Aggravated Felonies

 (B)  Automatic Stay Regulations.  Even if a bond is issued, the DHS can invoke an automatic stay of any release order by filing an appeal.  New regulations have been issued amending 8 C.F.R. § 1003.19(i) and expanding the DHS authority to obtain an automatic stay of the immigration judge’s order releasing a respondent from detention.  The new regulations provide, in cases where the District Director determined a noncitizen should not be released on bond or where bond is set higher than $10,000 and the IJ authorizes release of the noncitizen, on bond or otherwise, that the DHS can obtain a temporary automatic stay of release by filing a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one day of the issuance of the IJ’s order.  On filing, release is automatically stayed until the BIA decision.  If the DHS fails to file an appeal within 10 days of the IJ’s decision, as required under 8 C.F.R. § 1003.38, the automatic stay expires.  If the BIA authorizes release, that order is stayed automatically for five business days.  Within that period the DHS Commissioner can certify the Board’s custody order to the AG, and then release is further stayed until the AG makes a decision.  At least two cases have held that the automatic stay regulation violates due process.[126]

[126] Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D.Cal. 2004) (the automatic stay at 8 C.F.R. § 1003.19(i)(2) is ultra vires to the statute, and facially violates substantive and procedural due process); Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. 2003) (8 C.F.R. § 1003.19(i)(2) violates Fifth Amendment substantive right to bail and due process by allowing government to maintain custody without showing likelihood of success on appeal or harm to government), distinguishing Demore v. Kim, 538 U.S. 510 (2003) (which dealt with INA § 236(c), 8 U.S.C. § 1226(c), not INA § 236(a), 8 U.S.C. § 1226(a), or 8 C.F.R. § 1003.19(i)(2)).