The process of representing an alien in the removal context most often commences when the alien is arrested. The arrest can occur at a port of entry or it can occur after the alien is already in the United States. For an attorney retained to try to accomplish legalizing or re-legalizing the arrested alien's presence in the United States, the first and most pressing task of the immigration attorney is dealing with the issue of whether the alien can be released on bond and effecting the release.
THE LEGAL BASIS FOR ARREST AND DETENTION
The government's authority to arrest and detain aliens is found in the Immigration and Nationality Act. There are two contexts for arrest, at the border and inside the United States.
ARREST AT THE BORDER
The statutory authority for an arrest at the border is found at INA § 235(b)(2)(A), which states:
In general. Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240 [8 USC §1229a].
At this stage of the process, for aliens intent to eventually be legalized in the United States, detention is desirable, as the alternative is being ordered removed by an immigration officer under the expedited removal procedures at INA § 235(b)(1). Thus, in many cases, the first hurdle to the goal of legalizing the client's status in the United States is to have the client be detained rather than expeditiously removed. The most typical examples of clients who need to be detained before they can hope to live freely in the United States are long-term residents who seek to prove they are eligible for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent
* Jonathan D. Montag practices immigration law at the Law Offices of Jan Joseph Bejar A PLC in San Diego, California. He graduated the University of Pennsylvania with a B.A. in 1982 and received his J.D. from the University of San Diego in 1994. He is presently the Vice Chapter Chair of the San Diego AILA Chapter. This article appeared in AILA's 12th Annual California Chapters Conference Handbook published in October 1999. The handbook was edited by Mr. Montag.
Residents and aliens who are seeking asylum. According to INA § 235(b)(1), an alien is subject to expedited removal unless he is a lawful permanent resident who lacks a visa or has lived in the United States for two years before his apprehension. In addition, if a person demonstrates a well-founded fear of persecution through a procedure known as a "credible fear interview," discussed at INA § 235(b)(1)(B), the fate of expedited removal can be avoided. No other equities can automatically void the result. So, should a person with a United States citizen spouse and several United States citizen children arrive at the Port of Entry and not have a fear of persecution, not be a lawful permanent resident, and not have resided in the United States for a period in excess of the most recent two years, he faces the prospect of expedited removal. It is possible that instead of being removed, he could be permitted to withdraw his application for admission, but this most often will not advance the goal of being able legalize one's status in the United States, though if the only alternative is an expedited removal order, permission to withdraw the application is the better alternative. A person being subjected to expedited removal is, under normal circumstances, ineligible for a bond.
One other wrinkle in the issue of detention andbond is INA § 235(b)(2)(C), which states that an arriving alien who is not clearly and beyond a doubt entitled to be admitted and who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States may be returned to that territory pending removal proceedings. Application of this provision by the INS seems directionless. Some aliens are returned to the contiguous territory for hearing, others are detained in detention facilities and others are paroled into the United States. Further, invocation of this provision can occur during the course of removal proceedings. It is not unusual for an alien, paroled into the United States for a proceeding, after completion of the individual hearing before the immigration judge, upon reporting to INS inspectors to have their parole extended, to be instead taken into custody and compelled to wait out their BIA appeal in the contiguous territory, i.e., Canada or Mexico. As the BIA can take years to decide these cases, the alien is effectively deported.
While this provision has its benefits for aliens whom the INS will not release and do not want to languish in detention while their cases or pending and thus removing the coercive effect of detention on the alien's willingness to appeal adverse decisions by the INS (regarding parole) and immigration court, it permits the INS effectively to deport many aliens with all the commensurate hardships that this entails before the alien can even make his case for admission. It is worthy of mention regarding hardship that both Canada and Mexico are very large countries and returning an alien to the other side of the border is not by any means like sending him home. Further, some district courts have used the fact that an arriving alien can wait in Canada or Mexico while his or her removal case is pending as a basis for finding that mandatory detention provisions are not violative of aliens' liberty interest. This finding is based on the reasoning in Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), that "[A]n alien  can withdraw his defense of the removal proceeding and return to his native land, thus ending his detention immediately. He has the keys in his pocket." The reasoning is that if an alien can simply request to be returned to Canada or Mexico, and assuming the request is acceded to, then the alien is not subject to detention and thus his right to liberty is not injured. Of course this reasoning can be applied to almost any infringement of a right to an alien, but as of yet courts have not applied it in other spheres than the liberty interest.
