Criminal Defense of Immigrants

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Judges do not have jurisdiction to review the bond decisions of the DHS in these cases.[4]  At least one court, in an unpublished opinion, has found that this regulation cannot be applied to a noncitizen granted advance parole, where the noncitizen was not properly notified that accepting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 Dec. 12, 2005) (unpublished).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).