Immigration Detention Defense

Overview

When a noncitizen ends up in the custody of the U.S. Immigration and Customs Enforcement (ICE) — a sub-department at the U.S. Department of Homeland Security (DHS), charged with the primary responsibility of enforcing U.S. immigration laws, he or she is normally housed (detained) at one of the ICE facilities. ICE maintains such facilities throughout the country and in two distinct ways. Some of the facilities are stand-alone jail-like dormitories maintained by private companies acting on a contract with ICE. Others are sections of local country jails with which ICE contracts to station immigration detainees. List of ICE Detention Facilities [see category].

Immigration and Nationality Act (INA) is that main law that governs immigration issues in the USA including detention in and release from ICE custody. Not all noncitizens are eligible to be released from ICE custody, once detained. The decision of whether to release rests with ICE in all cases, except those where such release is prohibited by law. In those situations when such release is allowed and the noncitizen is unhappy with the initial determination made by ICE as to whether to be released on bond, the noncitizen may request that an immigration judge review ICE decision and re-determine his or her custody status. INA § 236 governs release on bond from ICE detention. This process is also known as custody redetermination hearings before an Immigration Judge. 8 C.F.R. §§ 1003.19 and 1236.1 contain federal regulations that implement the INA §236.

Arrest detention and release

Congress gave the authority to the Secretary of the DHS to issue a warrant for arrest of a noncitizen on charges of an immigration violation (INA 236(a)). On such warrant, a noncitizen can be arrested and detained “pending a decision” on whether he or she should be removed from the USA. During the pendency of the decision DHS may continue detaining the noncitizen, release him or her from custody on parole or supervised release with or without bond. If DHS makes a decision to release the noncitizen with a security amount of bond, the bond amount cannot be less than $1,500 (INA 236(a)(A)), and DHS cannot issue any form of employment authorization to such noncitizen unless the noncitizen is a Legal Permanent Resident (LPR) or an individual otherwise authorized to be employed regardless of the removal proceedings (INA 236(a)(3)). Congress also authorized DHS to revoke the bond or parole at any time, rearrest and detain the noncitizen (INA §236(a)(3)).

8 C.F.R. § 1003.19 mandates the bond hearing to not be part of removal proceedings, thus making it a stand-along process of its own. The regulation provides immigration courts with the authority to redetermine custody status of most non citizens as well as the bond amount, if any, originally set by the DHS or set new conditions of the to the release. Such authority lies with the immigration court of competent jurisdiction (the court that had jurisdiction of the place of detention or assigned by the office of Chief Immigration Judge (OCIJ)) regardless of whether the charging document was filed with the court. (Matter of Sanchez, 20 I&N Dec. 223, 225 (BIA 1990); 8 C.F.R. § 1003.13).

Time

It is the DHS that is charged with the authority under the law to make the initial custody determination, at which point the immigration court may redetermine such DHS decision at any time before the final order of deportation or removal is issued by the court. This decision may be appealed to the Board of Immigration Appeals (BIA). 8 C.F.R. §§ 1236.1, 1003.19 (2006); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

Subsequent bond hearing

In general, there may only be one bond redetermination rendered by the immigration court. However, upon the appropriate request by the noncitizen, the immigration judge may entertain a subsequent custody hearing provided such request is made in writing and based on a showing that the alien's circumstances have changed materially since the initial bond redetermination hearing. 8 C.F.R. § 1003.19(e) (2006); Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989).

Appealing bond redetermination decision of the court

When immigration court decision on bond redetermination is appealed to the BIA, the Court, in appropriate circumstances, may nevertheless entertain a subsequent bond redetermination request and enter a new decision if the noncitizen's circumstances had materially changed. Matter of Valles, 21 I&N Dec. 769 (BIA 1997). In such a case, the new decision, if entered in favor of the noncitizen, would render moot the appeal. In such a case the DHS must notify the BIA in writing, with proof of service on the opposing party, within 30 days, if the Department would like to continue pursuing its original bond appeal.

When I.J. Has jurisdiction to redetermine bond status

While immigration court does have jurisdiction under INA §236(a) to reconsider DHS's decision regarding release from custody of a noncitizen whose release is not otherwise precluded by law; the statute as well as its implementing regulations do not confer upon the noncitizen the right to be released on bond, nor does Court's denial to order noncitizen's release on bond during pendency of the removal proceedings violates international law (In re D-J-, 23 I&N Dec. 572 (A.G. 2003)). Pursuant to the regulations implementing INA §236(a), Immigration Court cannot order release of a noncitizen on his or her own recognizance. Such authority lies only with the DHS.

Release on bond

Under BIA case law addressing general bond provisions of prior law, an alien ordinarily would not be detained unless he or she presented a (1) threat to national security or (2) risk of flight or (3) both. See Matter of Patel, 15 I&N Dec. 666 (BIA 1976). The regulations (8 C.F.R. § 1236.1(c)(8)) further holds that a criminal alien must demonstrate that s/he (3) is not a threat to the national security; (2) hers or his release would not pose a danger to property or persons, and (3) s/he is likely to appear for any future proceedings. (In re Guerra, 24 I&N Dec. 37 (BIA 2006) and In re Adeniji, 22 I&N Dec. 1102 (BIA 1999); but see In re D-J-, 23 I&N Dec. 572 (A.G. 2003)).

Juveniles (i.e., under 18).

Under the U.S. Immigration System, release from ICE custody of the individuals under the age of 18 is governed by special conditions of release. (8 C.F.R. § 1236.3 (2006)). According to the regulation, juveniles, in addition to having monetary bond, will have conditions of release in that they can only be released, in order of preference, to :

1. a parent;
2. legal guardian;
3. adult relative.

The regulation gives no authority to the Immigration Judge to fashion independent conditions of release and thus substantially limit immigration judge's discretion. (In Re Mejia-Andino, 23 I&N Dec. 533 (BIA 2002); Matter of Amaya, 21 I&N Dec. 583 (BIA 1996)).