Detention and Bond Redetermination

The University of Texas School of Law Presented: Immigration Fundamentals: Removal, Relief and Adjustment April 14-15, 2005 Crowne Plaza Houston-Downtown Houston, Texas April 28-29, 2005 Cityplace Conference Center Dallas, Texas Detention and Bond Redetermination Lee J. Teran Sample Bond Applications and Supporting Documents Barbara Hines Author Contact Information: Lee Teran St. Mary s University School of Law San Antonio, TX lteran@stmarytx.edu 210-431-5709 Continuing Legal Education 512-475-6700 www.utcle.org

DETENTION AND BOND REDETERMINATION INTRODUCTION The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) made substantial changes to immigration law, particularly with regard to enforcement against illegal immigration and immigrants convicted of crimes. IIRIRA increased the grounds for removal, restricted relief from removal even to long term residents, and stripped federal courts of review in removal cases. IIRIRA also significantly altered the rules for detention during removal proceedings and following final orders of removal for non-citizens charged under the criminal grounds of inadmissibility and deportability. Consequently, detention of non-citizens has sharply increased. In 1995 the Immigration and Naturalization Service (INS) detained 85,730 individuals. 1 By 2002, the number of detentions swelled to over 200,000 persons. 2 Long term and mandatory detention by the INS, and now the Department of Homeland Security (DHS), has prompted numerous legal challenges, including the recent Supreme Court cases, Zadvydas v. Davis, 121 S.Ct. 2491 (2001), Demore v. Kim, 123 S.Ct. 1708 (2003), and Clark v. Martinez, 125 S.Ct. 716 (2005). This paper is intended to provide an overview of the changes made by IIRIRA and the recent case law and regulations governing detention and bond proceedings. 3 Accompanying this paper are suggested applications for bond redetermination and supporting documents. STATUTES AND REGULATIONS The Immigration and Nationality Act (INA) gives the federal government broad authority to inspect aliens arriving into the United States and to stop and arrest individuals suspected of unlawful presence in the United States. See INA 235, 8 U.S.C. 1225; INA 287, 8 U.S.C. 1227; see also 8 C.F.R. 235.3, 287.5. Arriving non-citizens may be subject to expedited proceedings and immediate removal without hearing or judicial review. INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). The statute exempts from expedited removal arriving non-citizens who establish a credible fear of persecution if returned to their home country, but mandates detention for arriving asylum seekers pending proceedings. INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV). In cases in which the government institutes removal proceedings against an arriving alien, s/he is subject to detention without bond. INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A); 8 C.F.R. 235.3. The rules for determining admission of legal permanent residents returning to the United States have changed, and increased the likelihood that a legal resident will be detained without bond even after a brief departure. Prior to IIRIRA, a legal resident who departed the United States was not considered an arriving alien if the departure was brief, casual, and innocent. Rosenberg v. Fleuti, 374 U.S. 449 (1963). Now, under INA 101(a)(13), 8 U.S.C. 1101(a)(13), the definition of admission, a returning permanent resident is an arriving alien and subject to detention without bond if s/he has abandoned status, been absent in excess of 180 days, engaged in an illegal activity abroad, entered without inspection, departed pending

removal or extradition proceedings, or committed prior to departure an offense described in INA 212(a)(2), 8 U.S.C. 1182(a)(2). INA 101(a)(13)(C)(i)-(vi), 8 U.S.C. 1101(a)(13)(C)(i)-(vi). The government can arrest an individual without a warrant if there is reason to believe that the individual is in the United States in violation of law and is likely to escape before a warrant can be obtained... INA 287(a)(2). 4 Detention of non-citizens present in the United States is governed by INA 236(a), 8 U.S.C. 1226(a), which provides that an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. 5 The statute authorizes the government to release non-citizens on a bond of at least $1500" or conditional parole. INA 236(a), 8 U.SC. 1226(a). However INA 236(c),8 U.S.C. 1226(c) mandates the detention without bond of non-citizens who are inadmissible or deportable under specified crime-related grounds. INA 236(c), 8 U.S.C. 1226(c) requires detention for the duration of the removal proceedings, and authorizes release only if necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity or the family or close associates of the witness. INA 236(c)(2), 8 U.S.C. 1226(c)(2). 6 The USA Patriot Act gave added authority for the detention of individuals who are believed to be a danger to the national security. INA 236A, 8 U.S.C. 1226a, mandates the custody of any non-citizen when it has reasonable grounds to believe that the individual is inadmissible or deportable under specified security and terrorism grounds, or is engaged in any other activity that endangers the national security of the United States. INA 236A(a), 8 U.S.C. 1226a(a). Congress recognized the government would need time to increase detention space before it could comply with the mandates for detention. The Transition Period Custody Rules under IIRIRA 303(b)(3) gave the government up to two years to increase detention facilities and implement 236(c), 8 U.S.C. 1226(c). During the transition period until October 9, 1998, the government applied pre-iirira standards and was authorized to release lawfully admitted noncitizens who were charged under criminal grounds if they demonstrated that they would likely appear at any proceedings and would not pose a danger to persons or property. 8 C.F.R. 236.1(c))(3). Non-citizens without legal status remained ineligible for release during this transition period. 8 C.F.R. 236.1(c)(2). The federal rules provide generally that custody determinations made by the government may be reviewed by the immigration judges. See 8 C.F.R. 1003.19(a), 1236.1(d)(1). However, the regulations also limit the jurisdiction of immigration judges to redetermine a broad range of custody determinations made by district directors. Immigration judges are not authorized to hear bond cases for non-citizens subject to final orders of removal. 8 C.F.R. 236.1(d)(1). The rules at 8 C.F.R. 1003.19(h) provide that immigration judges are not authorized to hear custody cases for arriving aliens, non-citizens charged under the security and terrorism ground of deportability, and non-citizens subject to INA 236(c), 8 U.S.C. 1226(c) (except for those individuals detained during the transition period). An immigration judge may determine whether a non-citizen is properly included in the statutory and regulatory bars. 8 C.F.R. 1003.19(h)(1)(ii), (2)(ii). 7

