Making Immigration Happen
Chicago Woman Arrested for Selling Fraudulent Identity Documents to Illegal Aliens
A woman was arrested Wednesday, February 13, 2013, on charges she allegedly sold fraudulent identity documents to illegal aliens. These charges resulted from an investigation conducted by U.S. Immigra

Appeals of Immigration Bond Decision

Appeals to the BIA of an IJ’s bond decision must be made within 30 days. 8 C.F.R. §§ 1003.38, 1236.1(d)(3)(i). Appeals of a DD’s bond decision must be made within 10 days. 8 C.F.R. § 1236.1(d)(3)(ii).

Filing an appeal from a DD determination or an IJ redetermination shall not operate to delay compliance with the custody order (except for with discretionary or automatic stays under 1003.19(i)), nor stay the administrative proceeding or removal. 8 C.F.R. § 1236.1(d)(4).

*An IJ may redetermine bond even if a previous request is being appealed. When appropriate, an IJ may entertain a bond redetermination request, even when a previous bond redetermination by the IJ has been appealed to the BIA. Matter of Valles, 21 I&N Dec. 769, 771-72 (BIA 1997). If a bond redetermination request is granted by an Immigration Judge while a bond appeal is pending with the BIA, the appeal is rendered moot. Id. at 773. Exception: If an IJ declines to change the amount or conditions of bond, DHS must notify the BIA in writing, with proof of service on the opposing party, within 30 days, if it wishes to pursue its original bond appeal (i.e., the respondent cannot defeat a DHS appeal by continually filing redetermination requests). Id.

DHS may seek an discretionary stay from the BIA regarding any bond order. 8 C.F.R. § 1003.19(i)(1).

*New Automatic Stay Provisions (Nov. 1, 2006): DHS may obtain an automatic stay of an IJ’s bond order by filing an EOIR-43 within one day of the release order, where the DD denied bond or set bond at $10,000.00 or more and the IJ authorized release on bond. 8 C.F.R. §§ 1003.19(i)(2), 1003.6(c)(1). Thereafter, DHS must file a notice of appeal consistent with 8 C.F.R. § 1003.38 to the BIA within 10 days of the IJ’s decision. 8 C.F.R. § 1003.19(i)(2); see also 71 Fed. Reg. 57873, *57874 (Oct. 2, 2006). The final rule directs IJs to issue written custody decisions in automatic stay cases within 5 business days after the immigration judge is advised that DHS has filed a notice of appeal. 8 C.F.R. § 1003.6(c)(2); 71 Fed. Reg. 57873, *57875 (Oct. 2, 2006). Detailed procedures are found at 8 C.F.R. § 1003.6(c); see also OPPM; note: automatic five day stays of a BIA release are detailed in 8 C.F.R. § 1003.6(d) and have been held unconstitutional. See, e.g., Zavala v. Ridge, 310 F. Supp. 2d 1071 (N.D. Cal. 2004) (LPR detained by virtue of automatic stay successfully petitioned for writ of habeas corpus; stay violated SDP and PDP; regulation is invalid as ultra vires, goes beyond INA authority by eliminating IJ discretionary authority).

*A DHS merits appeal does not stay a custody release. Matter of Joseph, 22 I&N Dec. 660, 669 (BIA 1999) (“To the extent that Valles may be read as suggesting that a Service appeal from an Immigration Judge’s decision finding an alien not removable or deportable operates in any way to stay an Immigration Judge’s release order, we now expressly reject that proposition. Since an appeal from the release order itself would not suffice to stay the release of an alien without the additional operation of one of the stay procedures in 8 C.F.R. § 1003.19(i), it follows that a merits case appeal will not stay an Immigration Judge’s release order.”).

 

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