Custody Redetermination Hearings and Material Change in Circumstances

12/30/21 Removal & Relief

AILA Law Journal author Matthew Boles shares some insights about researching and writing about “Custody Redetermination Hearings and Material Change in Circumstances” in this blog post, part of our series devoted to the latest edition of the AILA Law Journal. AILA members can access their free digital copy here.

Since becoming admitted as an attorney in 2017, I have primarily worked on detained immigration cases and have been fortunate enough to practice in front of numerous immigration courts in several states. Most, if not all, of my clients and potential clients understandably ask whether they could be released from detention. Most people I met with knew that Immigration Judges (IJ) were granting bonds and releasing people from the facilities. Release strategies and arguments have intrigued me since I’ve done detained work, and I’ve been fortunate to present about release strategies at numerous AILA conferences in the past.

I read on AILA listservs about COVID-19 as an argument that the global pandemic is a material change in circumstances. I read templates and found resources, and saw information about IJs considering the respondent’s ability to pay. I realized practitioners were seeking out information about a topic that I believe is important and can ultimately result in more respondents being released from detention while their cases are pending. I wanted to write an article that explains the standard and procedural requirements and analyze unpublished BIA cases.

When I began to work on custody redetermination requests, I was able to find templates and practice advisories, and generally had access to a lot of information to help me prepare for the hearings. The best-case scenario, of course, is to receive a bond your client can afford, the Department of Homeland Security (DHS) either waives the right to appeal or reserves but does not, and the obligor can go to the nearest Immigration and Customs Enforcement (ICE) office that accepts bond payments. But what about a situation where a bond is denied, or a bond is set at an amount your client cannot afford?

I knew about appealing to the Board of Immigration Appeals (BIA). I’ve appealed bond denials to them before. There is no filing fee for the bond appeal. While the bond appeal is pending, the case in chief continues as normal, and the bond appeal can take months to decide. Your client may be ordered removed in the meantime. For example, I filed an appeal for a denial of a bond, and the IJ subsequently denied my client’s application for asylum, withholding of removal, and protection under the Convention Against Torture. Even though I appealed that decision, when the BIA dismissed my bond appeal a few months after that, they referred to the order of removal and speculative form of relief.

I learned about the ability to ask for a subsequent motion for custody redetermination, and I immediately thought of ways it could help some of my clients. A client may marry a fiancé, pending criminal charges may be dismissed, the health of a client’s family member may change, there may be a change in the law, etc. There are endless changes that could happen while a client is detained for several months. As I researched more about requesting a subsequent motion for custody redetermination, I learned about the material change in circumstances standard. Not only is there a different standard than the first custody redetermination hearing, but there is also a procedural difference. I was able to find a few templates and unpublished BIA cases, but I could not find as much guidance. I wanted to make sure I was as prepared as possible, but I was also nervous submitting my first motion for subsequent custody redetermination hearing without the same number of cases and arguments. It was also difficult explaining to clients that with this motion, we may never have a hearing and that the IJ could simply read what I wrote, review the exhibits, and make the determination. Because of this, I highlight not only any difference that I am arguing, but also why the change is material that warrants a new hearing.

I have been incredibly fortunate to have several immigration attorneys help me as a young attorney. I regularly reach out to other attorneys and ask questions. This has made me a better attorney and advocate for my clients. I sincerely hope the article helps other practitioners across the country advocate in front of IJs.

by Matthew Boles