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Immigration Detention, Bond, and Habeas Litigation

AILA New . york. chapter Monthly meeting. Bond training, . january. 9, 2017, 6-7 p.m.. Questions to Answer. What is the government’s authority to arrest and detain . noncitizens. ?. Who is eligible for a bond hearing?.

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Immigration Detention, Bond, and Habeas Litigation

Presentation on theme: "Immigration Detention, Bond, and Habeas Litigation"— Presentation transcript:


Immigration Detention, Bond, and Habeas Litigation



chapter Monthly meeting

Bond training,


9, 2017, 6-7 p.m.Slide2

Questions to Answer

What is the government’s authority to arrest and detain



Who is eligible for a bond hearing?

How do bond submissions and hearings work, and how do I win


How do people get out of detention besides bond hearings?

How do habeas corpus petitions help detainees get out of custody?Slide3

Legal Bases for Immigration Detention

The “Big Three” Detention Statutes

INA § 236 – Detained pending removal proceedings

INA § 235 – “Arriving alien” detained pending decision on admission



means detained

during removal proceedings)

INA § 241 – Detained with final order of removal, pending removal from the United StatesSlide4

Bond Eligibility

and HearingsSlide5

Bond Eligibility

Discretionary Detention- INA

§ 236(a


An individual


be detained

OR released on a bond (bail) of at least $1,500

OR granted conditional parole (aka ROR)

ICE can do any of these 3 things AND the Immigration Judge can


ICE’s decision using these 3 options.



rarely sets

a bond amount themselves – it’s ROR or no bond.Slide6

Mandatory Detention

Certain individuals are subject to “mandatory detention,” meaning they do not even get a bond hearing.Slide7

Mandatory Detention

“Arriving Aliens” – INA § 235(b)

These are people deemed to be seeking admission at the border, but may be new arrivals OR long time



8 C.F.R



§ 1.2; 1001.1(q)

People with certain criminal convictions - INA § 236(c)

These individuals now become bond-eligible at 6 months of




gets the Respondent the right to a hearing, but not the right to a bond being set.




804 F. 3d

601 (2d Cir. 2015)

People with final removal orders – INA § 241

Unless they pass a “reasonable fear” interview and are in withholding-only





831 F.3d 59 (2d Cir. 2016)Slide8

Release from Detention

Parole/Discretionary Release

Arriving aliens can be “paroled”

ICE can release anyone they want in their discretion

Bond Hearings

Individuals detained under § 236(a) (i.e. in removal proceedings, and not in mandatory detention)




Detained pursuant to § 236(c) Slide9

Parole/Discretionary Release

Although arriving aliens are not eligible for bond, they can apply to ICE for humanitarian parole under INA § 212(d


It has nothing to do with criminal parole

The fiction is the person remains at the border and has not been legally “admitted” yet

ICE can release anyone in their discretion (although they have sometimes denied this


People with removal orders can be released on orders of


Bond Ineligibility Under § 236(c)

INA § 236(c)- the AG


take into custody:

Any individual who is


(has prior lawful admission)

under INA § 237 for


2 crimes involving moral turpitude (CIMT)

1 CIMT with sentence of 1 year or more

Aggravated Felony

Controlled Substance Offense

Firearms Offense

Other crimes, including espionage or terrorism



Bond Ineligibility Under § 236(c)

Any individual who is


(has not already been admitted)

under INA § 212 for


1 CIMT (and has no petty offense exception)

Controlled substance offense

Drug trafficking offense

2+ offenses with aggregate sentence of 5



National security



Bond Ineligibility Under § 236(c)

§ 236(c) applies even if the conviction is not charged on the


The mandatory detention statute is not retroactive

It only applies if the individual was released from criminal custody





) applies even if there is a gap between criminal and immigration detention (

Matter of


23 I&N Dec. 117 (BIA 2001)


Lora v.


Immigration Habeas Corpus Litigation

The people behind the case: Alex Lora and his son Alex, who was put in foster care when Mr. Lora was detained by ICE. Mr. Lora is a BDS NYIFUP client.Slide14

Litigating Bond Eligibility

If an individual is subject to mandatory detention, the IJ has no power to set bond

But you can challenge the inclusion of your client in a mandatory detention category

Matter of Joseph

, 22 I&N Dec. 799 (BIA 1999)

An IJ can set bond if it is “substantially unlikely” that DHS will establish the charge(s) that subjects the individual to mandatory detentionSlide15

Submitting a Parole/Release Request


parole/release requests to ICE Enforcement and Removal Operations that make

both legal

and humanitarian arguments

Requests are similar to

a bond

packet; include proof

of equities, low danger and flight risk, medical issues,

ID documents,


You may serve

courtesy copy to ICE counsel and/or Immigration


Follow up with the

client’s Deportation Officer for decision in writing

Denials are often boilerplate and very short

Often important when we then file a habeas corpus petition (more on this later


Bond Hearings

8 C.F.R. § 1003.19

A respondent asks for a bond hearing by filing a “Motion for Custody Redetermination” with the Immigration Court, or making an oral request on the record during a hearing.

Hearing usually scheduled a few weeks later. At



, the IJ will consider if the person is a flight risk or a danger to the community.


actual bond hearing might be 5 minutes to 2 hours (usually on the short end) and involve oral argument and sometimes testimony

ICE may or may not stipulate to a bond amount, often a high

one (


. Court Practice

Manual §

5.2(i), make attempt to get DHS position on bond before filing motion/before hearing)

Bond Proceedings are held in a

separate record

than the merits/removal record (meaning you may need to duplicate exhibits)Slide17

Bond Hearings Cont.

