Motion for Subsequent Custody Redetermination Hearing What to Know About Asking an Immigration Judge for Bond Again

• Publication year: 2021

Motion for Subsequent Custody Redetermination Hearing What to Know About Asking an Immigration Judge for Bond Again

Matthew Boles ^*

Abstract: In the case where an immigration judge either denied bond or granted a bond the respondent cannot afford, he may be able to file a motion for a subsequent custody redetermination hearing, but the procedure and standard are different. This article provides an overview of requesting a subsequent custody redetermination hearing. It describes the process for requesting an initial custody redetermination hearing and for a subsequent custody redetermination hearing. The article then addresses the legal standard and examines several unpublished decisions and recent arguments. Next, the article provides tips when preparing a motion for a subsequent custody redetermination hearing. Finally, the article has a brief description about alternatives to detention (ATD).

Introduction

One of the most common questions a client will ask is whether they can be released from Department of Homeland Security (DHS) custody on a bond or by any other means. Although immigration detention is civil, ¹ detention centers and their practices in at least some facilities resemble criminal incarceration, with prison uniforms, strip searches, and shackles. ² Aside from the obvious benefit of freedom, being nondetained has several other advantages while removal proceedings are pending. While two-thirds of respondents who are not detained are represented in immigration court, that number for detained respondents is only 14 percent. ³ Nondetained respondents are more likely to gather proof and supporting documents and have a better chance of pursuing relief, and the respondent's family does not have the same strains. ⁴ Whether a respondent can be released, and how, depends on several factors.

In some instances, a respondent may be released on a bond, either on an Immigration and Customs Enforcement (ICE) bond or one from an Immigration Judge (IJ). When requesting a custody redetermination hearing, provide proof to show the court has jurisdiction and that the client is not a danger to the community and is not a flight risk. Assuming a client is not subject to mandatory detention ⁵ and is not otherwise ineligible for bond, an IJ may initially deny or set a bond the client cannot afford. An appeal can take several

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months, and the client's removal proceedings continue to proceed uninterrupted while they are detained.

Process for Custody Redetermination Hearings

Although the focus of this article is subsequent custody redetermination hearings, an overview of the process for requesting an initial hearing for custody redetermination from an IJ provides context. The IJ's initial decision matters because it affects the subsequent custody redetermination hearing analysis. ⁶

DHS makes an initial custody determination and fills out the Form I-286. DHS may continue to detain the respondent or offer release, such as on an "ICE bond." ⁷ Knowing what DHS determined is important for three reasons. First, DHS must make a determination before an immigration court has jurisdiction to issue a bond. ⁸ Second, if the respondent is offered an ICE bond, an obligor can simply pay the bond. Third, if there is an ICE bond but the respondent has a custody redetermination hearing, the IJ can either revoke or increase the bond amount, in addition to keeping it the same or lowering it. An attorney can request a custody redetermination hearing orally, in writing, or at the discretion of the IJ, by telephone. ⁹ IJs cannot redetermine the custody status sua sponte. ¹⁰ Additionally, the bond hearing is "separate and apart" from removal proceedings. ¹¹ The IJ can hold a bond hearing at any time once DHS makes its determination and before there is an administratively final decision. ¹²

Unlike in the criminal context, there is no right to a bond in the immigration context. ¹³ Generally, the respondent has the burden of proving the court has jurisdiction, that they are not a danger to the community or threat to national security, and that they are not a flight risk. ¹⁴ At the conclusion of the hearing, the IJ makes a determination. ¹⁵ While the IJ can reserve judgment, in practice most IJs render decisions orally. ¹⁶ If the motion is withdrawn or no action was taken, the material-change-in-circumstances standard does not apply to the next custody redetermination hearing. ¹⁷ Either side has 30 days to appeal. In the 2018 fiscal year, 48 percent of respondents who had bond hearings were granted bond. ¹⁸ For those who are either granted a bond they cannot afford or are denied a bond, one option is to file a motion for a subsequent custody redetermination hearing.

