NWRIP and AILA Address Bond Eligibility for Respondent Deemed Subject to Mandatory Detention

AILA’s Amicus Committee joined the National Immigrant Rights Project in submitting an amicus brief arguing that the respondent was entitled to a custody redetermination by the IJ as he was subject to detention under INA § 236(a) and not INA § 235(b)(2). AILA provides the underlying Tacoma, Washington IJ decision that initially deemed the respondent subject to mandatory detention.

September 1, 2023

The BIA issued an opinion, sustaining the respondent’s appeal, stating that “however, both the respondent and the DHS have filed briefs arguing that the Immigration Judge may redetermine the conditions of the respondent’s custody. Further, we are unaware of any precedent stating that an Immigration Judge lacks authority to redetermine the custody conditions of a respondent in removal proceedings under the circumstances here. Accordingly, we will remand this case so that the respondent may receive a custody redetermination hearing before the Immigration Judge.”

March 3, 2023

The IJ denied the respondent’s motion for custody re-determination and ordered the respondent to be held without bond, stating that, “based on the evidence at the bond hearing, the court finds that respondent is an “applicant for admissions” because he entered the United States without permission, was examined by an immigration office, and the officer found that respondent was not entitled to be admitted… thus the court has no jurisdiction to redetermine respondent’s bond.”