Federal regulations also authorize a stay of an immigration judge s decision granting a bond redetermination pending the government s appeal to the Board of Immigration Appeals (Board). The Board may issue an emergency stay in any bond case at the request of the government. 8 C.F.R. 1003.19(i)(1). An automatic stay is permitted when the immigration judge ordered the redetermination of a bond in any case in which the district director has determined that an alien should not be released or has set a bond of $10,000 or more.... 8 C.F.R. 1003.19(i)(2). The automatic stay becomes effective when the government files a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one day of the immigration judge s order, and the stay remains effective pending appeal to the Board if the government files an appeal of the judge s order within ten business days. If the Board grants the appeal, the rules also provide for a five day automatic stay of that decision pending the Commissioner s certification to the Attorney General. Id. Custody decisions after a final removal order are governed by INA 241, 8 U.S.C. 1231. The statute requires that the government detain non-citizens who are subject to final orders of removal, 8 C.F.R. 1241.3, and it further mandates that, [u]nder no circumstances during the removal period shall the Attorney General release an alien who has been found inadmissible under [INA 212(a)(2) or (a)(3), 8 U.S.C. 1182(a)(2) or (a)(3)] of this title or deportable under [INA 237(a)(2) or (a)(4)(b), 8 U.S.C. 1227(a)(2) or (a)(4)(b)] of this title. INA 241(a)(2), 8 U.S.C. 1231(a)(2); 8 C.F.R. 1241.4. The statute requires that the government remove non-citizens who are subject to final orders within 90 days. INA 241(a)(1)(A), 8 U.S.C. 1231(a)(1)(A). The removal period may be extended and the noncitizen detained beyond the 90 day removal period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien s departure... INA 241(a)(1)(c), 8 U.S.C. 1231(a)(1)(c). MANDATORY DETENTION INA 235, 8 U.S.C. 1225, has been implemented and mandates detention of all arriving aliens. It is the position of DHS that it has sole and unreviewable discretion to make custody determinations for arriving aliens. Non-citizens subject to expedited removal are detained pending the removal process. 8 Arriving aliens who avoid the expedited removal process but are not admitted pending removal proceedings are nonetheless subject to detention. [I]f 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... INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). This includes non-citizens who establish a credible fear of persecution if removed from the United States. INA 235(b)(1)(B)(iii)(IV), 8 U.S.C. 1225(b)(1)(B)(iii)(IV). Mandatory detention of returning residents has increased since IIRIRA. Legal permanent residents who are returning from travel abroad and meet the definition of an arriving alien, are detained without bond. See Matter of Collado, 21 I&N Dec. 1061 (BIA 1997) (The Board finds the Fleuti doctrine and consideration of the nature of a legal resident s departure no longer applicable to determining the status of a returning legal resident). A detained arriving alien may request, pursuant to INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), parole from detention, subject to evidence of urgent humanitarian reasons or significant public interest and provided the applicant is not a security or flight risk. See also 8 C.F.R. 212.5. 9

On October 9, 1998, the transition custody period expired and INA 236(c), 8 U.S.C. 1226(c), mandatory detention became effective for all non-citizen, including legal residents, charged under specified crime-related grounds of inadmissibility and deportability. The detention rules apply only to those non-citizens who are released from criminal custody on or after October 9, 1998. Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999)( INA 236(c), 8 U.S.C. 8 U.S.C. 1226(c) does not apply to non-citizens who were released from criminal custody prior to the expiration of the transition custody rules). Support for this exception to mandatory detention of criminal aliens is found at IIRIRA 303(b)(2), which provided that at the end of the transition custody period, the provisions of such section 236(c) shall apply to individuals released after such periods. (emphasis added) Id. at 1111. INA 236(c), 8 U.S.C. 1226(c), is triggered by a broad set of criminal offenses, and mandates detention without regard to the individual s term of residence in the United States, ties to this country and efforts to rehabilitate. The statute includes a long list of crime-related grounds of inadmissibility or deportability which activate the mandatory detention rules. - INA 212(a)(2), 8 U.S.C. 1182(a)(2), (crimes of moral turpitude, controlled substances offenses, multiple convictions with aggregate sentences of five years, prostitution and commercialized vice, crimes in which immunity was invoked, violations of religious freedom, trafficking in persons, and money laundering; -INA 237(a)(2)(A)(ii), (A)(iii), (B), (C)), and (D), 8 U.S.C. 1227(a)(2)(A)(ii), (A)(iii), (B), (C), and (D), (two or more crimes of moral turpitude, aggravated felony convictions, controlled substances crimes, firearms convictions, and miscellaneous convictions); -INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), (crime of moral turpitude with a sentence to a term of imprisonment of at least one year); -INA 212(a)(3)(B), 8 U.S.C. 1182(a)(3)(B), or INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B), (terrorist activities). The statute provides that the Attorney General must take custody when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation... INA 236(c), 8 U.S.C. 1226(c), (emphasis added). The Board in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) ruled that mandatory detention applied to the respondent who was released after the transition period ended on October 9, 1998 even though the government did not assume custody of him immediately following his release from criminal custody. But see Matter of West, 22 I&N Dec. 1405 (BIA 2000) ( 236(c), 8 U.S.C. 1226(c), not applicable to individual released from state custody prior to the Oct. 1998 deadline, and placed by the state on probation post deadline. The when released language refers to respondent s release from physical custody of the state.) A detained non-citizen can challenge in a bond hearing the government s application of