Finally, the arbitrary application of this provision puts aliens and their attorneys in a terrible bind. Does an arriving alien whose removal proceedings are pending and whose parole is expiring go to the inspectors for a new I-94 and risk being taken into custody and returned to Canada and Mexico? Should an attorney advise that an alien request the extension of parole? The INS needs to clarify its position on this issue so aliens can more comfortably comply with parole requirements.
Once the alien is detained and has avoided expedited removal, efforts begin to effect the alien's release. These overtures are made to the Immigration and Naturalization Service, as the immigration courts do not have jurisdiction regarding arriving aliens. 8 C.F.R. § 236.1(c)(11). At this point the alien is seeking parole into the United States, parole being a legal fiction wherein an alien is physically inside the United States, though he has not been admitted to the country. Regardless of how long the alien is in this parole status, his situation does not improve from that of a person applying for admission to the United States, with the reduced procedural and constitutional protections this implies to an alien. Thus, it was not uncommon that an alien who is alawful permanent resident who was paroled into the United States for an exclusion hearing and remained in parole status for many years while his case was pending before the Immigration Court and Board of Immigration Appeals, upon seeking judicial review of an order of exclusion, was found to lack standing to seek relief in a district court, as Congress has plenary power over the power to admit aliens into the United States, and consequently the administrative decisions that Congress delegates to the INS and EOIR are not subject to review. Only when an alien accomplished entry did he begin to acquire due process rights, such as the right to judicial review of decisions relating to him. One cannot say categorically that judicial review in exclusion cases has been futile, as Courts have reviewed, based on statutory authorization for review, whether there was a facially legitimate and bona fide reason for an alien's exclusion. The plenary power doctrine is relied on by Courts unwilling to review a case and circumvented by courts more willing to invoke the power of the judiciary to assist an alien. This fundamental question of jurisdiction to review the cases of aliens in exclusion proceedings is one that has been unclear. After the judicial review provisions of the AEDPA and the IIRIRA in 1996, the issue, already confused, has become even more complicated with few clear answers regarding jurisdiction. As a practical matter, after the passage of the AEDPA and the IIRIRA, practitioners are advised to file their suits in a timely fashion in all available forums until the issues of judicial review become are settled, if they ever do become settled.
When seeking release, the INS's first concern is whether it believes it can release the alien. Governing the INS's decision is INA § 236(c)(1), which states that the Attorney General shall take into custody any alien who (A) is inadmissible by reason of having committed any offense covered in section 212(a)(2). Also regarding aliens arriving at the border, INA § 236(d) requires detention for aliens inadmissible under section INA § 212(a)(3)(B). Should the INS find that a person is subject to detention under these sections, conditions for release are found at INA § 236(c)(2). This section restricts release to those involved in the witness protection program, making virtually all aliens covered in 236(c) subject to mandatory detention.
This does not mean that all aliens subject to removal pursuant to INA § 212(a)(2) cannot be released on bond. Firstly, the INA § 236(c)(1)(A) requires that an offense be "committed." Implicit in the term "committed" according to what appears to be the INS's interpretation of the provision is that there be a crime and a criminal conviction for the crime. Thus, those portions of INA § 212(a)(2) that do not require a conviction do not at present subject an alien to mandatory detention. The most common charge that does not require a conviction is INA § 212(a)(2)(C), wherein a person can be found inadmissible if "...the immigration officer knows or has reason to believe is or has been an illicit trafficker in any controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance...." This most often occurs when someone is in a vehicle crossing into the United States in which a controlled substance is found. Regardless of whether or not the alien in the car is prosecuted for a controlled substance offense, the INS will often institute proceedings to remove the alien. If there is no prosecution and conviction, the alien does not appear to be subject to mandatory detention.