Subsequent Custody Redetermination Hearings

A respondent ¹⁹ may be able to request a subsequent custody redetermination hearing if they are still in DHS custody and do not have an administratively final order of removal. ²⁰ The IJ still has jurisdiction for bond, even if there is a pending appeal of a removal order. ²¹ According to an amicus brief filed by former IJs, "reconsideration requests [about bonds] rarely result in a reversal of

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the IJ's decision." ²² Nonetheless, if facts do change, it is a mechanism to request an additional custody redetermination hearing. A respondent can file a subsequent motion for custody redetermination even while appealing the first bond decision. ²³ In this scenario, if the IJ subsequently grants a bond, the appeal with the Board of Immigration Appeals (BIA) for the first bond denial is rendered moot. ²⁴ Filing a motion for a subsequent custody redetermination hearing does not toll the appeal time. ²⁵

There are important differences between requesting an initial custody rede-termination hearing and a subsequent custody redetermination hearing. First, unlike the first custody redetermination hearing, a motion for a subsequent custody redetermination hearing must be made in writing. ²⁶ Additionally, the motion "shall be considered only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination." ²⁷ The respondent has the right to one bond hearing, ²⁸ so an IJ may determine there is no material change in circumstances without having a hearing. When preparing the motion, the rules set forth in the Immigration Court Practice Manual applicable to submitting the first motion for custody redetermination hearing apply, such as writing the full name and alien registration number of the respondent on the cover page and the location of the detention facility where the client is detained. ²⁹

Differences between initial custody redetermination motion and motion for subsequent custody redetermination hearing
Initial custody redetermination request	Subsequent custody redetermination request
Can be made orally, in writing, or at the discretion of the IJ, by phone	Must be made in writing
Can be made once DHS makes its custody determination. Do not have to wait for the Notice to Appear to be issued.	Made after an IJ has made a decision regarding bond but before case is administratively final; can also file motion for custody redetermination with pending appeal to BIA for merits case and/or initial custody redetermination
Standard: danger to community and flight risk	Standard: alien's circumstances have materially changed since the previous request
Similarities between initial custody redetermination motion and motion for subsequent custody redetermination hearing
IJs do not have authority to order the hearing sua sponte
File motion with immigration court that has administrative control
Immigration court has jurisdiction until there is a final administrative order
Must comply with requirements in the Immigration Court Practice Manual
Once the IJ renders a decision, either side can reserve or waive the right to appeal

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Material Change in Circumstances Standard

What exactly constitutes a material change in circumstances to warrant a subsequent custody redetermination hearing? Surely not every change is material, so how have the BIA and IJs analyzed this standard?

In a case involving denaturalization, the Supreme Court held that a change in fact is "material" if it would either have a natural tendency to influence or is predictably capable of affecting the decision that was decided. ³⁰ The BIA precedent chart does not list any published decisions related to this standard for custody redetermination hearings. ³¹ There are unpublished BIA decisions, which are not precedential, ³² that are helpful in determining whether a change is material. The material change standard is, in part, designed to eliminate from the docket cases involving issues without significant differences from those decided in a previous hearing. In response to a notice-and-comment period about requiring the motion for a subsequent custody redetermination hearing to be in writing, commenters stated this could limit the number of custody redetermination hearings someone may have. The response was twofold: (1) the rule does not limit the number of custody redetermination hearings a respondent can have, and (2) "[r]equiring the respondent to set forth a showing of material change in circumstances before appearing before the Immigration Judge will permit meritorious cases to be heard more quickly, and will discourage frivolous requests for multiple bond hearings." ³³ This concern seems relevant, as there is a backlog of more than one million pending immigration cases.

A review of some cases in which the BIA found a material change in circumstances is beneficial. In one case, the dismissal of a pending criminal charge and the reinstatement of a respondent's grant of Deferred Action for Childhood Arrivals constituted a material change in circumstances, so the BIA remanded the case to the IJ to set a reasonable bond. ³⁴ In another case, the BIA held that an IJ granting cancellation of...