Crimes of Moral Turpitude

(C)  Detention of “Arriving Aliens.”  A topic drawing greater attention is bond and detention for “arriving aliens.”  The regulations divest the Immigration Judges of jurisdiction over bond applications by arriving aliens.[149]  However, at least one court 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 hearing.[150]

This group of noncitizens is not subject to INA § 236(c).  That section applies only to those who have been “arrested on a warrant” issued by the Attorney General or Department of Homeland Security.  Arriving aliens are only “detained” under INA § 235.  Therefore, adverse decisions, such as Demore v. Kim,[151] arguably do not apply to detention issues involving arriving aliens.

            The Department of Homeland Security argues that its regulation[152] denies the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] “[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act.” The term “arriving alien” is not defined in the Immigration and Nationality Act [INA], but is defined by regulation:

The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.[153]

The definition of “arriving alien” therefore depends upon prior definitions of “admission” and “applicant for admission.”[154]  The statute states that a legal permanent resident shall not be regarded as seeking admission unless one or more of six conditions is met and sets up necessary conditions for being an “applicant for admission,” and thus an “arriving alien.”[155]  The statute places the burden of proof on the Government to establish that the noncitizen is an arriving alien.

[149] 8 C.F.R. § § 1003.19(h)(2)(i)(B), 236.1(c)(11).

[150] Shahwan v. Certoff, (N.D. Cal. Dec. 12, 2005)(unreported).

[151] Demore v. Kim, 538 U.S. 510 (2003).

[152] 8 C.F.R. § 1003.19(h).

[153] 8 C.F.R. § 1001.1(q).

[154] INA § § 101(a)(4), (a)(13), 8 U.S.C. § § 1101(a)(4), (a)(13).

[155] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C); see 8 C.F.R. § 1001.1(9).  Thanks to Rick Coshnear.