Noncitizens subject to inadmissibility [including EWIs] are generally subject to the general detention provisions, and may or may not be subject to mandatory detention under INA § 236(c).[1] 

 

“Arriving aliens”[2] not subject to “expedited removal” under INA § 235[3]  or mandatory detention under INA § 236 may be released on bond.  However, Immigration Judges do not have jurisdiction to review the bond decisions of the DHS in these cases.[4]  At least one court, in an unpublished opinion, has found that this regulation cannot be applied to a noncitizen granted advance parole, where the noncitizen was not properly notified that accepting advance parole would result in denial of bond without possibility of a hearing before an Immigration Judge.[5]  An arriving alien may still request release on parole.[6]

 

Noncitizens subject to “expedited removal” are generally subject to mandatory detention.[7]  However, illegal entrants who are not considered “arriving aliens,” but who are initially subject to “expedited removal,” may request a bond hearing before an immigration judge once their cases are transferred to the immigration courts upon a finding of credible fear of persecution in their home country.[8]

 

[189] INA § 236(c), 8 U.S.C. § 1226(c).

[190] See § 15.3, infra.

[191] INA § 275, 8 U.S.C. § 1225.  See § 15.22, infra.

[192] 8 C.F.R. § § 1003.19(h)(2)(i)(B), 236.1(c)(11).  See also Matter of Collado-Munoz, 21 I. & N. Dec. 1061 (BIA 1997) (LPR “arriving alien”).

[193] Shahwan v. Certoff, No. C-05-4218 MMC (N.D. Cal. Dec. 12, 2005) (unpublished).

[194] 8 C.F.R. § 212.5.  See § 15.14, supra.

[195] INA § 235(b)(1)(B)(iii)(IV), 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)

[196] See Matter of XK, 23 I. & N. Dec. 731 (BIA 2005).

Lower Courts of Second Circuit

DETENTION " IMMIGRATION DETENTION " ARRIVING ALIENS " NO ENTITLEMENT TO AN INDIVIDUALIZED BOND HEARING AFTER SIX MONTHS
Cardona v. Nalls-Castillo, ___ F.Supp.3d ___, 2016 WL 1553430 (S.D.N.Y. Apr. 14, 2016) (8 U.S.C. 1225(b) authorizes detention of certain arriving aliens, including those who have been convicted of enumerated offenses, during the pendency of their removal proceedings, but does not provide for a bond hearing before an immigration judge).