AG Issues Interim Rule to Expand Use of Automatic Stays of IJ Decisions Ordering Release from Detention

IMMIGRATION LAW & POLICY

Arrest and Detention

AG ISSUES INTERIM RULE TO EXPAND USE OF AUTOMATIC STAYS OF IJ DECISIONS ORDERING RELEASE FROM DETENTION
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

Attorney General John Ashcroft has issued an interim rule, effective immediately, that expands the circumstances in which the Immigration and Naturalization Service can invoke an automatic stay of a decision by an immigration judge to release a non-U.S. citizen from detention. Under the new rule, the INS can invoke an automatic stay in any case where the INS originally decided against release on bond or set a bond in excess of $10,000 and the IJ then orders release, with or without bond.

Previously, regulations of the Executive Office for Immigration Review (EOIR) provided that automatic stays were available to the INS only where a noncitizen is subject to mandatory detention because of criminal convictions or terrorist grounds. In order to invoke an automatic stay, the INS was required to file a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the immigration court on the day of the IJ's ruling. If the INS then failed to file a notice of appeal within thirty days of the bond redetermination ruling, the stay would lapse; otherwise, it would remain in effect until the Board of Immigration Appeals resolved the appeal. 8 C.F.R. § 3.19(i)(2).

The new rule revises the EOIR regulations to allow the INS to invoke an automatic stay in cases not subject to mandatory detention. The rule also modifies the procedures applicable to automatic stays. In order to invoke the automatic stay, the INS must file Form EOIR-43 "within one day" of the IJ's bond redetermination decision, and the automatic stay lapses unless the INS files a notice of appeal within 10 days of the decision. If the INS files an appeal, the stay continues in effect until the BIA rules on the appeal. If the BIA orders release, under the new rule the automatic stay continues in effect for a further five business days. If within these five days the INS commissioner certifies the BIA's order to the attorney general for review, then the stay continues in effect until the attorney general decides the case.

The interim rule took effect on Oct. 29, 2001. Written comments to be considered in development of a final rule must be submitted on or before Dec. 31, 2001.

66 Fed. Reg. 54,909 (Oct. 31, 2001).