Appeals & Bonds
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Arrest detention and release
Congress gave the authority to the Secretary of the DHS to issue a warrant for arrest of a noncitizen on charges of an immigration violation. On such warrant, a noncitizen can be arrested and detained “pending a decision” on whether he or she should be removed from the USA. During the pendency of the decision DHS may continue detaining the noncitizen, release him or her from custody on parole or supervised release with or without bond. If DHS makes a decision to release the noncitizen with a security amount of bond, the bond amount cannot be less than $1,500, and DHS cannot issue any form of employment authorization to such noncitizen unless the noncitizen is a Legal Permanent Resident (LPR) or an individual otherwise authorized to be employed regardless of the removal proceedings. Congress also authorized DHS to revoke the bond or parole at any time, rearrest and detain the noncitizen.
Mandates the bond hearing to not be part of removal proceedings, thus making it a stand-along process of its own. The regulation provides immigration courts with the authority to redetermine custody status of most non citizens as well as the bond amount, if any, originally set by the DHS or set new conditions of the to the release. Such authority lies with the immigration court of competent jurisdiction (the court that had jurisdiction of the place of detention or assigned by the office of Chief Immigration Judge regardless of whether the charging document was filed with the court.
Frequently Ask Questions
The Board of Immigration Appeals (BIA) is the highest administrative agency for interpreting and applying immigration laws. It is part of the U.S. Department of Justice.
The BIA hears appeals from decisions by immigration judges and, in some cases, Department of Homeland Security (DHS) officials.2
It does not hear appeals of decisions made by the U.S. Citizenship and Immigration Services (USCIS), which must be usually appealed to the Administrative Appeals Office (AAO).
The Board of Immigration Appeals is located in Falls Church, Virginia, which is within the metropolitan Washington, D.C. area. However, appellants do not need to appear in person.
The Board of Immigration Appeals can review most decisions of immigration judges (other than credible fear and reasonable fear determinations).
Matters the BIA can review include, without limitation:
- Removal, deportation, and exclusion orders (with some limitations on decisions involving voluntary departure);3
- Withholding of removal / deportation,
- Exclusion of aliens applying for admission to the U.S.,
- Petitions to classify the status of alien relatives for the issuance of preference immigrant visas,
- Motions to reopen and reconsider prior decisions, and
- Denial of bond or parole.
The BIA also hears appeals of Department of Homeland Security (DHS) decisions concerning:
- Family-based immigrant petitions,
- Waivers of inadmissibility,4 and
- Some DHS administrative fines and penalties.
During the immigration court process, the immigration judge will render a decision. Both the government and the immigrant have the right to appeal it.
If the judge renders an unfavorable decision at the hearing, he or she will ask if the immigrant wishes to appeal the ruling. If the immigrant does not want to appeal, the government can begin the deportation process immediately (in a removal case).
If the immigrant thinks he or she would like to appeal the immigrant should tell the judge he or wishes to appeal. Or the immigrant can simply tell the judge that he or she wishes to reserve the right to appeal.
Either party may appeal the immigration judge’s decision to the BIA within 30 calendar days of the immigration judge’s decision. The Notice of Appeal (along with payment or a waiver request) must actually be RECEIVED by the BIA within this 30-day period — not just postmarked.
Because they are calendar days, and not business days, weekends and holidays count for purposes of calculating the 30-day period.
However, if the deadline falls on a weekend or a legal holiday, the due date is the next business day.
To be safe, it is best to send the Notice by overnight delivery or certified mail well in advance of the deadline.
The U.S. Department of Justice maintains a list of pro bono legal service providers.
Pro bono lawyers are those who have committed to provide at least 50 hours per year of free legal services in the immigration courts where their offices are located.
You may also be able to find a free or low-cost lawyer through your local bar association.
Immigrants also have the right to represent themselves (though this is not recommended). For further information, see the Board of Immigration Appeals Practice Manual.