Cite as 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657
1 We acknowledge and appreciate the very helpful briefs submitted by the parties and
by amicus curiae, representing the American Immigration Lawyers Association.
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Matter of Hilario Antonio GARCIA-GARCIA, Respondent
File A088 889 863 – San Francisco, California
Decided October 14, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An Immigration Judge has authority under section 236(a)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(a)(2)(A) (2006), and 8 C.F.R. § 1236.1(d)(1) (2009)
to review and consider whether to modify the conditions of release imposed on an alien
by the Department of Homeland Security (“DHS”).
(2) Where the respondent filed an application with the Immigration Judge to ameliorate
the terms of release within 7 days of his release from custody by the DHS, the Immigration
Judge had jurisdiction to review and modify the condition placed on the respondent’s
release that he participate in the Intensive Supervision Appearance Program.
FOR RESPONDENT: Francisco Ugarte, Esquire, San Francisco, California
AMICUS CURIAE:1
Stephen W. Manning, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Cynthia A. Gutierrez, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, ADKINS-BLANCH, and WENDTLAND, Board
Members.
PAULEY, Board Member:
In a decision dated February 23, 2009, an Immigration Judge denied the
respondent’s request for a change in custody status pursuant to section 236(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2006). The
Immigration Judge issued a bond memorandum setting forth the reasons for
her bond decision on March 16, 2009. The Department of Homeland Security
(“DHS”) has appealed from the Immigration Judge’s decision. The appeal will
be dismissed.Cite as 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657
2 The respondent’s failure to appeal does not moot the case, as we are not bound by “case
or controversy” limitations applicable to Article III courts, and because the jurisdictional
question is an important and recurring one, we choose to decide it. See Matter of Luis,
22 I&N Dec. 747, 752-53 (BIA 1999).
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Guatemala, was not admitted
or paroled after inspection to the United States. He was arrested by the DHS
on January 29, 2009, as part of a fugitive alien operation. On the same day,
the respondent was placed in the Intensive Supervision Appearance Program
(“ISAP”), a program under which he was required to wear an electronic
monitoring device on his ankle and comply with certain reporting
requirements.
The respondent filed a motion for a custody redetermination hearing before
the Immigration Judge on February 4, 2009. He requested that he be allowed
to post a monetary bond as an alternative to his continued participation in the
ISAP. The Immigration Judge denied the respondent’s request for
amelioration of the terms of his release from DHS custody. In reaching her
decision, the Immigration Judge found that the regulation at 8 C.F.R.
§ 1236.1(d)(1) (2009) afforded her broad jurisdiction to consider more than
just the appropriate amount of bond. Nevertheless, the Immigration Judge
determined that the respondent did not meet his burden of proof to demonstrate
that he should be relieved of the conditions imposed by the DHS because
of the limited information he provided regarding his immigration history, the
existence of any family ties he has to the United States, any criminal record
he might have, and the likelihood of relief from removal being granted.
The DHS filed a timely appeal.2
On appeal, the DHS argues that the
Immigration Judge exceeded her authority under section 236(a) of the Act and
8 C.F.R. § 1236.1(d)(1) by considering whether the respondent had to continue
his participation in the ISAP.
II. ISSUE
The issue on appeal is whether the Immigration Judge had the authority
to consider whether to ameliorate the condition placed on the respondent’s
release from DHS custody that required him to participate in the ISAP.
On appeal, the DHS argues that 8 C.F.R. § 1236.1(d)(1) does not give the
Immigration Judge authority to ameliorate the conditions placed by the DHS
on an alien’s release from custody. Specifically, the DHS contends that
pursuant to the regulation, the Immigration Judge is only authorized “to detainCite as 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657
3 We note that the Attorney General affirmed our decision in this case on other grounds. See
Matter of Toscano-Rivas, 14 I&N Dec. at 550.
95
the alien in custody, release the alien, and determine the amount of bond,
if any, under which the respondent may be released.”
In response, the respondent argues that the DHS unreasonably
requests that we ignore the final sentence of 8 C.F.R. § 1236.1(d)(1), which
gives the Immigration Judge authority to ameliorate the terms of release
imposed on an alien’s release by the DHS. The amicus curiae brief filed
in support of the respondent’s position asserts that our decision
in Matter of Toscano-Rivas, 14 I&N Dec. 523 (BIA 1972, 1973; A.G. 1974),
is dispositive of this matter.3
III. STANDARD OF REVIEW
We review an Immigration Judge’s findings of fact, including findings
as to the credibility of testimony, only to determine if they are clearly
erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2009). Questions of law, discretion,
and judgment and all other issues in appeals from decisions of Immigration
Judges may be reviewed de novo. 8 C.F.R. § 1003.1(d)(3)(ii); see also Matter
of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
IV. ANALYSIS
The issue posed in this matter was raised but not resolved in our recent
precedent decision in Matter of Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009).