Other INA § 212(a)(2) crimes that do not require a conviction are:
212(a)(2)(A)(i), admitting committing acts that constitute the essential elements of a crime of moral turpitude or a controlled substanceviolation;
212(a)(2)(D) (relating to prostitution);
212(a)(2)(E) (relating to those who asserted immunity); and
INA § 212(a)(2)(G) (relating to government officials engaging in religious persecution).
A further exception arises from the words of 236(c)(1), which mandates taking an alien into custody "when the alien is released." If an alien is paroled into the United States or has entered the United States without inspection and is subject to 212(a)(2) grounds of inadmissibility based on a conviction, he is subject to detention when released based on the criminal confinement for which he is excludable.
The interpretation of the "when the alien is released" language became of focus of a substantial amount of litigation in the federal district courts when the mandatory detention provisions at INA § 236 came into force on October 9, 1998. Aliens detained by the INS at home or at work or otherwise while free from custody, often having completed their sentences years earlier, insisted that the "when the alien is released" language meant that mandatory detention applied only to aliens who were completed their sentences before October 8, 1999, the "when the alien released" defining the moment from when alien must be detained under the mandatory provision. Aliens also argued that mandatory detention was unconstitutional as an infringement of their substantive due process right to liberty and their procedural due process right to a hearing regarding their right to a hearing to determine whether they could be released.
The INS's position was that the "when the alien is released" language modified the command that the Attorney General "shall take into custody any alien" by specifying that it be done when the alien is released. As, as noted, there are categories of aliens who are subject to detention without having been convicted or detained, interpreting the "when the alien is released" to be descriptive of the type of alien to be detained and when the detention must occur, the INS asserted would make these categories of non-convicted aliens surplusage in the statute. The INS position was supported by the Board of Immigration Appeals in Matter of Noble, Int. Dec. 3301 (BIA 1997), which interpreted similar language in the transitional rules at IIRIRA § 303(b)(3)(A).
Detained aliens across the United States who filed petitions for writs of habeas corpus were successful in having district courts find that the "when the alien is released" language meant that being arrested by the INS after release from criminal custody did not require imposition of the mandatory detention policy and ordered bond hearings for such aliens. Observing this tide of opinions against it, the INS changed its legal interpretation of mandatory detention. In a July 12, 1999, press release, the INS stated, "[t]he change is a result of several federal cases nation-wide which have successfully challenged the government's reading of the mandatory detention requirements of IIRAIRA." The INS's reading is now that "when the alien is released: refers "only to aliens who had completed their criminal sentences on or after October 9, 1998." INS News Release, "INS Adopts New Legal Interpretation on Mandatory Detention," July 12, 1999.
The INS policy and many district court decisions have created a hybrid position between the Board's position that "when the alien is released" describes the alien and the position most-favorable to the alien, that the term means that he must be detained immediately after criminal detention. The hybrid view is that the detention by the INS which will subject an alien to mandatory detention can occur at any time after the mandatory detention law came into effect but affects only aliens who have beenreleased on or after October 9, 1998. Thus, while aliens arrested by the INS while at home after completing their sentences will be subject to mandatory detention, only aliens who completed their sentences after October 8, 1998, will be so encumbered. Of course, with the passage of time, more and more aliens will have committed their crimes after October 8, 1998, and fewer and fewer aliens with pre-October 9, 1998, convictions will have evaded INS attention. Thus, as time goes on, the great mandatory detention victory in the district courts and with the INS will become more and more pyrrhic.
