�How do I detain thee? Let me count the ways.� ¹ The federal government has a myriad of reasons it detains aliens. Aliens seeking release from detention first look to the immigration court and bond proceedings as a way out of detention. However, the ability to seek release from detention through bond proceedings is not always open to aliens. This practice advisory will discuss classes of aliens excluded from access to bond proceedings and developments in the law that restrict access to the immigration courts as well as developments that expand access. This practice advisory also addresses a promising new policy for allowing for the release of some arriving aliens barred from access to bond proceedings and often subject to prolonged detention.

THE NORMAL BOND PROCEEDING PARADIGM

The usual detention scenario is that an alien is detained by officers of Immigration and Customs Enforcement and placed in removal proceedings.² After ICE arrests an alien present in the United States after an admission or after entering without inspection, ICE makes an initial custody determination.³ An alien may also request a custody (or bond) hearing before an IJ to either contest ICE�s bond determination and seek a lower bond amount or to request that bond be set.⁴ If ICE determines that an alien is subject to mandatory detention, that determination may also be contested before an IJ at a bond hearing.⁵

Also, part of the normal paradigm is a class of aliens placed in removal proceedings who do not have access to an IJ and a bond proceeding: aliens detained at a port of entry, considered arriving aliens,⁶ as IJ�s do not have jurisdiction to consider custody issues for arriving aliens. With the passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA) in 1996, Congress created expedited removal provisions for arriving aliens.⁷ These provisions allow the Department of Homeland Security to order the immediate removal of non-permanent residents arriving at a port of entry by border officials without further hearing or review.⁸ Non-permanent resident aliens can be given a final order of removal by an immigration officer (usually a Customs and Border Patrol officer) if the officer determines that they are inadmissible to the United States because they possess false documents or present no documents.⁹ An alien who is subject to expedited removal �shall be detained� pending the determination of his or her removal, and is a mandatory detainee without the option of bond or a bond hearing.¹⁰

Finally, there is a class of aliens, whether arriving aliens without access to an IJ or arrested in the United States and with access, who ordinarily cannot be released�those subject to mandatory detention¹¹ based on convictions or conduct that Congress determined makes them ineligible for release from detention while in removal proceedings.

The normal paradigm assumes a fairly expeditious process where an alien is arrested and charged with removability with the issuance of a Notice to Appear and has a hearing before an immigration judge where he can fight the grounds of removability and seek relief from removal. At the end of the process, he is either allowed to remain in the United States or compelled to depart either under a removal order or a grant of voluntary departure. However, many aliens do not fit neatly in this paradigm. The paradigm does not include judicial review, a petition for review to a court of appeals, a process that can take months and years. Under the normal paradigm, immigration judges lack jurisdiction to hold bond hearings for aliens after the BIA has decided a case on appeal. Thus, aliens in the process of seeking judicial review do not have access to an IJ for a bond proceeding.¹²

ALIENS DETAINED BUT NOT PLACED IN REMOVAL PROCEEDINGS.

The usual paradigm is that an alien is detained and placed in removal proceedings with the issuance of a Notice to Appear.¹³ The question emerges as to what happens when an alien is detained but not issued a Notice to Appear.

Imagine the following scenario: a woman calls your office and says that ICE has taken her husband, a long-term lawful permanent resident, into custody. He has not received a Notice to Appear or a court date. You ask the typical questions about criminal convictions, past deportations, abandonment, fraud, but nothing explains the reason for his detention. You find that ICE has not issued a Notice to Appear. You seek a custody review of an IJ in bond proceedings. However, according to the Board of Immigration Appeals decision in Matter of Werner,¹⁴ without the issuance of a Notice to Appear, your client has no access to the immigration court.

Although the current application of Werner appears limited, the potential scope of its holding represents an expansion of ICE�s ability to unlawfully detain aliens and even U.S. citizens without any administrative review.

WHAT DID MATTER OF WERNER HOLD?

In Matter of Werner, the alien entered the U.S. under the Visa Waiver Program¹⁵ and overstayed his authorized 90-day period of admission. When encountered by ICE, he asserted a fear of returning to his homeland and was placed in asylum-only proceedings. He requested a custody redetermination hearing. The BIA found that under 8 CFR �1208.2(c)(3)(i), the IJ�s scope of review is �limited to a determination of whether the alien is eligible for asylum,� and that the IJ therefore lacked jurisdiction to redetermine the applicant�s custody status.¹⁶

The BIA did not limit its holding in Matter of Werner to Visa Waiver Program overstays. Rather, the decision makes a sweeping proclamation that the Attorney General has not delegated authority to IJ�s to redetermine the conditions of custody with respect to �aliens who have not been issued and served with a Notice to Appear � in relation to removal proceedings pursuant to 8 CFR Part 1240.� In other words, any individual who has been detained�lawfully or unlawfully�without being issued and served an NTA has no right to challenge his or her detention before an IJ.

