“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
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
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
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
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
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
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
- A refugee who has failed to acquire permanent residence one year after arrival and is being held subject to
- 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.
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.
1 To Paraphrase Elizabeth Barrett Browning, Sonnet 43.
2 INA §236(a).
3 8 CFR §1236.1(c)(1).
4 8 CFR §1003.19.
5 Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).
6 See 8 CFR §1.1(q), 8 CFR §1001(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.
7 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, div. C, 110 Stat.
3009, 3009-546 to 3009-724.
8 INA §235(b)(1)(A).
9 INA §235(b)(1)(A)(i); 8 CFR §§235.3(b)(1)(ii), 1235.3(b)(1)(ii).
10 8 CFR §§235.3(b)(2)(iii), 1235.3(b)(2)(iii).
11 INA §236(c).
12 8 CFR §236.1(d)(1), 8 CFR §1236.1(d)(1).
13 8 CFR §287.3.
14 25 I&N Dec. 45 (BIA 2009).
15 INA §217.
16 Matter of Werner, n.1.
17 See, 8 CFR §287.3(d) (“Custody procedures. Unless voluntary departure has been granted pursuant to subpart C of 8 CFR
part 240, a determination will be made within 48 hours of the arrest, except in the event of an emergency or other extraordinary
circumstance in which case a determination will be made within an additional reasonable period of time, whether the alien will
be continued in custody or released on bond or recognizance and whether a notice to appear and warrant of arrest as prescribed
in 8 CFR parts 236 and 239 will be issued.”)
18 See, 8 §CFR 287.7(d) (“Temporary detention at Department request. Upon a determination by the Department to issue a
detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a
period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the
19 8 CFR §235.3(b)(5), 8 CFR §235.3(b)(5).
20 Demore v. Kim, 538 U.S. 510, 527 (2003).
21 Zadvydas v. Davis, 533 U.S. 678, 691 (2001).
22 “To the extent that the indefiniteness of the respondent’s detention may raise due process concerns, the respondent’s remedy
lies in recourse to the federal courts, as the Immigration Judge and this Board lack jurisdiction over his custody status.” Matter
of Kolok, A# 78-765-309 (BIA 2009).
23 8 CFR §1003.14(a)
24 Matter of Werner, 25 I&N Dec. 46, fn. 2.
25 This tenuous explanation also fails to explain how an IJ would know whether an individual was served with an NTA that had
not been filed with the immigration court.
26 22 I&N Dec. 799, supra.
27 Id. at 802. See also, Matter of Valles-Perez, 21 I&N Dec. 769, 772 (BIA 1997) (“The regulations and the Board mention
only two instances where an Immigration Judge is divested of jurisdiction over a bond proceeding. The first is upon the lapse
of the 7-day period following an alien's release from custody. The second is upon the entry of an administratively final order of
28 Practitioners should bear in mind that federal habeas corpus proceedings are available for detained aliens even if IJ bond
proceedings are not, as the next section demonstrates. See, Matter of Kolok, supra.
29 Demore v. Kim, supra note 20, at 527.
30 Nadarajah v. Gonzalez, 443 F.3d 1069, 1079–80 (9th Cir. 2006).
31 535 F.3d 942 (9th Cir. 2008).
32 The Court held that §1226(c) “was intended to apply for only a limited time” during a removal proceeding, and that the authority
to detain Mr. Casas-Castrillon under §236(c) ended when his proceedings before the BIA were concluded. After the
BIA ruled, the authority to detain him “shifted” to §236(a). See Casas-Castrillon, 535 F.3d at 948.
33 Casas-Castrillon, at 951(citing Tijani v. Willis, 430 F.3d at 1242). The Court rejected Mr. Casas-Castrillon’s argument that
his detention had become indefinite and therefore no statute (including §236(a)) authorized further detention.
34 Id. at 951 (“Because the prolonged detention of an alien without an individualized determination of his dangerousness or
flight risk would be ‘constitutionally doubtful,’ we hold that §1226(a) must be construed as requiring the Attorney General to
provide the alien with such a hearing.”) (citing Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (emphasis in original)).
