NON-MANDATORY CUSTODY ALIENS

1. Neither section 236(a) of the Act nor the applicable regulations confer on the alien the right to release on bond. In re D-J-, 23 I&N Dec. 572 (A.G. 2003). The denial of a respondent’s release on bond does not violate international law. Id.

2. For non-mandatory custody aliens, Immigration Judges can: (1) continue to detain; or (2) release on bond of not less than $1,500.00. INA § 236(a). Note: Immigration Judges do not have authority to consider or review DHS parole decisions.

3. Section 236(a) of the Act does not provide for the release of an alien on the alien’s own recognizance.

4. Under BIA case law addressing general bond provisions of prior law, an alien ordinarily would not be detained unless he or she presented a threat to national security or a risk of flight. See Matter of Patel, 15 I&N Dec. 666 (BIA 1976). By virtue of 8 C.F.R. § 1236.1(c)(8) (2006), a criminal alien must demonstrate that he is not a threat to the national security, that his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). But see In re D-J-, 23 I&N Dec. 572 (A.G. 2003).

5. Juveniles (i.e., under 18) have special conditions of release. See 8 C.F.R. § 1236.3 (2006).

a. Juveniles, in addition to having monetary bond, will have conditions of release in that they can only be released, in order of preference, to :

i. a parent,

ii legal guardian, or

iii. adult relative.

b. The regulation governing juvenile conditions of release is quite detailed and specific. There is no authority for the Immigration Judge to fashion independent conditions of release. See also In Re Mejia-Andino, 23 I&N Dec. 533 (BIA 2002); Matter of Amaya, 21 I&N Dec. 583 (BIA 1996).