ARTICLES

Detention and Bond
Published in the 19th Annual AILA California Chapters Conference Handbook. (November 2006)

by Jonathan D. Montag*

INTRODUCTION

The process of representing an alien in the removal context most often commences when the alien is arrested. The arrest can occur at a port of entry or it can occur after the alien is already in the United States. For an attorney retained to try to accomplish legalizing or re-legalizing the arrested alien's presence in the United States, the first and most pressing task of the immigration attorney is dealing with the issue of whether the alien can be released on bond and, if so, effecting the release.

THE LEGAL BASIS FOR ARREST AND DETENTION

The government's authority to arrest and detain aliens is found in the Immigration and Nationality Act. There are two contexts for arrest – at the border and inside the United States.

ARREST AT THE BORDER

The statutory authority for an arrest at the border is found at INA § 235(b)(2)(A), which states:

In general. Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.

At this stage of the process, for aliens intent to eventually be allowed entry into the United States, detention is desirable to the unsavory alternative of being ordered removed by an immigration officer under the expedited removal procedures at INA § 235(b)(1). Thus, in many cases, the first hurdle to the goal of legalizing the client's status in the United States is to have the client be detained rather than expeditiously removed. The most typical examples of clients who need to be detained before they can hope to live freely in the United States are long-term residents who seek to prove they are eligible for Cancellation of Removal for Certain Nonpermanent Residents and aliens who are seeking asylum. Recently, a new class has emerged as able to benefit from being allowed into the United States, those who can adjust status here.1

According to INA § 235(b)(1), an alien is subject to expedited removal if: he is removable for lacking a visa2 or for perpetrating a fraud to effect his entry3 – unless he is a lawful permanent resident or if he demonstrates a well-founded fear of persecution through a procedure known as a credible fear interview, discussed at INA § 235(b)(1)(B). No other equities can automatically void the result.

As a result, should a person with substantial equities in the United States, such as a United States citizen wife and several United States citizen children arrive at the port of entry and not have a fear of persecution and not be a lawful permanent resident, he faces expedited removal. It is possible that instead of being removed, he could be permitted to withdraw his application for admission,4 but this most often will not advance the goal of being able legalize one's status in the United States. However, if the only alternative is an expedited removal order, permission to withdraw the application is most often the better alternative.5 A person being subjected to expedited removal is, under normal circumstances, ineligible for a bond pending removal.6
One other wrinkle in the issue of detention and bond is INA § 235(b)(2 )(C), which states that an arriving alien who is not clearly and beyond a doubt entitled to be admitted and who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States may be returned to that territory pending removal proceedings. Neither Immigration and Customs Enforcement (ICE) nor Customs and Border Protection (CBP) seem to do this, at least on California’s border with Mexico. Despite the great expense of detaining aliens and complaints about the policy of “catch and release” of aliens7 because of a shortage of detention space, DHS seems uninterested in simply returning Mexicans to Mexico to await their
removal hearings.

This is not to say that all arriving Mexicans (or Canadians) would benefit from releasing them to their countries pending removal hearings. Both Canada and Mexico are very large countries and returning an alien to the other side of the border is not by any means like sending him home to wait for court. Also, judging by how long detained aliens wait for court hearings, one can only imagine how long an “exiled” alien waiting in Mexico or Canada would have to wait for a hearing to resolve his or her case, effectively deporting him or her in the interim.

ARREST OF ALIENS INSIDE THE UNITED STATES

An alien admitted to the United States, including permanent residents, or who made his or her way into the United States without inspection, can be detained pending a decision on whether he or she is to be removed from the United States.8 Interestingly, this detention statute explicitly states the purpose of detention – pending a decision on whether the alien is to be removed from the United States. It is not a provision for the warehousing of non-deportable but undesirable aliens. This scenario often occurs when an alien lawfully in the United States is arrested and charged with a crime and the criminal court sets a bond for his release. When there is an immigration hold, sometimes ICE takes custody of the person. The issue is immediately what authority ICE has to hold the person. If there is no ground of removability, then ICE cannot hold him. If there is a ground to remove the individual, then ICE needs to set them up for a removal hearing before an immigration judge (IJ). To simply hold the alien while the criminal case progresses is outside of ICE’s authority.