35 Nadarajah, supra note 30, at 1080. See also Tijani v. Willis.
36 Owino v. Napolitano, 575 F.3d 952, 955–56 (9th Cir. 2009).
45 See, e.g., Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003); Bourguignon v. Macdonald, ___F. Supp. 2d __, 2009 WL 3600379 (D.
Mass. 2009); Bonsol v. Perryman, 240 F. Supp. 2d 823 (N.D. Ill. 2003); Alli v. Decker, 644 F. Supp. 2d 535 (M.D. Pa. 2009);
Diomande v. Wrona, 2005 WL 3369498 (E.D. Mich. 2005); Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007).
46 8 CFR §§235.3(b)(2)(iii), 1235.3(b)(2)(iii).
47 Expedited removal can also be applied to individuals who are apprehended within 100 miles of the Canadian or Mexican
border and were present in the United States for less than 14 days. See 67 Fed. Reg. 48877 (Aug. 11, 2004). This is important
in the case of asylum seekers as some are being smuggled across borders and do not enter the United States through established
ports of entry.
48 INA §212(a)(7)(A)(i).
49 INA §212(a)(6)(C).
50 INA §235(b)(1)(B)(v).
51 INA §235(b)(1)(B)(ii).
52 ICE Policy Directive No. 7-1.0, “Parole of Arriving Aliens Found to have a Credible Fear of Persecution or Torture (Nov. 6,
2007), available at
53 ICE Policy Directive No. 11002.1, “Parole of Arriving Aliens Found to have a Credible Fear of Persecution or Torture”
(Dec. 8 2009), published on AILA InfoNet at Doc. No. 09121760 (posted Dec. 17, 2009); also available at
54 “Revised Policy for Arriving Aliens with Credible Fear Claims” (Dec. 16 2009), available at
55 The statute states, “The Attorney General may, except as provided in subparagraph (B) or in section 214(f), in his discretion
parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien applying for admission to the United States....”
56 See “ICE issues new procedures for asylum seekers as part of ongoing detention reform initiatives,” available at
57 Available at http://www.humanrightsfirst.org/asylum/pdf/parole-advisal-scheduling.pdf. Also, for a listing of local ICE/DRO offices,
58 Whether this interview can be done by telephone, televideo or in person is unclear and practices will likely vary depending
on the location of the field offices and the detention centers in question. As the attorney of record, you should request to be
present at the parole interview as a matter of zealous representation, though this request may not be granted in practice.
59 The policy memorandum allows for identification to be proved by third party affiants. It is important to note here that third
party affiants must be able to provide valid, government issued identification documents and fully establish their own identities
and addresses. In addition to the difficulties involved in obtaining documentation from detention, this requirement poses an
additional hurdle for those asylum seekers who have no contacts in the United States or must rely on home country nationals to
verify their identities.
60 Practitioners should note that their clients might still have to post a bond with ICE and/or be subject to an alternative to detention
program as a condition of release on parole. Further, the applicant must be able to provide ICE DRO with a valid address
in the United States or parole will be denied.
61 See ICE Policy Directive No. 11002.1, at para. 8.2 In the previous parole policy, there was a “two-pronged” approach to
evaluating an asylum seeker’s eligibility for release on parole. First, the applicant had to establish each of the requirements
listed above, and then had to show that he or she was a juvenile, medically certified as pregnant, a witness in a criminal investigation,
or that it was in the “public interest” for him or her to be released on parole under 8 CFR 212.5(b). This is no longer
the case with the new guidance.
62 See “Record of Determination/Parole Determination Worksheet,” available http://www.humanrightsfirst.org/asylum/pdf/paroledetermination-
63 See ICE Policy Directive No. 11002.1, at para. 8.2. In the past, the applicant or attorney of record was rarely provided with written records of any kind, denial or otherwise. Further, no notice was given regarding an ability to have the decision reconsidered. The new guidance specifically instructs otherwise, and also provides that the attorney of record must be given a copy of the written parole decision within seven days of the interview. Id. at para. 6.6.
64 If your client was denied parole prior to your being retained as counsel, you should request a parole redetermination and also request a full interview, with your presence.