The Board of Immigration Appeals has issued an en banc decision finding that it has jurisdiction to hear appeals of custody determinations made by Immigration and Naturalization Service district directors after the entry of a final order of deportation or removal, regardless of whether the custody review was formally initiated by the respondent.

The respondent in the case before the BIA was convicted on Dec. 28, 1992, of robbery and attempted robbery, for which he was sentenced to three years and eight months of imprisonment.  He received another three years for having used a firearm in committing the offense.  On June 19, 1996, the INS issued an Order to Show Cause and Notice of Hearing, charging the respondent with deportability as an aggravated felon under Immigration and Nationality Act section 241(a)(2)(A)(iii).  Upon his release from state prison one month later, the INS took the respondent into custody.  On Nov. 15, 1996, the immigration judge ordered him deported to Denmark or, alternatively, to Laos.  The order became administratively final when the respondent did not appeal it.

Nearly two years later, the respondent remained in INS custody and in July 1998 filed a writ of habeas corpus in federal district court.  On Nov. 6, 1998, the INS interviewed the respondent; 13 days later the district director issued the decision to continue his detention.  The respondent timely filed an appeal of the custody determination.

The INS argued that under 8 C.F.R. section 236.1, the regulations governing custody determinations, the BIA has appellate authority over INS district directors’ post-final order custody findings only when the review is formally initiated by the respondent.  Finding nothing in the relevant regulations imposing such a requirement, the BIA disagreed and affirmed its review authority.  After noting that both the INS and the respondent agreed that his detention under a final order of deportation entered before the Apr. 1, 1997, effective date of the Illegal Immigration and Immigrant Responsibility Act of 1996 made him eligible for release under INA section 241(a)(6), the BIA assessed whether the respondent met the release criteria.

The BIA majority ruled that such an assessment was necessary because in making the custody determination the INS district director did not adequately weigh the favorable factors in the respondent’s case against the adverse ones.  Concluding that the respondent failed to meet the requirements set forth in 8 C.F.R. section 241.4(a) that he present "clear and convincing evidence" that he no longer poses a danger to the community, the BIA affirmed the INS’s decision to continue his detention.