Once an alien is in detention, has avoided expedited removal, and is not subject to mandatory detention, the issue of release becomes the next concern. As the alien is an "arriving alien," as noted, release can be granted only by the INS. 8 C.F.R. 236.1(c)(11). The INS's concerns are whether the alien poses a threat to public safety and whether the alien is a flight risk. An attorney should present a packet to the INS requesting release and documenting that the INS should not find that the alien is a danger to the community or a flight risk. It is prudent to include documentation to describe the human element of the alien, as this can go a long way in showing that the alien is not a danger. Thus, documentation showing that the alien has a family, supports his or her family economically and emotionally, is involved in the schooling of his or her children, cares for ill relatives, attends religious services, pays taxes, and is a good friend and neighbor can help effect release. In addition, documentation showing the relatively minor nature of the conviction, that probation was completed successfully, that the crime, if crimes were committed, occurred a long time ago, and the alien has since rehabilitated, and that the crime was an aberration, also will help demonstrate that the alien is not a danger. In addition to documentation such as copies of marriage and birth certificates, family members' immigration documents, letters from family, friends, doctors, probation officers, and clergymen will help the client.
As far as the issue of flight risk, if relief is available to the client, this is strong evidence that the alien has every interest in attending his hearing. Evidence that shows strong roots to the community and close family ties and interdependence is also probative of a low flight risk. A lack of history of failing to appear and of absconding should also be pointed out. The INS should also be reminded that any residual concerns regarding a flight risk can be cured through the setting of a reasonable bond. Some INS offices look for an I-134 Affidavit of Support as part of the release request packet, particularly in the case of releasing aliens seeking asylum who are new to the United States. If you are unsure exactly what the INS in the place your client is being held is looking for before they will release the alien, it is wise to consult with practitioners in your area and with the INS officer in charge of the case to get an understanding what the INS in your area is looking for.
To create the release packet, the practitioner needs to get as good an idea of the favorable equities of the client and try to convey that nature to the INS. It is most useful to find out which INS official is deciding the case and provide that official with the documentation. It is also of paramount importance here, as in all areas of practice, to be honest. This pre-court, informal stage of representation is in many ways the most crucial for the alien's case. Should a bond be set, the client is well-positioned to help prepare his case and, should he lose in Immigration Court, to appeal the court's decision. He is also able to demonstrate his good character and rehabilitation. Not insignificantly, he is also able to earn a living to pay his legal bill. Thus, any attempts to lie about the client or to deny that he or she has done the things for which he or she is convicted, which might lead to a denial of release, will significantly hinder the representation of the client.
ARREST AFTER ADMISSION
Under previous sets of immigration laws, there were important differences in an alien's rights and in the procedures necessary to protect them depending on whether the alien was one who accomplished an "entry" into the United States and was subject to deportation proceedings, and whether the alien had not, was arrested at the border, and was subject to exclusion proceedings. Several changes in the law have blurred the distinctions. Firstly, the term, "entry" was virtually eliminated from the Immigration and Nationality Act, and in its place a new term and different concept, "admission." Second, there are no longer deportation and exclusion proceedings, but instead, removal proceedings. Finally, the channels for judicial review differed depending on whether one had or had not accomplished an "entry." The IIRIRA has changed the judicial review regime and, to a great extent, attempted to eliminate it. These judicial review provisions are under challenge in the federal courts.
This is not to say that important distinctions do not exist. Most notably, while there are no longer separate exclusion and deportation hearings, there are still separate inadmissibility and deportation grounds. The grounds of inadmissibility are found at INA § 212 and the grounds of deportability are found at INA § 237. Also significant in the bond context, is that different bond procedures exist for aliens who are not just arriving to the United States.
The first issue of important distinction, the different grounds of inadmissibility and deportability, creates different results for an alien when determining whether he is subject to the mandatory detention provision of INA § 236(c)(1). While mandatory detention applies to all aliens with convictions seeking admission whose convictions are found in INA § 212(a)(2), mandatory detention only applies to certain criminal offences found in INA § 237. INA § 237 offenses found in the mandatory detention provision at INA § 236(c)(1) include the following:
1. 237(a)(2)(A)(ii) -- two or more crimes involving moral turpitude;
2. 237(a)(2)(iii) -- aggravated felony;
3. 237(a)(2)(B) -- controlled substance conviction;
4. 237(a)(2)(C) -- firearms offenses;
5. 237(a)(2)D) -- a list of obscure crimes such as espionage, treason and sedition, departure laws, threatening the President, going to war against a friendly nation, importing aliens for immoral purposes;
6. 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year-- committing a crime of moral turpitude within five years of admission and being sentenced to a year or more;
7. 237(a)(4)(B) -- espionage, sabotage, criminal activity that endangers public safety or national security, or overthrowing the United States by force or violence or otherwise unlawfully.
