In re Joseph: Filing for Automatic Stay with IJ Allows INS to Continue Detaining Alien Pending Appeal

IMMIGRATION LAW & POLICY

Arrest and Detention

IN RE JOSEPH: FILING FOR AUTOMATIC STAY WITH IMMIGRATION JUDGE ALLOWS INS TO CONTINUE DETAINING ALIEN PENDING APPEAL
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

The Board of Immigration Appeals has found that an alien may continue to be detained by the Immigration and Naturalization Service, even after an immigration judge has determined that the alien is not subject to mandatory detention and terminates removal proceedings. Such continued detention is permitted if the alien was charged with removal under one of the mandatory detention grounds and the INS simply files Form EOIR-43 for an automatic stay of the IJ’s order to release the alien. The BIA also modified Matter of Valles, Int. Dec. 3306 (BIA 1997), to clarify that merely filing an appeal from an IJ’s finding that an alien is not removable or deportable is insufficient to stay an IJ’s release order. The stay procedures must be followed.

The respondent, a lawful permanent resident, was convicted of obstruction of justice and sentenced to one year in prison. The respondent was placed in removal proceedings and charged with being removable as a convicted aggravated felon. The INS held the respondent without bond based on its charge that he is an aggravated felon and subject to the mandatory detention provisions of INA section 236(c)(1).

The respondent filed a motion with the IJ requesting review of the INS’ custody determination. He requested release on his own recognizance, or alternatively, on a reasonable bond, arguing that his offense is not an aggravated felony that subjects him to mandatory detention.

Finding that the respondent is not an aggravated felon and is not removable, the IJ terminated proceedings and issued an oral order releasing the respondent from custody. Two days later the IJ issued a "summary" of this oral decision terminating proceedings and a written release order. The same day the IJ issued his oral release order, the INS attempted to file Form EOIR-43 for an automatic stay of the IJ’s order pursuant to 8 CFR section 3.19(i)(2). The IJ rejected the form and explained that he did not accept it because he had found that the respondent was neither removable as an aggravated felon nor subject to the mandatory detention provisions of the INA. The INS appealed both the IJ’s release order and his order terminating removal proceedings.

The issue before the BIA was whether the INS may properly invoke an automatic stay of an order releasing an alien when the IJ has determined that the respondent is neither subject to mandatory detention nor removable.

The BIA found that the INS properly invoked the automatic stay provision when it presented Form EOIR-43 to the immigration court and that the IJ did not have the authority either to refuse the form or to make his own determination that his custody decision should not be stayed.

In a subsequent decision relating to the same respondent, the BIA also addressed the question of when an IJ has jurisdiction to set bond for an LPR who is charged by the INS with a ground of removability that would otherwise require the alien’s mandatory detention.

The BIA concluded that the IJ may determine whether an LPR is improperly included in a mandatory detention category, and is therefore eligible for bond, either before or after the conclusion of the underlying removal case. The BIA found that if the IJ addresses whether the LPR is properly included in a mandatory detention category prior to completion of the case in chief, the IJ must have "very substantial grounds" to override the INS’s decision to charge the alien with a ground that subjects the alien to detention. Thus, an LPR will be considered improperly included in a mandatory detention category only when an IJ is convinced that the INS is substantially unlikely to establish, at the merits hearing, the charge(s) that subject the alien to mandatory detention. The BIA also found that if the threshold bond decision is made after the IJ’s resolution of the removal case, then the IJ may rely on that underlying merits determination in the removal case.

The BIA noted that in either event, the IJ’s bond ruling is subject to the INS’s invocation of the automatic stay provisions discussed above, pending appeal. Thus, potentially, aliens may continue to be held by the INS despite an IJ’s order to release the alien if the INS files for an automatic stay of the IJ’s order. In the case before the BIA, the respondent was ordered released pending a final resolution of the underlying issues in the case.

In re Joseph, Int. Dec. 3387 (BIA Apr. 23, 1999); In re Joseph, Int. Dec. 3398 (BIA May 28, 1999).