WHO CAN BE DENIED A BOND HEARING UNDER MATTER OF WERNER?

Under the BIA�s reasoning in Matter of Werner, any person in the following scenarios could be denied a custody redetermination hearing:

• A noncitizen who has been detained for longer than 48 hours prior to the issuance or service of an NTA;¹⁷


• A noncitizen whose removal proceedings have been terminated where ICE has not reserved appeal but continues to detain the individual while preparing to issue a new NTA;


• A noncitizen held in a local jail pursuant to an ICE detainer after the expiration of the 48-hour period;¹⁸


• An asylee convicted of an aggravated felony where ICE is attempting to reopen and terminate asylum status;


• A refugee who has failed to acquire permanent residence one year after arrival and is being held subject to INA �209(a)(1);


• Any noncitizen who may be lawfully held without bond but whose detention becomes excessive in length (e.g., an asylum-seeker held for months while awaiting a credible fear interview);


• A noncitizen who entered under the Visa Waiver Program and applies for asylum;


• A U.S. citizen who is detained pursuant to a claim status review;¹⁹


• Any noncitizen held without bond in non-INA �240 proceedings who wishes to challenge whether he designation in those proceedings is proper.

This list is not exhaustive. Although an individual�s eligibility for bond in some of these situations may be arguable, the existence of Matter of Werner precludes these eligibility issues from being pursued before an IJ in a bond proceeding.

HOW DOES MATTER OF WERNER CONTRADICT EXISTING LAW?

Criticisms of Matter of Werner revolve around contradictions to established principles of custody review contained in the U.S. Constitution, the code of federal regulations, and existing BIA case law. The first and most obvious example is Matter of Werner�s failure to comport with traditional notions of due process. Although the government has the authority to detain immigrants, due process requires that the detention be reasonably related to its purpose.²⁰ Without an NTA, there is no formal explanation for the detention, and, as in the above hypothetical, the purpose of the detention cannot be determined and due process is subverted.

Furthermore, civil detention, particularly when it becomes prolonged, requires strong procedural protections in order to meet the requirements of due process.²¹ However, individuals who have not received an NTA may be subjected to prolonged detention and yet have fewer procedural protections under Matter of Werner by virtue of the fact that they cannot seek a bond hearing. Persons who are detained without an NTA require more�not less�oversight of government custody decisions, yet Werner denies the IJ and BIA jurisdiction over custody issues, thereby handing ICE authority to detain individuals at will without administrative review, though judicial review, habeas corpus, in particular, remains available.²² Matter of Werner also stands in puzzling contrast to the regulations, which state, �[N]o charging document is required to be filed with the Immigration Court to commence bond proceedings....�²³

The BIA offers a strained explanation for this inconsistency, stating that this regulation only applies to situations where an NTA has been issued to the noncitizen but not yet filed with the immigration court, or situations in which an ICE attorney has not yet been assigned to the case.²⁴ This narrow interpretation seems implausible given the rarity of situations in which a detained individual is issued an NTA that is not promptly filed with the court, and given that the assignment of an attorney is irrelevant to bond eligibility.²⁵

Finally, Matter of Werner contradicts one of the basic foundations of the BIA�s decision in Matter of Joseph.²⁶ While the BIA�s decision in Matter of Joseph concerned a noncitizen who had been issued an NTA, its holding drew strongly on the principle that an alien may seek a determination from an IJ as to whether the alien is properly included within certain of the regulatory provisions which would deprive the Immigration Judge of bond jurisdiction.²⁷ By contrast, Matter of Werner precludes such a challenge by blocking access to a forum where such arguments can be made. In light of Werner�s inconsistency with the regulatory scheme, established case law, and constitutional protections, its underlying legitimacy cannot help but be questioned.²⁸

JUDICIAL INTERVENTION IN CASES OF THE PROLONGED DETENTION OF ALIENS

The normal paradigm for detention is that should an alien be subjected to detention, the removal process is expeditious and thus prolonged detention does not occur. Thus there are no due process concerns because of lengthy detention. The reality is that removal proceedings often drag on and aliens are subjected to detention for months and years. Courts have intervened to establish the right for IJ custody determinations in some cases for aliens subjected to prolonged detention.