MANDATORY DETENTION OF DETAINED ALIENS

When seeking release, the first area of investigation is whether ICE even has the authority to release the alien. The Mandatory Detention statute, INA § 236(c)9, governs this decision.. This statute was part of IIRAIRA,10 enacted on September 30, 1996. Because the law represented a dramatic change in detention policy and Congress realized that detention space was not available, Congress provided for a transitional period with transitional custody rules.11 The law of mandatory detention did not come into force for two years after the passage of IIRAIRA, on October 9, 1998. The statute states that:

[T]he Attorney General shall take into custody any alien [who has subject to certain grounds of removability] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”12

The interpretation of the “when the alien is released” language became of focus of a substantial amount of litigation in the federal district courts after the mandatory detention provisions came into force on October 9, 1998.

Aliens asserted that only aliens picked up by immigration officers when they were leaving jail were subject to mandatory detention. Aliens also argued that mandatory detention was unconstitutional as an infringement of their substantive due process right to liberty and their procedural due process right to a hearing regarding their right to a hearing to determine whether they could be released. The government asserted that aliens sitting at home on their couches, released even long before October 9, 1998, were subject to mandatory detention once the transitional rules expired.

After much litigation, the result is that contrary to the government’s assertions, the mandatory custody rules are not retroactive. They apply only to persons released from state or federal custody on or after October 9, 1998.13 Contrary to aliens’ assertions, there does not need to be an immediate handover from the criminal jail to the immigration jail for mandatory custody to apply– the alien can be arrested on his livingroom couch as long as he was released to his couch on or after October 9, 1998.14 Also, contrary to aliens’ assertions, the Supreme Court concluded that mandatory detention of aliens, including permanent residents, while removal proceedings are pending is Constitutional.15 The Ninth Circuit Court of Appeals has recently carved out some exceptions for cases of particularly egregious prolonged detention.16

The exceptions to being subject to mandatory custody are very limited. This section restricts release to those involved in a witness protection program, making virtually all aliens covered in 236(c) subject to mandatory detention. To the astonishment of many, there is no exception for health reasons or for hardship to family members. Mandatory means mandatory.

MANDATORY DETENTION FOR INADMISSIBLE ALIENS

According to the mandatory detention statute, anyone charged with inadmissibility for conduct under INA § 212(a)(2) shall be detained during the pendency of removal proceedings.17 This includes individuals arriving at a port of entry and seeking admission (arriving aliens)18 and
individuals who are physically present in the United States but not admitted, such as those who entered without inspection and parolees, and thus subject to grounds of inadmissibility.

Because aliens subject to grounds of inadmissibility are subject to mandatory detention for any ground of inadmissibility under INA § 212(a)(2), virtually all aliens, including permanent residents who are deemed arriving aliens who have convictions and were released from jail for their crimes on or after October 9, 1998, must be detained. Regarding aliens with moral turpitude offenses, it is useful to bear in mind the petty crime exception to the ground of inadmissibility for crimes of moral turpitude at INA § 212(a)(2)(A)(ii), which could mean that a client is not inadmissible at all, even if his “petty crime” is also a crime that could be a deportable offense
such as an aggravated felony,19 or a crime of domestic violence.20 This is so because in such a case the client would not be inadmissible under INA § 212(a)(2)(A(i)(II) because of the petty offense exception and would not be deportable under INA § 237 by virtue of being an arriving alien and not subject to an INA § 237 ground of deportability.21 It is also worthy of note that any controlled substance violation comes under INA § 212(a)(2), specifically at INA § 212(a)(2)(A)(i)(II), which amounts to a large number of those mandatorily detained. One should, of course, be aware of leniencies in the Ninth Circuit for a single simple possession conviction under Lujan Armendariz v. INS.22 Aliens inadmissible for actions or potential actions relating to terrorism23 are also subject to mandatory detention.24

MANDATORY DETENTION FOR DEPORTABLE ALIENS.