It is of crucial importance to determine whether the crime of the alien whom you represent is on this list. There are several significant crimes that are not on this list. Most significant is domestic violence, stalking, and child abuse found at INA § 237(a)(2)(E). These crimes, while sometimes more egregious than, for example, simple possession of a controlled substance, do not require mandatory detention while simple possession does. High speed flight is not on the list, INA § 237(a)(2)(A)(iv), nor is one crime of moral turpitude within five years of admission when a sentence of less than one year was imposed.
Further, the age-old distinctions between inadmissibility grounds and deportability grounds that bedeviled aliens when seeking the former INA § 212(c) relief, reappear in this context. For example, while an alien seeking admission to the United States may be an aggravated felon, which is a ground for mandatory detention at INA § 236(c)(1)(B), aggregated felony, INA § 237(a)(2)(iii), is not a ground of inadmissibility. Thus, it is possible that an alien deemed an alien applying for admission, while an aggravated felon, would not be subject to mandatory detention.
Similarly, an alien deemed one applying for admission who is convicted of a firearms offense may be subject to mandatory detention pursuant to INA § 237(a)(2)(C), but because he will be charged under INA § 212, and because firearms offenses are not grounds of inadmissibility, the alien would not be subject to mandatory detention.
Perhaps an example is useful. Your client entered the United States five years ago without inspection. He remains undocumented. He was convicted of being an illegal alien in possession of a handgun, and sentenced under 18 U.S.C. 922(g)(5). This conviction is arguably a firearms offense pursuant to INA § 237(a)(2)(C) and an aggravated felony pursuant to INA § 101(a)(43)(E)(ii). Both of these sections mandate mandatory detention. However, because your client entered without inspection, he did not undergo inspection and authorization by an immigration officer and pursuant to INA § 101(a)(13) has not been admitted. As such he cannot be placed in proceedings governed by the INA § 237 grounds because he is not "in and admitted to the United States" as required at INA § 237(a). Consequently, he is charged under INA § 212(a) grounds. There is no criminal ground at INA § 212(a)(2) that corresponds to the firearms offense ground or the aggravated felony ground. Thus he is eligible for release on bond. Should the INS not accept this argument, an Immigration Judge should.
The issue of having the Immigration Court involved in the detention and release issue is the other significant remnant of the old deportation/exclusion scheme affecting detention and bond after the passage of the IIRIRA. Under the old scheme, an alien in exclusion proceedings, subject to INA § 212 grounds of inadmissibility [formerly, exclusion grounds], could not seek a bond determination from an Immigration Judge. While the alien in the example of the weapon-possessing alien is subject to INA § 212 grounds of inadmissibility, because he is not an "arriving alien," defined at 8 C.F.R. § 1.1(q), the immigration court has jurisdiction to consider bond issues. Thus, even though the old dichotomy between deportation and exclusion proceedings based on whether an alien accomplished an entry or not, a dichotomy exists not only between those who have been admitted and those who have not and between those who are arriving aliens and those who are not.