Although no court has explicitly stated how long someone must be detained before detention becomes �prolonged,� and therefore impermissible without a bond hearing, a number of cases provide guidance on this issue. The Supreme Court has held that a detention period of six months is allowable without a bond hearing. ²⁹ The Ninth Circuit Court of Appeals has also held that a period of twenty-eight months was prolonged, without establishing what period of detention at a minimum constitutes �prolonged detention.�³⁰

In Casas-Castrillon v. Department of Homeland Security,³¹ the Ninth Circuit addressed whether ICE may detain a noncitizen for a prolonged period of time pursuant to the mandatory detention statute, INA �236(c), during his or her immigration proceedings without an individualized bond hearing in which the noncitizen may contest the lawfulness of further detention. The court held that when a noncitizen files a petition for review in the court of appeals and obtains a stay of removal pending appellate review the noncitizen�s detention is governed by INA �236(a), which allows for an IJ custodial review. Even though Mr. Casas-Castrillon had initially been classified under �236(c) and would normally not be eligible for a bond hearing, he could no longer be subject to �236(c) because he had been detained for a prolonged period of time.³²

The Court held that prolonged detention is prohibited without an individualized hearing to determine whether the person is a flight risk or a danger to the community³³ and that prolonged detention without adequate procedural protections would present serious constitutional concerns, but did not reach the constitutional question. Instead, it construed �236(a) to require that a noncitizen in prolonged detention be released on bond unless the government establishes that the person is a flight risk or will be a danger to the community.³⁴

Non-citizen detainees covered by the Casas ruling may now obtain bond hearings before and IJ if their immigration cases are pending before the Ninth Circuit and they have obtained a stay of removal.³⁵ Subsequent to Casas, the Ninth Circuit clarified that its holding extends to individuals whose cases have been remanded by the Court of Appeals to the Board of Immigration Appeals for further proceedings, Owino v. Napolitano.³⁶

The Casas and Owino rulings do not extend to all prolonged detainees in the Ninth Circuit. In the related case of Diouf v. Mukasey,³⁷ the Ninth Circuit left open the question of whether noncitizens whose petitions for review were from denials of motions to reopen are entitled to bond hearings.

Under Ninth Circuit law, a bond hearing is required for the following classes of detained immigrants:

• Noncitizens, otherwise subject to �236(c), who have completed their removal proceedings, filed a petition for review in circuit court, and obtained a stay of removal pending adjudication of the petition for review.³⁸


• Detainees whose cases have been remanded from the Ninth Circuit to the Board of Immigration Appeals (or an Immigration Judge).³⁹


• Detainees who sought and lost their petition for review, and are seeking a rehearing from the panel, an en banc rehearing, or review through a writ of certiorari from the United States Supreme Court, as long as they have a stay of removal. For similar reasons, Casas-Castrillon also applies to people who have won their petitions for review but remain detained while the government seeks rehearing or certiorari.

Casas-Castrillon and Owino arguably also apply to the following types of cases:

• Noncitizens detained pursuant to 8 USC �235(b), arriving aliens who have been detained for a prolonged period but, as discussed, supra, are ineligible for an IJ bond hearing.⁴⁰ Prior to Casas-Castrillon, in Nadarajah, the Ninth Circuit held that �235 must be construed to authorize only �brief and reasonable� detention.⁴¹ Similarly, �236(c) was construed by the Ninth Circuit in Casas-Castrillon to apply only for a brief period of time. Accordingly, Casas-Castrillon�s holding also should apply to noncitizens held under �235 who have been detained for a prolonged period of time.


• Noncitizens, otherwise subject to �236(c), who have been detained for a prolonged period of time but whose immigration proceedings before an Immigration Judge or the BIA have not been completed.⁴²


• Noncitizens who have been detained for a prolonged period of time pursuant to �236(a) and who were denied bond at their initial bond hearing because they, and not the government, bore the burden of proof.⁴³

To request a hearing under Casas-Castrillon, your client should file an administrative request for a bond hearing in Immigration Court, and attach the Casas-Castrillon decision to the request. The request should be made in writing, but may also be made orally or at the Immigration Judge�s discretion, via telephone.⁴⁴

The Ninth Circuit Court of Appeals is not alone in considering the issue of prolonged immigration detention. At least one other Court of Appeals and several federal district courts have also considered the issue, finding the prolonged detention of aliens problematical.⁴⁵

Policy change resolves some prolonged detention issues of arriving alien asylum seekers.