Persons who face charges of deportability under INA § 237(a) (i.e., those admitted to the United States) are also subject to mandatory detention. An attorney must carefully review INA § 236(c)(1) before concluding at a crime is a mandatory detention crime. While two crimes of
moral turpitude,25 aggravated felonies,26 controlled substance crimes,27 firearms offenses,28 and a list of miscellaneous crimes,29 do lead to mandatory detention, others, such as crimes of domestic violence, stalking, violation of a protection order and crimes against children,30 crimes relating to false documents and failing to register,31 export violation crimes,32 or a single crime of moral turpitude within five years of admission33 unless a year or more of confinement was actually imposed, do not result in mandatory detention. The ground of deportability for espionage, sabotage, criminal activity that endangers public safety or national security, or overthrowing the United States by force or violence or otherwise unlawfully is also a mandatory detention offense.34

Because of the differences between grounds of inadmissibility and grounds of deportability, some anomalies exist. For example, while an alien seeking admission to the United States may be an aggravated felon,35 which is a ground for mandatory detention at INA § 236(c)(1)(B), aggravated felony is not a ground of inadmissibility. Thus, it is possible that an alien deemed an alien applying for admission, while an aggravated felon, would not be subject to mandatory detention if his crime did not fit anywhere under the mandatory detention grounds found at INA § 212, which governs non-admitted and arriving aliens. Similarly, while an alien who was admitted to the United States and convicted of a firearms offense36 is subject to mandatory detention, an unadmitted alien or an arriving alien would not necessarily be because firearms offenses are not grounds of inadmissibility.

Perhaps an example is useful. Your client entered the United States five years ago without inspection. He remains undocumented. He was convicted of being an illegal alien in possession of a handgun, and sentenced under 18 USC § 922(g)(5). This conviction is arguably a firearms offense pursuant to INA § 237(a)(2)(C) and an aggravated felony pursuant to INA § 101(a)(43)(E)(ii). Both of these sections mandate mandatory detention. However, because your client entered without inspection, he did not undergo inspection and authorization by an immigration officer and pursuant to INA § 101(a)(13) has not been admitted. As such he cannot be placed in proceedings governed by the INA § 237 grounds because he is not in and admitted to the United States as required at INA § 237(a). Consequently, he is charged under INA § 212(a) grounds. There is no criminal ground at INA § 212(a)(2) that corresponds to the firearms offense ground or the aggravated felony ground. Thus he is eligible for release on bond. Should ICE not accept this argument, an IJ should.

RELEASE FROM DETENTION FOR ARRIVING ALIENS.

Once the alien is detained and has avoided expedited removal, efforts begin to effect the alien's release. These overtures are made to ICE, as the immigration courts do not have jurisdiction regarding arriving aliens.37 Because an IJ has no authority over the apprehension, custody, and detention of arriving aliens he is also without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.38 At this point, the alien is seeking parole into the United States, parole being a legal fiction wherein an alien is physically inside the United States, though he has not been admitted to the country.

ICE’s concerns are whether the alien poses a threat to public safety and whether the alien is a flight risk.39 An attorney should present a packet to the ICE officer requesting release and documenting that ICE should not find that the alien is a danger to the community or a flight risk. It is prudent to include documentation to describe the human element of the alien, as this can go a long way in showing that the alien is not a danger.

