By Attorneys Robert L. Reeves and Lori B. Schoenberg

On October 2, 2006, the federal government issued new rules for reviewing an order by Immigration Judges to release people arrested for immigration violations from the custody of the United States Department of Homeland Security (DHS). Those new rules limit the federal government’s ability to continue to hold arrestees for immigration violations while DHS officials contest an Immigration Judge’s decision to release that person on bond or on conditional parole.

The new rules affect people who are in removal proceedings. Removal proceedings are a series of hearings before an Immigration Judge to determine whether people charged with violating immigration law may be deported from the United States. People in removal proceedings are entitled to seek relief from removal, if eligible, and to have attorneys defend against their deportation in the Immigration Court. People in removal proceedings have certain other rights, such as the right to present evidence or witnesses on their behalf, and the right to challenge evidence presented against them by Government attorneys. In addition, people who are in removal proceedings may seek release on bond or on conditional parole if they are detained for immigration violations.

Most people enter removal proceedings when they are arrested and detained in DHS custody or on a warrant issued by the Attorney General. If the District Director decides to hold detainees in custody, they may motion the Immigration Court for release while their cases are pending. Then Immigration Judges can either decide to continue to hold the detainees in custody or to release them on a bond or conditional parole.

Generally, most detainees in immigration custody who request a bond are released from DHS custody for the rest of their cases. If the Immigration Judge finds that the detainees will appear for future court hearings, will not be a threat to national security, and will not pose a danger to other people, property, or the community, they will be released. In some cases, however, the Government decides to contest an Immigration Judge’s order of release on bond by taking those cases to a higher court, i.e. the Board of Immigration Appeals (BIA).

When the Government takes a bond case to the BIA, it may seek to hold a person in immigration custody in two different ways. First, it can ask the BIA for an emergency stay which will prevent the Immigration Judge’s order for bond from going into effect. It is up to the BIA to decide whether to grant that motion. Second, government officials can notify the BIA of their intent to contest the custody order by filing a Notice of Service Intent to Appeal Custody Redetermination within one business day of the court order. If federal immigration officials file a second notice, the Judge’s order will be automatically stayed. If a stay is issued, a person may continue to be detained in custody until the BIA makes a decision on the bond. If an automatic stay is filed, a person can be detained in immigration custody for months, possibly years, until the BIA issues its decision.

US Department of Justice (USDOJ) has become concerned with the amount of time that people stay in immigration custody while appeals of custody orders are pending before the BIA. US DOJ are concerned that low-level DHS officials were filing for an automatic stay of any Immigration Judge bond orders and thereby holding thousands of people in immigration custody for indefinite periods without considering whether they were justified in contesting the bond order.

The new rules issued by the USDOJ require oversight over the bond process, and limit how long someone can remain in federal immigration custody while the BIA considers Immigration Judges’ decisions to release bond. Under the new rules and policies, a DHS attorney must seek the approval of a senior legal official at DHS for the filing of a case in the BIA. That senior legal official must certify that the Government’s arguments for further detention are supported by the evidence and by existing law. If no law supports the Government’s arguments for detention, a senior legal official must certify that the Government has a non-frivolous argument for the BIA to extend, modify, or reverse existing laws on detention. The certification by a senior legal official of DHS must be filed with the notice of appeal to the BIA.

If the automatic stay is granted, it can only stay in effect for ninety days. If ninety days passes after the filing of the Government’s case in the BIA, the automatic stay lapses, and the detainee can be released from federal immigration custody, even if the BIA has not decided whether release would be appropriate.

With the new limitations on the Government’s authority to hold people in custody, many more people can seek immigration relief, and seek assistance from attorneys in immigration court. Reeves & Associates encourages people in custody or released to consult with an attorney to learn their rights and to obtain relief from removal.