Asking a Judge to Reconsider Immigration Custody

Detention in an immigration case is decided twice by different decision-makers. The arresting agency makes the first call, choosing between continued custody, release on bond and release on conditions. An immigration judge can then be asked to look at custody again. The second look is not an appeal of the first; it is a fresh decision, made on whatever the parties put in front of the judge.

How the request is made

An initial request for redetermination may be made orally, in writing, or, at the judge's discretion, by telephone. There is no required form and no filing fee. In a detained court the request is often made at the first appearance, in a single sentence, and the hearing is then set within days.

Where the request goes matters. The regulation lists three offices in order: the court with jurisdiction over the place of detention; failing that, the court with administrative control over the case; and failing that, the Office of the Chief Immigration Judge, which designates an appropriate court. In practice this means that the court hearing custody is the one nearest the facility, which is not necessarily the court where the removal case is docketed.

That split matters when a person is moved. A transfer changes the facility and can change which court hears custody, a mechanism described in detained docket transfers and where a case lands.

Why it is a separate proceeding

The regulation is explicit that consideration of custody is separate and apart from, and forms no part of, any removal proceeding. Two consequences follow. The first is that a custody record is built and kept independently, with its own exhibits and its own decision. The second is that findings made about custody do not decide anything about removability or relief.

The separation also cuts the other way. A judge who denies release is not thereby deciding that the removal case will fail, and a judge who orders release is not signaling that relief will be granted. The two questions are answered on different standards and different evidence.

What the judge may consider

The evidentiary rule here is unusually wide. The determination may be based upon any information that is available to the judge or that is presented by either party. There is no exclusion of hearsay, no authentication requirement, and no bar on documents that would be inadmissible in a trial court.

In practice both sides use that latitude. The government produces arrest records, criminal history printouts and any prior failures to appear. The person produces letters from relatives and employers, proof of a stable address, evidence of a sponsor willing to take responsibility, tax filings, medical records and evidence of rehabilitation where a conviction is in the file. The person seeking release carries the burden of persuading the judge that release is warranted.

Because the standard of admissibility is so loose, weight rather than admissibility is where the argument happens. A police report describing an arrest that never produced a charge will be admitted, and the useful response is not an objection but context: the disposition, the absence of any conviction, and what the record actually shows. The same is true of an old removal order or a missed appointment years earlier.

Documents carry more weight when they are specific and verifiable. A sponsor letter naming an address, describing the room the person would occupy and attaching a lease or a utility bill does more than a general statement of support. A letter that explains how the person will physically get to a hearing in a distant court answers the question the judge is actually asking.

What a decision looks like

The determination is entered on the appropriate form at the time it is made, and the parties are informed of the reasons orally or in writing. Judges frequently give reasons from the bench and issue a short written order, with a fuller memorandum prepared only if an appeal is taken.

Where release is ordered, the judge sets the amount and any conditions. Where release is denied, the order records that outcome and the reasons behind it. Either party may appeal to the Board of Immigration Appeals, and an appeal by the government can suspend a release order before it takes effect, a mechanism set out in bond appeals and the automatic stay the government can invoke.

The detaining agency also has a continuing obligation while proceedings are pending. It must promptly advise the court with administrative control over the record of any change in the person's custody location, any release from custody, and any subsequent return to custody, in writing and with the current street address.

When the judge cannot help

Some categories are placed outside the judge's redetermination authority altogether. The regulation lists them, and they include people in exclusion proceedings, arriving noncitizens in removal proceedings including those paroled after arrival, those described in the security and terrorism-related deportability grounds, and those subject to the mandatory detention provision. For anyone in those groups, a custody request to the judge cannot succeed on the merits.

There is a narrow but important exception written into the same paragraph. Nothing in it prevents asking a judge to determine that the person is not properly included within one of those categories. That is a separate hearing about classification rather than about release, and it is the subject of detention that no bond hearing can reach.

Where redetermination is available, the substance of the hearing turns on two findings the judge must make about danger and about the likelihood of appearing, which are worked through in bond amounts, flight risk and danger findings. Because the classification question and the merits question are usually argued in the same sitting, someone in a category that may or may not apply is often better served by a custody redetermination attorney who can present both arguments in the alternative.