Thus, documentation showing that the alien has a family, supports his family economically and emotionally, is involved in the schooling of his children, cares for ill relatives, attends religious services, pays taxes, and is a good friend and neighbor can help effect release. In addition, in the case of an alien with criminal convictions, documentation showing the relatively minor nature of the conviction, that probation was completed successfully, that the crime occurred a long time ago, and the alien has since rehabilitated, and that the crime was an aberration, also will help demonstrate that the alien is not a danger. Documentation such as copies of marriage and birth certificates, family members' immigration documents, proof of employment through recent pay stubs and tax returns, and letters from family, friends, doctors, probation officers, co-workers, employers, and clergymen will help the client.

As far as the issue of flight risk, if relief is available to the client, this is strong evidence that the alien has every interest in attending his hearing.40 Evidence that shows strong roots to the community and close family ties and interdependence is also probative of a low flight risk. A lack of history of failing to appear and of absconding should also be pointed out. ICE should also be reminded that any residual concerns regarding a flight risk can be cured through the setting of a reasonable bond. Some ICE offices look for an I-134 Affidavit of Support as part of the release request packet, particularly in the case of releasing aliens seeking asylum who are new to the United States.

If you are dealing with a local ICE field office that is new to you, you should contact that office and practitioners who have dealt with that office to learn what that office expects and what the procedures are for requesting a client’s release from custody.

RELEASE FROM DETENTION FOR ALIENS WHO HAVE ACCOMPLISHED ENTRY.

After ICE arrests an alien present in the United States after an admission or after entering without inspection, ICE makes an initial custody determination41 . 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 set42 . If ICE determines that an alien is subject to mandatory detention, that determination may also be contested before an IJ at a bond hearing.43

Exactly how to schedule a bond hearing differs from court to court. The regulations allow for scheduling by written or oral motion or by request by telephone.44 Often, IJ’s accept documentation at the time of the hearing in support of the bond request. Individual courts and even individual IJ’s may have different practices so consultation with the clerk of the court is a prudent move. Where the argument is that an individual is not properly classifiable as subject to mandatory detention or is not removable, it is advisable to brief the court in advance of the hearing. Even then, it is quite possible (if the ICE Chief Counsel opposes your position) the IJ will not rule without giving the government a chance to respond, necessitating prolonged detention for your client.

Where Counsel has a strong argument that an alien is not subject to mandatory detention, either because the client does not fit in a category under INA § 236(c) or because the alien is not removable at all, relying on the IJ at a custody hearing to release your client could take a long time or be unavailing should the IJ defer to the IJ conducting the removal hearing to make important legal conclusions. In such a case, prudence dictates informing ICE Detention and Removal officers and the Office of the Chief Counsel of your arguments before the custody hearing. ICE officials know they make mistakes and may just release your client. Where an alien’s detention is unlawful, it also alerts the officer to this and the fact that his disregard for the law could subject ICE and even the individual officer to civil sanctions.45
An IJ has the discretion of whether or not to record bond proceedings. A bond proceeding is separate and apart from removal proceedings.46 Thus, Counsel must re-submit documents with the court for a removal proceeding though the documents may have been filed with the court in a bond proceeding.

The INA requires that the minimum bond to release an alien be $1,500,47 at least when the IJ sets bond. IJ’s sometimes order release without the requirement to post any bond. This can occur when there are particularly compelling humanitarian reasons, such as when an alien is unambiguously eligible and deserving of relief from removal but is very poor, or when it is quite obvious that the alien is not removable. It is not clear where the authority lies for release of an alien on his own recognizance; perhaps from INA § 236(a)(2)(B), which allows for conditional parole, a term of art unexplained in the statute or regulations. It would indeed be anomalous for an IJ to determine that the government is substantially unlikely to prevail in a removal case because the alien is in fact a United States citizen, but then require this alien to post a bond to be released.

APPEAL

Either party may appeal the determination of the IJ with respect to custody to the Board of Immigration Appeals (BIA). There is no fee for a bond appeal.48 Because there is often no audio record, the IJ must prepare a memorandum of decision summarizing his or her findings and conclusions.49 There are no transcripts or formal evidentiary record on appeal; the BIA will issue a briefing schedule and all parties are presumed to have a record of the documentary evidence. Bearing in mind that a BIA decision regarding the bond appeal may be months off, one should consider whether the removal case will be concluded before the BIA adjudicates the bond appeal.

