The DHS makes the initial bond determination.[1]  Unless barred,[2] the noncitizen may then request that the IJ review that determination.[3]  The IJ may raise or lower bond,[4] and consider non-monetary conditions to bond.  The IJ’s decision may be based upon any information available,[5] including pending criminal charges.[6]  Although the IJ can take into consideration a number of factors in making a custody/bond determination,[7] the most important considerations are (1) danger to the community, and (2) flight risk.[8]  Appeal of an IJ’s bond decision to the BIA must be made within 30 days.[9]  Actual release of the immigrant is subject to the possibility of an automatic stay of release if the government appeals.[10]  See § 6.46, infra.

 

Regulations govern when DHS may release a noncitizen who is not subject to mandatory detention.[11]  “Any officer authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien [not subject to mandatory detention] provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.”[12]  Appeal of a DHS decision must be made within 10 days.[13]

[227] 8 C.F.R. § § 236.1, 1236.1.

[228] 8 C.F.R. § 1003.19(h)(2)(i).

[229] 8 C.F.R. § 1003.19.

[230] Matter of Spiliopoulos, 16 I. & N. Dec. 561 (BIA 1978).

[231] 8 C.F.R. § 1003.19(d).

[232] Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28, 2006) (no error for immigration judge to consider a pending criminal charge, and the evidence underlying it, in deciding whether a noncitizen would be a danger to the community if released from immigration custody).

[233] See Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976) (listing criteria for consideration).

[234] See, e.g., Matter of Drysdale, 20 I. & N. Dec. 815 (BIA 1994).

[235] 8 C.F.R. § § 236(d)(3)(i), 1236(d)(3)(i).

[236] 8 C.F.R. § 236.1(d).

[237] 8 C.F.R. § § 236.1(c)(2)-(c)(8).

[238] 8 C.F.R. § 236.1(c)(8).

[239] 8 C.F.R. § § 236(d)(3)(ii), 1236(d)(3)(ii).

BIA

DETENTION " BOND REDETERMINATION RULES NOT JURISDICATIONAL
Matter of Cerda Reyes, 26 I&N Dec. 528 (BIA 2015) (Immigration Judge erred in dismissing respondents bond determination for lack of jurisdiction when respondent was transferred to detention center outside Immigration Judges jurisdiction).

DETENTION - NO RIGHT TO RELEASE ON BOND FOR THOSE WHO POSE A DANGER TO PERSON OR PROPERTY IF RELEASED
Matter of Urena, 25 I. & N. Dec. 140 (BIA Nov. 17, 2009) (dangerous aliens are properly detained without bond pending the completion of proceedings to remove them from the United States, and only if an alien has established that he would not pose a danger to property or persons should an Immigration Judge decide the amount of bond necessary to ensure the aliens presence at proceedings to remove him from the United States).

DETENTION - NO RIGHT TO RELEASE ON BOND FOR THOSE WHO POSE A DANGER TO PERSON OR PROPERTY IF RELEASED
Matter of Urena, 25 I. & N. Dec. 140 (BIA Nov. 17, 2009) (where an Immigration Judge characterized an alien seeking release from custody as a "potential" danger to the community but ordered him released upon the posting of a bond amount, the record was remanded for the Immigration Judge to clarify whether the alien met his burden of proving that his release on bond would not pose a danger to property or persons).

DETENTION - BOND REDETERMINATION - ANKLE BRACELET IS CUSTODY SUFFICIENT TO ALLOW IJ TO REDETERMINE CONDITIONS OF RELEASE
Matter of Aguilar-Aquino, 24 I. & N. Dec. 747 (BIA Mar. 6, 2009) (release on ankle monitor is not a form of custody sufficiently restrictive to constitute "custody" within the meaning of INA 236 and 8 CFR 1236.1(d), so respondent had already been "released from custody," and the immigration court lacked jurisdiction to redetermine the conditions of release determined in the first instance by the District Director).

DETENTION - FACTORS TO CONSIDER
Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (non-exhaustive factors an Immigration Judge may consider in making a determination under INA 236(a) include whether the alien has a fixed address, his or her length of residence, family ties, employment history, record of appearance at court proceedings, criminal record - including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses, history of immigration violations, attempts to flee prosecution, and manner of entry into the United States).

Second Circuit

NON-MANDATORY DETENTION - CIRCUIT COURT JURISDICTION TO GRANT BAIL
Elkimya v. Department of Homeland Sec., 484 F.3d 151(2d Cir. Apr. 12, 2007) (court has jurisdiction to consider motion for bail pending resolution of appeal of BIA decision to the circuit court), citing Mapp v. Reno, 241 F.3d 221 (2d Cir.2001).

