1. Immigration Detention, Bond, and Habeas Litigation
AILA New york chapter Monthly meeting
Bond training, january 9, 2017, 6-7 p.m.

2. Questions to Answer
What is the government’s authority to arrest and detain noncitizens?
Who is eligible for a bond hearing?
How do bond submissions and hearings work, and how do I win?
How do people get out of detention besides bond hearings?
How do habeas corpus petitions help detainees get out of custody?

3. Legal Bases for Immigration Detention
The “Big Three” Detention Statutes
INA § 236 – Detained pending removal proceedings
INA § 235 – “Arriving alien” detained pending decision on admission (usually also means detained during removal proceedings)
INA § 241 – Detained with final order of removal, pending removal from the United States

4. Bond Eligibility and Hearings

5. Bond Eligibility Discretionary Detention- INA § 236(a)
An individual may be detained
OR released on a bond (bail) of at least $1,500
OR granted conditional parole (aka ROR)
ICE can do any of these 3 things AND the Immigration Judge can re-determine ICE’s decision using these 3 options.
Lately, ICE rarely sets a bond amount themselves – it’s ROR or no bond.

6. Mandatory Detention
Certain individuals are subject to “mandatory detention,” meaning they do not even get a bond hearing.

7. Mandatory Detention “Arriving Aliens” – INA § 235(b)
These are people deemed to be seeking admission at the border, but may be new arrivals OR long time LPRs. See 8 C.F.R. § § 1.2; (q)
People with certain criminal convictions - INA § (c)
These individuals now become bond-eligible at 6 months of detention. Lora gets the Respondent the right to a hearing, but not the right to a bond being set. Lora v. Shanahan, 804 F. 3d 601 (2d Cir. 2015)
People with final removal orders – INA § 241
Unless they pass a “reasonable fear” interview and are in withholding- only proceedings. Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016)

8. Release from Detention
Parole/Discretionary Release
Arriving aliens can be “paroled”
ICE can release anyone they want in their discretion
Bond Hearings
Individuals detained under § 236(a) (i.e. in removal proceedings, and not in mandatory detention)
Lora Bond Hearings
Detained pursuant to § 236(c)

9. Parole/Discretionary Release
Although arriving aliens are not eligible for bond, they can apply to ICE for humanitarian parole under INA § 212(d).
It has nothing to do with criminal parole
The fiction is the person remains at the border and has not been legally “admitted” yet
ICE can release anyone in their discretion (although they have sometimes denied this).
People with removal orders can be released on orders of supervision.

10. Bond Ineligibility Under § 236(c)
INA § 236(c)- the AG shall take into custody:
Any individual who is deportable (has prior lawful admission) under INA § 237 for:
2 crimes involving moral turpitude (CIMT)
1 CIMT with sentence of 1 year or more
Aggravated Felony
Controlled Substance Offense
Firearms Offense
Other crimes, including espionage or terrorism (rare)

11. Bond Ineligibility Under § 236(c)
Any individual who is inadmissible (has not already been admitted) under INA § 212 for:
1 CIMT (and has no petty offense exception)
Controlled substance offense
Drug trafficking offense
2+ offenses with aggregate sentence of 5 years
prostitution
National security (rare)

12. Bond Ineligibility Under § 236(c)
§ 236(c) applies even if the conviction is not charged on the NTA
The mandatory detention statute is not retroactive
It only applies if the individual was released from criminal custody after 10/9/1998
§ 236(c) applies even if there is a gap between criminal and immigration detention (Matter of Rojas, 23 I&N Dec. 117 (BIA 2001); Lora v. Shanahan)

13. Immigration Habeas Corpus Litigation
The people behind the case: Alex Lora and his son Alex, who was put in foster care when Mr. Lora was detained by ICE. Mr. Lora is a BDS NYIFUP client.

14. Litigating Bond Eligibility
If an individual is subject to mandatory detention, the IJ has no power to set bond
But you can challenge the inclusion of your client in a mandatory detention category
Matter of Joseph, 22 I&N Dec. 799 (BIA )
An IJ can set bond if it is “substantially unlikely” that DHS will establish the charge(s) that subjects the individual to mandatory detention

15. Submitting a Parole/Release Request
Submit parole/release requests to ICE Enforcement and Removal Operations that make both legal and humanitarian arguments
Requests are similar to a bond packet; include proof of equities, low danger and flight risk, medical issues, ID documents, etc.
You may serve courtesy copy to ICE counsel and/or Immigration Judge
Follow up with the client’s Deportation Officer for decision in writing
Denials are often boilerplate and very short
Often important when we then file a habeas corpus petition (more on this later…)

16. Bond Hearings
8 C.F.R. §
A respondent asks for a bond hearing by filing a “Motion for Custody Redetermination” with the Immigration Court, or making an oral request on the record during a hearing.
Hearing usually scheduled a few weeks later. At the hearing, the IJ will consider if the person is a flight risk or a danger to the community.
The actual bond hearing might be 5 minutes to 2 hours (usually on the short end) and involve oral argument and sometimes testimony
ICE may or may not stipulate to a bond amount, often a high one (Imm. Court Practice Manual § 5.2(i), make attempt to get DHS position on bond before filing motion/before hearing)
Bond Proceedings are held in a separate record than the merits/removal record (meaning you may need to duplicate exhibits)