ICE has the authority to stay an IJ’s custody determination. ICE can do this two ways. ICE can ask the BIA to impose a stay when it files an appeal.50 Additionally, ICE can stay an IJ's order in any case where ICE had originally determined that there would be no bond or set a bond of $10,000 or higher.51 To do this, the ICE counsel has to file a Notice of Intent to Appeal Custody Redetermination, Form EOIR-43, within one business day of the IJ’s order. For this “automatic stay” to remain in place, ICE counsel must actually file a notice of appeal within ten business days of the IJ’s order. In the meantime, the alien remains in confinement. The stay remains in place unless the BIA lifts it. The BIA’s lifting of the stay itself is automatically stayed for five days to give ICE an opportunity to certify the lifting decision to the Attorney General.52

CHANGED CIRCUMSTANCES

It is not uncommon that at a bond hearing, the IJ refuses to allow the alien to be released.53 In addition to appealing the decision, an alien can also ask for a new custody hearing. While the first bond redetermination hearing can most often be requested orally, the second and subsequent requests are made on written motions.54

The standard is that the alien present substantially changed circumstances before an IJ will grant a second or subsequent bond hearing.55 This is a difficult standard, particularly because of the nature of the initial bond hearing. The alien and counsel are often disposed to seek at bond hearing as soon as possible. Sometimes the documents that could persuade an IJ to set a bond are not yet available and the IJ refuses to set a bond. Just obtaining these documents is not a substantially changed circumstance that will motivate a new hearing . The reality is that there is effectively only one bite of the apple at the custody hearing phase of the case and it is best to prepare adequately rather than squander the only real opportunity to have the IJ order a reasonable bond and release of the alien. An alien can seek a second or subsequent bond redetermination hearing without jeopardizing a pending appeal of a decision rendered in the first hearing56.

In the case of arriving aliens, recourse for reconsideration is to submit a new request to the ICE officer in charge of the case or ask for supervisory review. Quite frequently ICE officers deny bonds based on mistaken assumptions about the case. For example, in one recent case, an ICE officer denied an alien’s release because the alien had a prior deportation order. The ICE officer assumed the alien therefore had no relief available to him. When it was pointed out that the deportation occurred before the alien became a permanent resident through amnesty, a bond was set. In another case, an ICE officer denied a bond because the alien had already received relief once in immigration court, and thus could not obtain relief a second time.57 When it was pointed out that the relief the alien received was Registry,58 the officer set a bond.

One interesting variation on the normal course of proceedings is when, after an IJ sets a bond, ICE alleges a change in circumstances to either refuse to release the alien or takes the alien back into its custody. It seems contrary to the regulatory scheme for the government to be able to simply ignore an IJ’s order. The government, on the other hand asserts that if new information is unearthed or new anti-social conduct is committed, the government should be free to detain the alien rather than countenance a threat to society roaming the streets. The government asserts that has authority to take an alien back into custody on its own initiative.59 Further, an amendment to the regulations changed 8 CFR 1003.19(e), regarding filing a motion with the IJ for reconsideration of custody status, from neutrally relating to both the government and the alien to referring only to the alien.60 Thus, the mechanism for the government to seek reconsideration of the terms of custody through the immigration court does not even exist.

CONCLUSION

Homeland Security has been vested with great powers to detain aliens. The procedures the agency uses to arrest, detain, and release aliens depend on where the alien was arrested, when the alien was arrested and why the alien is being detained. Counsel for aliens ensnared in the DHS detention system are wise to figure out exactly what the legal position of the client alien is. While the harshness of the current system of detention precludes the release of many, for those who can be released, the efforts to make this release possible are particularly rewarding because of the importance we all attach to freedom.


