YES, under certain humanitarian exceptions, an inadmissible arriving alien can be granted parole by the Bureau of Immigration and Customs Enforcement (ICE) of the Department of Homeland Security (DHS), even though the Immigration Judge is precluded by the DHS regulations from considering release on bond for arriving aliens.
Indeed, if an arriving alien is inadmissible to the United States for lack of a valid visa, or on other statutory grounds, he or she is deprived of a bond redetermination by the Immigration Judge in removal proceedings.
Arriving aliens and non-arriving aliens:
In Matter of X-K-, Respondent, 23 I&N Dec. 731 (BIA 2005), the Board of Immigration Appeals (BIA) categorically ruled that: “There is no question that Immigration Judges lack jurisdiction over (custody of) arriving aliens who have been placed in Section 240 removal proceedings, because they are specifically listed at 8 C.F.R. § of 1003.19(h)(2)(i)(B) as one of the excluded categories.”
But as clarified by the BIA in that case, as to “certain other aliens” (not arriving aliens), who are “physically present in the US, without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, who are encountered by an immigration officer within 100 air miles of any US international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the US continuously for the 14-day period immediately prior to the date of encounter,” there is no parallel provision pertaining to them.
So, as to non-arriving aliens, such as aliens entering without inspection (EWIs), who have been present in the United States less than fourteen (14) days, the DHS regulations do not prevent an Immigration Judge from redetermining the custody status of such aliens who have established a credible fear of persecution, and are referred to removal proceedings.
General rule: immigration judges have custody jurisdiction over aliens in removal proceedings:
The DHS regulations provide that, after the DHS has made an initial custody determination, an alien in removal proceedings (after a Notice To Appear is issued and served upon the alien and filed with the Immigration Court) may seek a change in custody status at any time before he or she is subject to a final removal order, under 8 C.F.R. § 1236.1(d).
Indeed, 8 C.F.R. § 1236.1(d)(1) specifically states that, until there is a final removal order in the Section 240 removal proceedings, Immigration Judges have jurisdiction to exercise the authority in Section 236 of the Immigration and Nationality Act (INA) “to detain the alien in custody, release the alien and determine the amounts of bond…”
As stated above, one of the excluded categories to this general rule is an arriving alien, under 8 C.F.R. § 1003.19(h)(2(i)(B).
DHS retains exclusive custody jurisdiction over arriving aliens under expedited removal proceedings and beyond:
As explained by the Board of Immigration Appeals in Matter of X-K-, Respondent, supra, the Immigration and Nationality Act (INA) provides for the immediate removal, without further review, of aliens who are subject to Section 235(b)(1) expedited removal proceedings.
But if an alien has indicated a desire to apply for asylum or has expressed a fear of persecution, he or she may not be immediately removed and must be referred to an asylum officer for a credible-fear interview.
And if the asylum officer finds a credible fear of persecution, he or she shall issue a Notice To Appear (Form I-862) for full consideration of the alien’s asylum and withholding of removal applications in removal proceedings before an Immigration Judge.
In the meantime, Section 235(b)(1)(B)(iii)(IV) of the INA provides for the mandatory detention of aliens processed under expedited removal proceedings pending a final determination of credible fear of persecution and, if found not to have such a fear, until removal.
Authority of DHS to grant parole:
Pending the final credible-fear determination, the DHS retains its authority to grant parole in “normal non-expedited removal proceedings” before the Immigration Judge, as an exception to mandatory detention.
Indeed, 8 C.F.R. § 212.5(b) states that “(t)he parole of aliens within the following groups who have been or are detained in accordance with 235.3(b) or (c) of this chapter would generally be justified only on a case-by-case basis for ‘urgent humanitarian reasons’ or ‘significant public benefit,’ provided the aliens present neither a security risk nor a risk of absconding:
(1) Aliens who have serious medical conditions in which continued detention would not be appropriate;
(2) Women who have been medically certified as pregnant;
Aliens who are defined as juveniles….;
(4) Aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or
(5) Aliens whose continued detention is not in the public interest as determined by those officials identified in paragraph (a) of this section.”
The conditions for grant of parole are: “reasonable assurances that the alien will appear at all hearings and/or depart the United States when required to do so.” Reasonable discretion should be applied; and consideration of all relevant factors includes:
“(1) The giving of an undertaking by the applicant, counsel, or a sponsor to ensure appearances or departure, and a bond may be required on Form I-352 in such amount as may be deemed appropriate;
Community ties such as close relatives with known addresses; and
(3) Agreement to reasonable conditions (such as periodic reporting of whereabouts,” under 8 C.F.R. § 212.5(d).
Parole in removal proceedings:
“When a charging document (Notice To Appear) is served on the alien, the charging document will constitute written notice of termination of parole, unless otherwise specified…” If the “deportation or removal order cannot be executed within a reasonable time, the alien shall again be released on parole unless… the public interest requires that the alien be continued in custody,” per 8 C.F.R. 212.5(e)(i).
Thus, arriving aliens who are inadmissible are not entitled to a bond hearing before an Immigration Judge, but may seek release on parole before the Bureau of Immigration and Customs Enforcement (ICE), who maintains the right to consider parole for them.
Lastly, general detention statues [8 USC. § of 1225(b)(1)(B)(ii) and (b)(2)(A)] do not authorize the ICE to indefinitely detain inadmissible aliens, as held by the Ninth Circuit in Nadarajah v. Gonzales, No. 05-56759 (9th Cir. March 17, 2006).
Consistent with the US Supreme Court approaches in Zadvydas v. Davis, 533 US 678 (2001) and Clark v. Martinez, 543 US 371 (2005), the Ninth Circuit concluded in Nadarajah, supra, that the aforesaid detention statutes “permit detention only while removal remains reasonably foreseeable.”
And it further concluded that “after a presumptively reasonable six-month detention, ‘once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence to rebut that showing.’”
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Roman P. Mosqueda has practiced criminal defense and Immigration law for over 20 years. He is a long-time member of the California Public Defenders Association. , and trained as a prosecutor with the Los Angeles City Attorney under the Trial Advocacy Program of the Los Angeles County Bar Association. He is also a volunteer, State-Bar trained arbitrator on attorney’s fees dispute resolution. Send comments or inquiries to [email protected] , or call (213) 252-9481 for free consultation appointment, or visit his website at www.mosquedalaw.com