The practical affect of the dichotomy is that an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole. Matter of Oseiwusu, I. & N. Interim Dec. No. 3344 (BIA 1998); 8 C.F.R. § 212.5(b). In the case of an alien who is not an arriving alien, the immigration judge does have jurisdiction to consider bond issues. 8 C.F.R. § 3.19. Traditionally, the process of seeking bond took on a predictable process. The INS, upon taking an alien into custody, would set a bond. Often, the bond was relatively high or no bond was set. The alien would then request a bond redetermination hearing and the immigration judge would either reduce the bond, usually quite dramatically, or if no bond was set, would set one. As one commentator observed, "The result is a circular game in which the INS employees set higher than necessary amounts because they know theamounts they set will be reduced by immigration judges. The IJ's in turn reduce the amounts because they know that the INS sets artificially high bonds in the expectation that the IJ's will reduce them."
There have been many changes in the laws regarding detention that have considerably changes this pas de deux. Firstly, the mandatory detention rules as well as the fact that the lack of relief for many aliens because of the repeal of INA § 212(c) and INA § 245(i), and the expansion of the number of offenses that are aggravated felonies making many more aliens ineligible for relief, means that there are fewer and fewer aliens who can even have a bond set. Further, the rules of the INS-IJ game were changed with the INS being given a new power, the power to stay the immigration judge's bond order. Pursuant to 8 C.F.R. § 3.19(i)(2), which came in effect June 18, 1998, the INS could stay an immigration judge's order in any case where the INS had originally determined that there would be no bond or set a bond of $10,000 or higher. Thus, the INS could set a bond of $10,000 or deny a bond, and the immigration judge's bond decision, if the decision was to lower a bond to below $10,000 or to set a bond when none was previously set, was subject to review. In the meantime, the alien remains in confinement.
Purely anecdotally, this automatic stay provision has had a chilling effect on bond reductions. While in the past, immigration judge's would make dramatic decreases in bond amounts during a bond redetermination hearing, after the stay provision came into effect, bond amounts became much higher and often would not be redetermined at all. It appeared that immigration judges, who earlier made determinations about danger to the community and flight risk in a matter of minutes were reticent to have their decisions routinely reviewed. From the alien's perspective, it became more beneficial to pay a dramatically high bond than to sit in detention while the bond decision was being appealed. There also appears to be an element of the immigration judges collectively taking the position that as the mood of Congress has shifted toward a stricter regime of mandatory detention, limited relief, and a preference for streamlined removal proceedings and deportation, setting low bonds was contrary to the preference of the people, as manifested through Congress.
Conversely, while the immigration courts have generally become tougher regarding the setting of bonds, the INS struggles with other forces that have made it marginally less tough. As the mandatory detention statute came into full effect in October 1998, the burden on the INS to detain all the aliens it is mandated to detain has greatly increased. Constantly in search of "bed space," the INS is quicker to set reasonable bonds to those eligible to free up bed space. Thus, as of late a paradoxical situation has emerged wherein an alien will get a fairer shake seeking a bond from the INS than from the immigration court.
Another paradox has emerged after the INS announced its policy on July 12, 1999, regarding its interpretation of "when the alien is released" language in INA § 236(c)(1). As a result of the new policy, many long-term detainees taken into custody before October 1998 and not released because of the mandatory detention law became eligible for release. Some aliens for whom the INS did not set bonds and aliens who felt that the bond amounts the INS set were too high took the usual recourse of seeking a bond redetermination hearing. To their surprise, the immigration judges were not obliged to follow the INS policy and most felt bound either to the BIA's decision in Matter of Noble, supra., or to its reasoning. The immigration judges either denied bond based on this interpretation of "when the alien is released" or cautioned aliens and their attorneysthat it would not be in the alien's best interest to ask for a bond hearing. Yet again, the tables had turned and the INS was making a fairer deal than the immigration court.
Despite the hardened attitude of the immigration courts and the infrequency that a bond can be set, there is still an important role the immigration judge plays in the bond process. This is when the basis for removal the INS is pursuing is wrong or the basis for finding the alien subject to mandatory detention is wrong. The immigration judge, in such situations, can find that as the bases for removal and detention cannot be proved, the alien is not properly included in the mandatory detention category. 8 C.F.R. § 3.19(h)(2)(ii). While the regulation relates to determining whether the alien fits into a mandatory detention category and not determining the issue of removability, if the alien is not removable as charged, then ipso facto, he cannot be subject to the mandatory detention provision. The immigration judge's decision regarding removability will also serve to determine whether the alien is subject to mandatory detention. Matter of Joseph, Int. Dec. 3998 (BIA 1999). In Matter of Joseph, the BIA indicated that when an immigration judge undertakes to decide whether an alien is a member of a mandatory detention category, the immigration judge need not make a finding regarding the merits of the case, but needs to decide that the INS is "substantially unlikely to prevail" in its charge.
