New York Lawyer's Legal Updates

When Jurisdiction Exists To Challenge ICE For The Denial Of Bond

Author: Deportation Attorney Alena Shautsova

ICE will have sole discretion and jurisdiction of an Immigration Judge does not exist to challenge the bond or parole determination in the following instances:

  • That of an “Arriving Alien” whether they are a Lawful permanent resident or not.
  • Individuals subject to mandatory detention.
  • Individuals charged as deportable on security, political, or terrorism related grounds.
  • Persons in exclusion proceedings.
  • Under the Visa Waiver Program DHS is able to avoid the provision of a bond hearing by issuing an I-863 rather than a Notice to appear I-862 even in the event of an asylum application. Unless of course the proceeding is initiated by an NTA ( I-862)
  • Persons with final administrative orders of removal.*

An Immigration Judge will have Jurisdiction over the bond or parole determination if:

  • If the petitioner is a lawful permanent resident who is “most likely” to prevail on charge of removability.
  • Absent exceptional circumstances such as national security issues or danger to the community as well as any requirement under the law to detain the individual, ICE policy is to favor release of aliens who have been granted protection relief by an Immigration Judge. This is most relevant to persons granted asylum, withholding, or CAT.
  • Unaccompanied minors – may not be held in a facility for more than 72 hours. Unless the minor has:
    • previously been charged or convicted of an offense other than EWI.
    • Is subject to delinquency proceedings.
    • Engaged in violent or disruptive conduct.
    • Escaped from another facility.
    • Is an unrepresented Salvadoran under Orantes
    • Other Extraordinary compelling reasons.

While the jurisdiction of an Immigration Judge can seem extremely limited in these circumstances, an Immigration Judge always has the authority to review whether or not the petitioner is subject to classification of the groups the Immigration Judge does, or does not have jurisdiction over. If the circumstances have changed at any point during the detention of the petitioner they may appeal.

Generally the Attorney General is not subject to review of his discretionary judgment. The courts are not permitted to “set aside” the decisions and actions made by the Attorney General regarding the denial of bond or parole.

The appeal of a bond decision by the petitioner must be done with the BIA (Board of Immigration Appeals) within 10 days of the District Director’s decision to appeal, 30 for the petitioner’s decision.

*Detention statutes require bond hearing for individual with administratively final removal order See Casas-Castrillon v. DHS, 535 F.3d 942 (9th Circuit 2008). However a constitutional or statutory challenge to detention may always be brought.

29 December 2014
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