As was discussed, the regulations bar an immigration judge from holding bond hearings for arriving aliens.⁴⁶ Also discussed was that in the Ninth Circuit, judicial decisions may allow for bond hearings in the case of arriving aliens who are subject to prolonged detention. Recent policy changes announced by ICE may lead to most arriving alien asylum seekers being released from detention which will obviate the need for bond hearings or litigation to compel the release of arriving alien asylum seekers subjected to prolonged detention. What does this mean for asylum seekers who seek protection in the United States? Many asylum seekers arrive at a port of entry⁴⁷ with no documents or whatever documents they could manage to obtain in order to flee. When this is the case, they expect that immigration officials will discover their lack of valid documents upon arrival in the United States. They are found inadmissible for lacking proper documents⁴⁸ or, depending on the nature of their documents or what they say, for attempting to enter through fraud,⁴⁹ and processed for expedited removal. If seeking asylum, these asylum-seeking aliens discover they will be jailed while a decision is being made about their fear of return. Aliens with facially valid nonimmigrant visas who express an intention to seek asylum are also subject to arrest and detention for lacking proper documents for the actual purpose of their entry into the United States or for fraudulent used of the nonimmigrant visa. The detained asylum seeker can pursue asylum in immigration court. First, he or she must prove to an Asylum Officer that he or she has a �credible fear� of persecution.50 If the applicant can pass this Credible Fear Interview (CFI), he or she will be referred to Immigration Court for a full hearing of the asylum claim.⁵¹

Unfortunately, an asylum seeker in this position will still find him or herself in jail and without the right to a bond hearing. An ICE policy announced in late 2007, made release of these asylum seekers virtually impossible.⁵² On January 4, 2010, a new policy took effect⁵³ that represents significant departure from the former policy. As ICE noted in its fact sheet announcing the new parole policy, changes were made in response to widespread complaints about the 2007 guidance, which made parole both restrictive and inaccessible for most detained asylum seekers.⁵⁴ It is likely that large numbers of habeas corpus petitions complaining of prolonged detention of arriving alien asylum seekers also played a role in ICE�s policy reversal.

Authority to grant parole for arriving aliens with a credible fear of persecution lies solely with ICE and originates from INA �212(d)(5)(A).⁵⁵ It is a discretionary authority, and while it does not constitute permission to enter the United States or come without responsibilities on the part of the asylum applicant, it does relieve him or her from the �shall be detained� requirement of INA �235(b) while his asylum case is pending. The most significant details of the new process are as follows:

• Every detained asylum seeker who passes the credible fear process will be automatically evaluated for release on parole. There is no requirement that a request be made in writing and USCIS asylum officers should explain the parole process to the applicant once it has been determined that he or she has a credible fear of persecution or torture.⁵⁶


• The Detention and Removal Office (DRO) is responsible for providing the detainee with a �Parole Advisal and Scheduling Notification� form.⁵⁷ The new policy guidance provides that an actual interview will take place, and the information on the Advisal Form instructs the detainee as to the time and date of the interview, as well as what materials he or she should prepare in advance.⁵⁸


• In order to qualify for parole, the applicant must establish his or her (1) identity;59 (2) flight risk;60 (3) danger to the community; (4) provide information regarding any additional factors that are relevant to the parole determination.⁶¹ The officer tasked with making the parole decision must complete a �Record of Parole Determination� worksheet during the parole interview and submit it to a supervisor for approval.⁶²


• Whether the parole is granted or denied, the DRO officer must provide written notice of the parole decision within seven days of the interview. If the request is granted, the applicant shall receive an I-94 stamp; if denied, applicant will be provided with short explanation as to why, and have the process for reconsideration explained as well.⁶³ Reconsideration must be requested in writing and may be done strictly based on the documentary evidence provided (i.e. no �interview� necessary).⁶⁴

Now that there has been a paradigm shift in ICE�s policy toward releasing asylum-seeking arriving aliens, practitioners should push for the release of their clients, including working with asylum-seekers and their families and associates to meet the requirements for release.

CONCLUSION

Immigration practitioners have many tools at their disposal to obtain the release of detained aliens. In the normal case, a bond hearing with an IJ will be all that is needed. In cases without a Notice to Appear, the federal courts are emerging as the venue to obtain the release of aliens subject to prolonged detention, opening the door to an expansion of those eligible for a bond hearing before an IJ. Advocacy and litigation can also help change policy such as the January 4, 2010, change in ICE policy regarding arriving-alien asylum seekers.