17. Bond Hearings Cont.
Matter of Guerra, 24 I&N Dec. 37 (BIA 2006) - The burden of proof is on the respondent to show merits a grant of bond
Relevant factors:
Fixed address in US
Length of residence in US
Family in US
Employment history
Record of appearance in court and attempts to escape from authorities
Criminal record (number, recency and seriousness of offenses)
Manner of entry and history of immigration violations

18. Bond Hearings Cont. Potential evidence in support of low bond
Letters of support from family, friends, or employers
Proof of eligibility for relief (advisable to include the application)
Proof of date and manner of entry
Certificates of disposition for convictions
RAP sheet to show no bench warrants
Bills or records showing fixed address
Birth and marriage certificates
Proof of employment and tax history
Proof of rehabilitative programs or probation compliance
Evidence of limited ability to pay high bond (???)

19. Do Not Throw Away Your Shot!
You are only entitled to ONE bond hearing before the IJ
So don’t move for bond until you are ready and have the documents you want
Unless you can show materially changed circumstances – 8 C.F.R. § (e) (not clear what that is, be creative)

20. Lora Hearings
Second Circuit held that immigrants subject to mandatory detention must be provided a bond hearing within six months of detention. 
Lora v. Shanahan, 804 F. 3d 601 (2d Cir. 2015)
The standard is different from a normal bond hearing, where the respondent bears the burden of proof
Under Lora, the respondent is entitled to bond “unless the government establishes, by clear and convincing evidence, that the alien poses a risk of flight or a risk of danger to the community.”

21. Guerra v. Shanahan (2d Cir. 2016)
Individuals in withholding-only proceedings had a prior removal order, but passed a ‘reasonable fear’ interview and are before the IJ to seek withholding of removal or CAT protection only
Second Circuit held in July 2016 that these individuals do NOT have final orders because they are applying for relief from removal and have the right to appeal their cases
Therefore they are actually detained under INA §236 and can move for bond
NOTE: a “Guerra” bond hearing may actually look like either a 236(a) bond hearing or a Lora hearing depending on the client’s criminal record. This is a new and evolving issue.

22. Current Challenges in Regular and Lora Bond Hearings
High bond amounts
Detailed exploration of relief early in the case to find high flight risk
Harsh treatment of DUIs and other non-removable conduct
Reliance on criminal complaints and allegations that did not result in conviction
IJ and BIA finding danger on a wide range of criminal conduct
IJs not holding government to high Lora standard
Therefore, it is important to build a strong record for appeal.
In extreme circumstances, file a habeas corpus petition in federal District Court.

23. Appealing Bond Decisions
Either party may appeal the IJ’s bond decision; the Notice of Appeal (E-26) must be filed within 30 days of the decision. (Include E-27, notice of appearance). There is no filing fee for an appeal of a bond decision.
If the IJ rendered an oral decision, a transcript is prepared; if summary order, the IJ must write a memo supporting her/his decision.
Briefing schedule is set – if the Respondent remains detained, simultaneous briefing is ordered; if released, consecutive briefing (appellant first) is ordered.
Regular standard of review rules apply:
Questions of law and issues of discretion under de novo review. 8 C.F.R. § (d)(3)(ii).
Mixed question of law and fact, the Board applies de novo review. Matter of V-K-, 24 I&N Dec. 500, (BIA 2008); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, (BIA 2010).
The Board defers to an Immigration Judge’s findings of fact, unless clearly erroneous. 8 C.F.R. § (d)(3)(i).

24. Habeas Corpus Litigation
“The government did not seriously dispute that Lora was neither a flight risk nor a danger to the community .” – Lora v. Shanahan

25. The Great Writ
28 U.S.C. § 2241
Can be used broadly for illegal civil detention
In the immigration context:
Client detained indefinitely without bond or procedural protections
Client should not be detained in the first place under the INA
Client is detained under the wrong statute
Anything about client’s detention or custody is in violation of the INA or the Constitution
Prudential exhaustion: This situation can’t be fixed by the agency or we shouldn’t have to wait for that

26. Immigration Habeas History 101 – Supreme Court
Zadvydas v. Davis, 533 U.S. 678 (2001) – Noncitizens with final removal orders, detained under INA § 241, cannot be detained indefinitely if they can’t be physically deported
Clark v. Martinez, 543 U.S. 371 (2005) – Zadvydas applies to noncitizens who were inadmissible (Mariel Cubans) as well as those who were deportable (prior LPRs). INA § 241 has to mean the same thing for everyone.
Demore v. Kim (2005) – Facial challenge to mandatory detention statute, INA § 236(c), failed. The concept of no-bond detention during removal proceedings is not unconstitutional. Left open as-applied challenges.

27. Jennings v. Rodriguez
9th Circuit case argued before the Supreme Court in November and now in supplemental briefing
Covers bond eligibility after 6+ months detention for noncitizens detained under § 235(a) (arriving aliens) and § 236(c) (criminal grounds). Also covers burden of proof.
Justices seemed split on reaching statutory or constitutional issues
Could lead to a nationwide rule that is good or bad and supersedes Lora, a remand that keeps Lora intact, or something we haven’t thought of
Decision probably May-June

28. Questions? Ideas? ANDREA SAENZ, ASAENZ@BDS.ORG
Tracy lawson,