immigration law and reform as I have in the past several years. In recent news, the House Judiciary Committee in Colorado just passed Bill 1088. The bill will require the arresting law enforcement agency to notify the district attorney's office and pretrial services if they have probable cause to believe an arrestee is an illegal immigrant.

The commercial bail industry is feeling the effect of the immigration laws. Arrestees with immigration holds can't simply use a bail bond service for their immediate release. Posting a bail bond for the local state case doesn't release them from custody due to the hold, but rather releases them to the custody of the federal government.

A common question asked in our office is, "Can I post a bail bond with an immigration hold?" The answer is yes, but a two part strategy is usually implemented to have the arrestee released from federal custody. Upon posting the bail bond for the local state case, the arrestee will be transferred to federal custody within a day or so. Once in federal custody, the arrestee will be interviewed by an immigration official and a bail recommendation will be made. So, bail or an immigration bond can now be posted and the arrestee released. However, keep in mind that many criminal offenses are not bailable at the federal level, thus keeping the arrestee from being released.

A bail bond company should use caution when dealing with immigration holds. Family and friends of the accused wanting to proceed with the two step process need to understand the drawbacks of not obtaining bail or an immigration bond by the federal government. It's best to consult with an attorney who practices these areas of the law for details. 

   

When Is The Balance Due On The Bail Bond?

When is the balance due on the bail bond? Many clients still ask this question even after we have explained the bail bond process and their obligation to the bond. The penal (total) amount of bail posted through a surety bail bond is never paid by the co-signer ( Indemnitor) unless the defendant fails to meet the conditions of their bail. For example, the defendant's failure to appear in court and comply with court orders can result in the co-signers loss of the total amount of bail. However, if the defendant complies with their conditions of bail, the only out of pocket expense should be the premium paid for the bail bond. The premium is a percentage (10%) of the bail bond amount and is regulated by the state's Department of Insurance.

Another public misconception is that the total amount of bail is reduced by the premium paid. The surety bail bond is issued in the total amount of bail and the premium amount paid has no effect on the bail amount. A $10,000.00 bail bond remains a $10,000.00 bail bond regardless if you paid $1,500.00, $1,000.00, or $800.00 for the premium. 

Furthermore, the bail bond premium is FULLY earned upon the defendant's release from custody. The surety bail bond agreement expressly discloses that the bail bond company is not obligated to return any portion of the bail premium due to the defendant having been improperly arrested, bail reduced, or case dismissed. Unfortunately, many people are misinformed by court clerks and other entities regarding bail bond premiums. Thus, it's best to check your bail bond agreement and contact the bail bond company who provided the service.      

Bail Bonds | Affidavit of Reassumption Of Liability

The Affidavit of Reassumption of Liability is also known as the Consent to Reinstate Bail Bond and Order. This one page document is required to reinstate a forfeited bail bond. In other words, the defendant failed to appear in court for a scheduled appearance and the bail bond company is once again willing to assume the liability of the bail bond amount. California Penal Code section 1305(C)(4) gives more details.

In general, the court will accept  the Reassumption of Liability by the bail bond company, vacate the forfeiture, and reinstate the bail bond. However, the court may use its discretion and deny the reinstatement. The court may also require the defendant to show "good cause" for failing to appear before accepting the Reassumption of Liability. The judges are displeased when a defendant has no viable excuse for not appearing in court, showing a total disregard for the court and their case. A defendant's record of appearance may also be an indicator of what the judge is willing to do. If they have not failed to appear in the past, the judge is more inclined to reinstate the bail bond, but if they have failed to appear in the past, well, the defendant will be fighting an uphill battle. 

Consumers also need to be aware of the bail bond company's policy regarding the reinstatement of a forfeited bail bond. The bail bond company is not required to provide the Affidavit of Reassumption of Liability. Many bail bond companies have fees associated with providing the reinstatement and order to the court. Once issued, there is also a specified period of time (10 days) in which the Affidavit of Reassumption of Liability must be provided to the court by the defendant.

 

Bail Bond Forfeiture | California Penal Code 1305(A)

What happens when a defendant fails to appear in court while out of custody on a bail bond? The court (judge) is required to forfeit the bail bond in "open" court as provided in California Penal Code section 1305(A). This usually results in a bench warrant issued for the defendant with a possible higher bail amount.

The defendant in a felony case is required to appear at all times as a condition of their bail. In certain circumstances, the court may allow a retained criminal defense attorney to appear in court on behalf of the defendant. The court may even hold a bench warrant for a defendant based on the information provided by their criminal lawyer, but a sufficient excuse for failure to appear must be acceptable by the court.

In California, the grace period of a bail bond forfeiture is 185 days, which includes a 5 day period for the mailing of the "Notice of Forfeiture" by the court to the bail bond company and/or surety insurer. The grace period allows for the voluntary or involuntary appearance of  the defendant in court. The defendant may have been hospitalized, which kept them from appearing in court, a justifiable reason for their failure to appear. It may be necessary to locate, apprehend, and surrender the defendant for absconding. In the case of a temporary disability, the court shall toll the 180 day period based on the illness, insanity, or detention by military or civil authorities. Regardless of the circumstances, upon appearance of the defendant, the court shall vacate the forfeiture and re-instate or exonerate the bail bond.

In addition, the bail bond company may file a motion with the court to extend the 185 day period. If "good cause" is shown, the courts in California will usually extend the grace period for another 6 months. However, the amount of additional time is up to the discretion of the judge.

If the defendant ultimately fails to appear within the prescribed time, the bail bond company and surety insurer will be required to pay the penal amount of the bail bond. Once the grace period has expired, the county in which the bail bond was posted will enter a summary judgement against the bail bond company and their surety insurer. At this point, the penal amount of the bail bond must be paid to the county within 30 days of receiving the summary judgement. All efforts in apprehending and surrendering the defendant should cease upon receiving the summary judgement, payment is required .