Monday, October 23, 2006 Reeves: Indefinite detention By Robert L. Reeves
ON Oct. 2, the federal government issued new rules for reviewing an order by immigration judges to release people arrested for immigration violations from the custody of the United States Department of Homeland Security (DHS).
These new rules limit the federal government’s ability to continue to hold those arrested for immigration violations while DHS officials contest an immigration judge’s decision to release that person on bond or on conditional parole.
The new rules affect people who are in removal proceedings. Removal proceedings are a series of hearings before an immigration judge to determine whether people charged with violating immigration law may be deported from the United States. People in removal proceedings are entitled to seek relief from removal, if eligible, and to have attorneys defend against their deportation in the immigration court.
Most people enter removal proceedings when they are arrested and detained in DHS custody or on a warrant issued by the Attorney General. If the district director decides to hold detainees in custody, they may motion the immigration court for release while their cases are pending. Immigration judges can either decide to continue to hold the detainees in custody or to release them on a bond or conditional parole.
Generally, most detainees in immigration custody who request a bond are released for the rest of their cases. If the immigration judge finds that the detainees will appear for future court hearings, will not be a threat to national security and will not pose a danger to other people, property, or the community, they will be released.
In some cases, however, the government decides to contest an immigration judge’s order of release on bond by taking the cases to a higher court, such as the Board of Immigration Appeals (BIA).
When the government takes a bond case to the BIA, it may seek to hold a person in immigration custody in two different ways.
First, it can ask the BIA for an emergency stay which will prevent the immigration judge’s order for bond from going into effect. It is up to the BIA to decide whether to grant that motion.
Second, government officials can notify the BIA of their intent to contest the custody order by filing a Notice of Service Intent to Appeal Custody Redetermination within one business day of the court order. If federal immigration officials file a second notice, the judge’s order will be automatically stayed.
If a stay is issued, a person may continue to be detained in custody until the BIA makes a decision on the bond. If an automatic stay is filed, a person can be detained in immigration custody for months, possibly years, until the BIA issues its decision.
The US Department of Justice (USDOJ) became concerned about the amount of time that people stay in immigration custody while appeals of custody orders are pending before the BIA. It is concerned that low-level DHS officials were filing for automatic stay of bond orders, thereby holding thousands of people in immigration custody indefinitely without considering whether they were justified in contesting the bond order.
The new rules issued by the USDOJ require oversight over the bond process, and limit how long someone can remain in federal immigration custody while the BIA considers decisions of immigration judges to release bond.
Under the new rules and policies, a DHS attorney must seek the approval of a senior legal official at DHS for the filing of a case in the BIA.
With the new limitations on the government’s authority to hold people in custody, many more people can seek immigration relief. Reeves and Associates encourages people to consult with an attorney.