*Jonathan D. Montag practices immigration law at Montag & Nadalin LLP in San Diego, California. He is a graduate of the University of Pennsylvania and the University of San Diego School of Law. He is a past San Diego Chapter Chair, a member of the National Benefit Center Liaison Committee, and is on the Immigration Today Editorial Advisory Board. He was named one of California Lawyer Magazine attorneys of the year for the year 2005.

1 See 71 FR 27585, 27591, May 12, 2006 (amending 8 CFR 245.2(a)(1) and 1245.2(a)(1)(i) and repealing 8 CFR 245.1(c)(8) and 1245.1(c)(8)).

2 INA § 212(a)(7).

3 INA § 212(a)(6)(C).

4 8 CFR § 235.4.

5 Should the alien have triggered the ten-year bar at INA § 212(a)(9)(B)(i)(II) when he left the country or the “permanent bar” at INA § 212(a)(9)(C) by attempting to return, or be otherwise barred from admission, then the free ticket home under a removal order may make expedited removal at least financially preferable to withdrawing the application for admission.

6 8 CFR § 235.3(b)(2)(iii).

7 See, inter alia, Berestain, Immigration Detention System Strained; Backlog, Lack of Space Pose Hurdles to Bush's Strategy,” San Diego Union Tribune, November 30, 2005.

8 INA § 236(a).

9 INA § 236(c) (1) Custody. The Attorney General shall take into custody any alien who

(A) is inadmissible by reason of having committed any offense covered in section
212(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),

(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the
alien has been sentence to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B),

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

(2) Release. The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.

 

10 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009. Prior to IRRAIRA, other detention laws applied, including the Immigration Act of 1990 that required the detention of aggravated felons who were not permanent residents. See, inter alia, the pre-IRRAIRA INA §§ 242(a)(2)(A) and (B).

11 8 CFR §§ 1236.1(c)(2) - (c)(8).

12 INA § 236(c)(1).

13 Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999).

14 Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). This decision has never been affirmed by the Ninth Circuit Court of Appeals, probably because no one has sat detained long enough without a change in circumstances (like losing his case) for the case to be decided.

15 Demore v. Kim, 538 U.S. 510 (U.S. 2003).

16 Tijani v. Willis, 430 F.3d 1241, 1243 (9th Cir. 2005); Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006).

17 INA § 236(c)(1)(A).
18 See, 8 CFR § 1.1(q) for the definition of arriving alien and INA § 101(a)(13)(C) for the definition of when a permanent resident is considered an applicant for admission and thus, an arriving alien.

19 INA § 237(a)(2)(A)(iii).

20 INA § 237(a)(2)(E).

21 The ground of deportability, INA § 237(a)(2)(E), is not a mandatory-detention offense. See, discussion, infra.

22 222 F.3d 728, 733 (9th Cir. 2000).

23 INA § 212(a)(3)(B).

24 INA § 236(c)(1)(D).

25 INA § 237(a)(2)(A)(ii).

26 INA § 237(a)(2)(A)(iii).

27 INA § 237(a)(2)(B).

28 INA § 237(a)(2)(C).

29 INA § 237(a)(2)(D).

30 INA § 237(a)(2)(E).

31 INA § 237(a)(3).

32 INA § 237(a)(4)(A)(i).

33 INA § 237(a)(2)(A)(i)(I).

34 INA § 237(a)(4)(B).

35 INA § 237(a)(2)(iii).

36 INA § 237(a)(2)(C).

37 8 CFR § 236.1(c)(11).

38 Matter of Oseiwusu, 22 I. & N. Dec. 19 (BIA 1998); 8 CFR § 1212.5(b).

39 8 CFR § 236.1(c)(8)(1999); Matter of Drysdale, 20 I. & N. Dec. 815 (BIA 1994); Matter of Adeniji, Int. Dec. 3417 (BIA 1999).