Of course, should an immigration judge make such a finding, the INS can stay the release order pursuant to 8 C.F.R. § 3.19(i)(2). Only the INS and the BIA can lift the stay. The BIA will lift the stay should the alien prevail in the bond appeal the INS will file after it imposes the stay. If the INS fails to appeal the immigration judge's decision to the BIA, the stay evaporates after the appeal period runs. 8 C.F.R. § 3.19(i)(2).
APPEALING BOND DENIALS
A bond denial by the Immigration Judge or the failure to lower bond can be appealed to the BIA. There is no fee for this appeal. An alternative to an appeal is to request a second bond redetermination hearing. While the first bond redetermination hearing can most often be requested orally, the second and subsequent requests are made on written motions. 8 C.F.R. § 3.19(e). The standard is that the alien present substantially changed circumstances before an immigration judge will grant a second or subsequent bond hearing. Id. The alien and counsel are often disposed to seek a bond hearing at the earliest possible moment by scheduling a bond hearing even before a Notice to Appear is filed in a case. Because the request can be made orally and there is an air of spontaneity to the affair, the alien, usually newly detained, and the alien's family are often predisposed to seeking an immediate hearing. The drawback is that the "substantially changed circumstances" hurdle at 8 C.F.R. § 3.19(e) is a high one. An informal and undocumented rendition of the equities, without proper preparation, may not impress the court that the alien is not a danger to the community and not a flight risk. The immigration judge will deny a bond redetermination or the setting of a bond. After time and preparation, when a packet of documents, letters, and a memorandum of law is submitted, the immigration judge may decide that while the new information helps explain the situation, it does not add anything substantially new and does not show that circumstances are changed. The reality is that there is effectively only one bite of the apple at the bond redetermination phase of the case, and it is best to prepare adequately rather than squander the only real opportunity to have the immigration judge order a reasonable bond and release of the alien.
In the case of arriving aliens, the issue of appeal ofa denial of bond by the district director is more problematic. The forum for appeal is the district court. The INS takes the position that detention, bond, and release issues are not subject to review, based on their interpretation of INA § 236(e). Further, the INS insists that INA § 242(b)(9), referred to as the "unmistakable zipper clause" requires that judicial review of decisions regarding custody and bond issues are available only in judicial review of final orders of removal, i.e., at the end of the entire removal proceeding process. The Eleventh Circuit Court of Appeals, in Richardson v. Reno, 180 F.3d 1311 (11th Cir. July 14, 1999), agreed with this analysis
The contrary view is that INA § 236(e) applies to discretionary decisions, and not the issue of eligibility for release. Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999). Further, based on the fact that issues of custody and bond are separate from issues of removal according to regulations and a long line of case law, the unmistakable zipper clause does not apply. As with most judicial review questions, this one is very unsettled. A further obvious burden to review is the plenary power doctrine, discussed, supra.
The Attorney General has been vested with great powers to detain and deport aliens. The procedures the Attorney General uses to arrest, detain, and occasionally, release aliens depend on where the alien was arrested, when the alien was arrested, and why the alien is being detained. Counsel for aliens ensnared in the INS detention system are wise to figure out exactly what the legal position of the client alien is in, prepare carefully, and try to exploit the complexity of the detention and bond system and the interests of the Attorney General's actors, to effect the best possible result. While the days when most of our clients will be free to visit us in our offices to prepare their cases are over, for those who can be released, the efforts to make this release possible are particularly rewarding because of the importance we all attach to freedom.