Third Circuit

DETENTION"RIGHT TO INDIVIDUALIZED BOND HEARING
Leslie v. Attorney General, 2012 WL 898614 (3d Cir. Mar. 19, 2012) (unpublished) (noncitizen was entitled to an individualized bond hearing, to determine whether continued immigration detention was necessary, where the detention was "pre-removal" under 8 U.S.C. 1226, rather than "post-removal" under 8 U.S.C. 1331, and thus could not exceed a reasonable length of time).

Fifth Circuit

DETENTION - CONDITIONS OF RELEASE - MISLEADING STATEMENTS TO CONSULATE MADE WITH INTENT TO INTERFERE WITH REMOVAL
United States v. Jang, 574 F.3d 263 (5th Cir. Jun. 30, 2009) (misleading answers to questions by Korean consulate were reasonably considered an attempt to hinder departure from United States, resulting in violation of conditions of release).

DETENTION - INDEFINITE DETENTION - DANGER TO THE COMMUNITY - MENTAL ILLNESS
Tran v. Mukasey, __ F.3d __, 2008 WL 216409 (5th Cir. Jan. 28, 2008) (8 U.S.C. 1231(a)(6) does not authorize the continued and potentially indefinite detention of a removable noncitizen based on a determination that the noncitizen's mental illness renders him a dangerous risk to the community).

Seventh Circuit

DETENTION - RIGHT AGAINST EXCESSIVE BAIL DOES NOT APPLY TO CIVIL IMMIGRATION PROCEEDINGS
Bolante v. Keisler, 506 F.3d 618 (7th Cir. Oct. 31, 2007) (the right not to be subjected to excessive bail, conferred by the Eighth Amendment and implemented, so far as federal criminal defendants are concerned, in the Bail Reform Act. 18 U.S.C. 3142; see United States v. Salerno, 481 U.S. 739, 753-54 (1987), applies only in criminal cases, and the Supreme Court has never held that persons detained in civil proceedings, such as removal proceedings, are entitled to this right).

Ninth Circuit

DETENTION " IMMIGRATION DETENTION " SETTING IMMIGRATION BOND REQUIRES CONSIDERATION OF ABILITY TO PAY
Hernandez v. Sessions, 872 F.3d 976 (9th Cir. Oct. 2, 2017) (immigration officials must consider the financial ability of a foreign national to obtain a bond and alternative conditions of release).

DETENTION - BOND HEARING - RIGHT TO
Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942, 948 (9th Cir. 2008) (alien detained in immigration custody, whose order of removal the Board has affirmed, is entitled to seek a bond hearing under INA 236(a), 8 U.S.C. 1226(a), until he or she enters the removal period after the Ninth Circuit has rejected his or her final petition for review, and the time to seek such review has expired); see Prieto-Romero v. Clark, 534 F.3d 1053. 1060 (9th Cir. 2008).

DETENTION - PAROLE
Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. Sept. 4, 2007) (noncitizens who are apprehended within the United States after illegal re-entry, who are detained by the DHS, and who are thereafter "conditional[ly] parole[d]," under INA 236(a)(2)(B); 8 U.S.C. 1226(a)(2)(B) are not "paroled into the United States" for purposes of being eligible for adjustment of status pursuant to 8 U.S.C. 1255(a)).

Note: The court distinguishes between two types of "parole" - humanitarian parole covered by INA 212(d)(5) and "conditional parole" on release from DHS detention, under INA 236(a). The court notes that INA 236(a)(2)(B) "focuses primarily on aliens who are present in the United States but were not lawfully admitted or who were lawfully admitted but have become subject to removal." A clearer way to express this might be that INA 236(a) relates to immigration detention, and thus 236(a)(2)(B) relates to release from detention on parole, just as a felon would be released from prison on parole.

While "parole" as described under INA 212(d)(5) may be spelled the same, and pronounced the same, it describes a different concept - i.e. being allowed to physically enter the United States without being officially "admitted." Thus persons who are granted "deferred inspection" fall within INA 212(d)(5). See 8 C.F.R. 235.2(c).

Other

REMOVAL PROCEEDINGS - RIGHT TO ID DOCUMENTS
Torres Memo dated 07/14/2006, last paragraph on the second page, indicates that "non-detained LPRs in removal proceedings are legally entitled to basic forms of identification such as driver's licenses and social security cards ..." Prior paragraph states temp I-551 card to be given. http://www.aila.org/Content/default.aspx?docid=23514 Thanks to Suresh Gulaya