40 San Diego ICE has a policy as of late not to release any alien who is not eligible for relief. This applies to cases where inadmissibility is at issue, such as alien smuggling cases. As an example, trying to show an ICE officer how weak the smuggling case is will not dissuade officers from denying a request for release from custody unless the alien has Cancellation of Removal for Certain Permanent Residents relief available to him or her.

41 8 CFR § 1236.1(c)(1). As of late, ICE officers in San Diego, asserting they are overwhelmed with bond determinations in cases of arriving aliens where they have exclusive jurisdiction, are not releasing aliens and leaving the bond-setting process to the immigration court.

42 8 CFR § 1003.19. An alien can even ask for a bond hearing up to seven days after he is released if he is unsatisfied with the terms of his release, i.e., the restrictions ICE has placed on him or her or the amount of the bond ICE set. 8 CFR §1236.1(d)(1). After this seven day period, the alien can make this request to ameliorate the terms of release to the local ICE field office director.

43 Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). An alien may seek release, not only based on an assertion that the removability charge is not a basis for mandatory detention, but also based on a contention that the charge of removability is not sustainable and thus detention is not appropriate. See also, 8 CFR § 3.19(h)(2)(ii). At a Joseph hearing,” the BIA indicated that when an IJ undertakes to decide whether an alien is a member of a mandatory detention category, the IJ need not make a finding regarding the merits of the case, but needs only to decide that the INS is substantially unlikely to prevail in its charge. At a Joseph hearing, the alien can also contest that he is an arriving alien which deprives the IJ of jurisdiction over bond setting. This usually occurs in the context of a lawful permanent resident apprehended at the border who asserts he is not applying for admission according to INA § 101(a)(13). Similarly, a United States citizenship claim can be made at a Joseph hearing. The Joseph hearing procedural safeguard to unlawful detention was an underpinning of the Supreme Court’s conclusion that mandatory detention of permanent residents is constitutional. Demore v. Kim, supra.

44 8 CFR § 1003.19(b).

45 See, Sissoko v. Rocha, 440 F.3d 1145, 1152 (9th Cir. 2006), where an immigration inspector who placed an alien in detention when it would have been clear to a reasonable inspector that detaining the alien was illegal, the alien was eligible to pursue damages and the inspector was not entitled to qualified immunity for her actions.

46 8 CFR § 1003.19(d).

47 INA § 236(a)(2)(A).

48 8 CFR 1103.7 (No fee for reconsideration of a decision on an application for relief where no fee is chargeable).

49 When an attorney files an appeal of a bond determination, it is prudent and courteous to inform the IJ so he or she can prepare the memorandum while the case is still fresh in his mind, rather than having the IJ be informed by the BIA of the appeal and the BIA request the memorandum of the IJ weeks later.

50 8 CFR § 1003.19(i)(1).

51 8 CFR § 1003.19(i)(2).

52 Id.

53 As one courageous IJ once said at a hearing, “I don’t want to see my name in the New York Times for having released this guy.”

54 8 CFR § 3.19(e).

55 Id.

56 Matter of Valles-Perez, 21 I. & N. Dec. 769 (BIA 1997).

57 See, INA § 240A(c)(6), which states that an alien who has previously received Cancellation of Removal, suspension of deportation, or 212(c) relief, cannot obtain Cancellation of Relief.

58 INA § 249.

59 INA § 236(b); 8 CFR 1236.1(9); Matter of Valles-Perez, supra, at 772.

60 70 FR 4743, 4753, Jan. 31, 2005


*Jonathan D. Montag practices immigration law at The Law Offices of Jonathan D Montag in San Diego, California. He is a graduate of the University of Pennsylvania and the University of San Diego School of Law. He is a past San Diego Chapter Chair, a member of the National Benefit Center Liaison Committee, and is on the Immigration Today Editorial Advisory Board. He was named one of California Lawyer Magazine attorneys of the year for the year 2005.

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