Matter of Guerra

, 24 I&N Dec. 37 (BIA 2006

) -

The burden of proof is on the respondent to show merits a grant of bond

Relevant factors:

Fixed address in US

Length of residence in US

Family in US

Employment history

Record of appearance in court and attempts to escape from authorities

Criminal record (number,


and seriousness of offenses)

Manner of entry and history of immigration violationsSlide18

Bond Hearings Cont.

Potential evidence in support of low bond

Letters of support from family, friends, or employers

Proof of eligibility for relief

(advisable to include the


Proof of date and manner of entry

Certificates of disposition for convictions

RAP sheet to show no bench warrants

Bills or records showing fixed address

Birth and marriage certificates

Proof of employment and tax history

Proof of rehabilitative programs or probation compliance

Evidence of limited ability to pay high bond (???)Slide19

Do Not Throw Away Your Shot!

You are only entitled to ONE bond hearing before the IJ

So don’t move for bond until you are ready and have the documents you want

Unless you can show materially changed circumstances – 8 C.F.R. § 1003.19(e) (not clear what that is, be creative)Slide20

Lora Hearings

Second Circuit held that immigrants subject to mandatory detention must be provided a bond hearing


six months of detention. 

Lora v. Shanahan

, 804 F. 3d 601 (2d Cir. 2015)

The standard is different from a normal bond hearing, where the

respondent bears


burden of proof



, the

respondent is

entitled to bond “


the government


by clear and convincing


that the alien poses a risk of flight or a risk of danger to the community.”Slide21

Guerra v. Shanahan (2d Cir. 2016)

Individuals in

withholding-only proceedings

had a prior removal order, but passed a ‘reasonable fear’ interview and are before the IJ to seek withholding of removal or CAT protection only

Second Circuit held in July 2016 that these individuals do NOT have final orders because they are applying for relief from removal and have the right to appeal their cases

Therefore they are actually detained under INA §236 and can move for bond

NOTE: a “


” bond hearing may actually look like either a 236(a) bond hearing or a Lora hearing depending on the client’s criminal record. This is a new and evolving issue. Slide22

Current Challenges in Regular and Lora Bond Hearings

High bond amounts

Detailed exploration of relief early in the case to find high flight risk

Harsh treatment of DUIs and other non-removable conduct

Reliance on criminal complaints and allegations that did not result in conviction

IJ and BIA


danger on a wide range of criminal conduct

IJs not holding government to high Lora standard

Therefore, it is important to build a strong record for appeal.

In extreme circumstances, file a habeas corpus petition in federal District Court.Slide23

Appealing Bond Decisions

Either party may appeal the IJ’s bond decision; the Notice of Appeal (E-26) must be filed within 30 days of the decision. (Include E-27, notice of appearance). There is no filing fee for an appeal of a bond decision.

If the IJ rendered an oral decision, a transcript is prepared; if summary order, the IJ must write a memo supporting her/his decision.

Briefing schedule is set – if the Respondent remains detained, simultaneous briefing is ordered; if released, consecutive briefing (appellant first) is ordered.

Regular standard of review rules apply:


of law and issues of discretion under

de novo

review. 8 C.F.R. § 1003.1(d)(3)(ii).



question of law and fact, the Board applies

de novo


Matter of V-K-

, 24 I&N Dec. 500, 501-02 (BIA 2008);

Matter of H-L-H- & Z-Y-Z-,

25 I&N Dec. 209, 212 (BIA 2010).


Board defers to an Immigration Judge’s findings of


unless clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i). Slide24

Habeas Corpus Litigation

“The government did not seriously dispute that Lora was neither a flight risk nor a danger to the community .” – Lora v. ShanahanSlide25

The Great Writ

28 U.S.C. § 2241

Can be used broadly for illegal civil detention

In the immigration context:

Client detained indefinitely without bond or procedural protections

Client should not be detained in the first place under the INA

Client is detained under the wrong statute

Anything about client’s detention or custody is in violation of the INA or the Constitution

Prudential exhaustion: This situation can’t be fixed by the agency or we shouldn’t have to wait for that Slide26

Immigration Habeas History 101 – Supreme Court


v. Davis

, 533 U.S. 678 (2001) – Noncitizens with final removal orders, detained under INA § 241, cannot be detained indefinitely if they can’t be physically deported

Clark v. Martinez

, 543 U.S. 371 (2005) –


applies to noncitizens who were inadmissible (Mariel Cubans) as well as those who were deportable (prior LPRs). INA § 241 has to mean the same thing for everyone.


v. Kim

(2005) – Facial challenge to mandatory detention statute, INA § 236(c), failed. The concept of no-bond detention during removal proceedings is not unconstitutional. Left open as-applied


Jennings v.




Circuit case argued before the Supreme Court in November and now in supplemental briefing

Covers bond eligibility after 6+ months detention for noncitizens detained under § 235(a) (arriving aliens)

and §

236(c) (criminal grounds). Also covers burden of proof.

Justices seemed split on reaching statutory or constitutional issues

Could lead to a nationwide rule that is good or bad and supersedes


, a remand that keeps


intact, or something we haven’t thought of

Decision probably May-JuneSlide28

Questions? Ideas?