In that case we held that the Immigration Judge lacked jurisdiction to consider
the alien’s request for amelioration of the terms of his release following his
release from detention by the DHS with conditions requiring an electronic
monitoring device and home confinement because of his failure to file
an “application for amelioration of the terms of release” with the Immigration
Judge within 7 days of his release, as required by 8 C.F.R. § 1236.1(d)(1).
However, unlike the alien in Matter of Aguilar-Aquino, the record in this
matter reflects that the respondent filed an application for amelioration of the
terms of release within 7 days of his release from DHS custody. Therefore,
we must determine if the Immigration Judge had the authority to consider
whether to ameliorate the condition placed on the respondent’s release that
required him to participate in the ISAP.
Upon de novo review, we affirm the Immigration Judge’s decision.
We agree with the Immigration Judge’s determination that she had jurisdiction
to review and modify the condition placed on the respondent’s release from
DHS custody. Our analysis in this matter begins with 8 C.F.R. § 1236.1(d)(1),Cite as 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657
96
which gives the Immigration Judge jurisdiction over appeals from the custody
decisions made by the District Director. Specifically, the regulation provides
as follows:
After an initial custody determination by the district director, including the setting
of a bond, the respondent may, at any time before an order under 8 CFR part 1240
becomes final, request amelioration of the conditions under which he or she may
be released. Prior to such final order, and except as otherwise provided in this
chapter, the immigration judge is authorized to exercise the authority in section 236
of the Act (or section 242(a)(1) of the Act as designated prior to April 1, 1997 in the
case of an alien in deportation proceedings) to detain the alien in custody, release the
alien, and determine the amount of bond, if any, under which the respondent may
be released, as provided in § 1003.19 of this chapter. If the alien has been released
from custody, an application for amelioration of the terms of release must be filed
within 7 days of release.
Since the respondent was released from DHS custody and filed a motion for
a custody redetermination with the Immigration Judge within 7 days of his
release, the regulation provides that the Immigration Judge has jurisdiction
to consider an “application for amelioration of the terms of [the alien’s]
release” from DHS custody. We note that this portion of 8 C.F.R.
§ 1236.1(d)(1) does not provide any specific limits on the Immigration Judge’s
authority to ameliorate the terms placed by the DHS on an alien’s release from
custody. In essence, the language suggests that the Immigration Judge has
broad authority to review and modify the terms imposed by the DHS
on an alien’s release from custody.
However, the DHS argues that the Immigration Judge’s jurisdiction
is limited by the earlier statement in 8 C.F.R. § 1236.1(d)(1), which provides
that the Immigration Judge may “detain the alien in custody, release the alien,
and determine the amount of bond, if any, under which the respondent may
be released.” We conclude that the DHS’s reliance on this statement to limit
the Immigration Judge’s authority is misplaced. This particular sentence of the
regulation directly relates to the Immigration Judge’s authority regarding
review of the District Director’s decision to retain an alien in DHS custody,
not the portion of the regulation governing aliens who have been released from
DHS custody. See Matter of Aguilar-Aquino, 24 I&N Dec. at 750 (indicating
that 8 C.F.R. § 1236.1(d)(1) draws a distinction between aliens who are in the
custody of the DHS and those who have been released from DHS custody).
Furthermore, an interpretation of the regulation limiting the Immigration
Judge’s authority to ameliorate the terms of release imposed by the DHS
would be inconsistent with the language of section 236(a) of the Act.
See Trustees of Indiana Univ. v. United States, 618 F.2d 736, 739 (Ct. Cl.
1980) (stating that a regulation must be interpreted so as to harmonize with and
not to conflict with the objective of the statute it implements).Cite as 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657
4 At the time Matter of Toscano-Rivas was written, an “Immigration Judge” was referred
to as a “special inquiry officer.” For purposes of clarity in this decision, we will refer to the
“special inquiry officer” as an Immigration Judge.
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Section 236(a) of the Act provides, in pertinent part:
[T]he Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing
conditions prescribed by, the Attorney General; or
(B) conditional parole . . . .
(Emphasis added.) The plain language of section 236(a) gives the Attorney
General the authority, which is shared with the Secretary of Homeland
Security, to place conditions on an alien’s release from custody when setting
a monetary bond of at least $1,500. See Matter of D-J-, 23 I&N Dec. 572, 574
n.3 (A.G. 2003). We read the authority to place conditions on an alien’s
release on bond as conversely conferring the authority to order the removal
of a condition placed on an alien’s release by the DHS.
Our interpretation of 8 C.F.R. § 1236.1(d)(1) is further supported by our
prior precedent decision, Matter of Toscano-Rivas, 14 I&N Dec. 523, where
we held that the Immigration Judge4
had authority to review and modify the
conditions of a bond imposed by a District Director in a deportation
proceeding. In that case, the District Director had imposed on a group
of aliens a condition of bond that prohibited their unauthorized employment.
Upon review of that decision, the Immigration Judge reduced the bond amount
set by the District Director and removed the condition. The former
Immigration and Naturalization Service (now the DHS) appealed, arguing that
the Immigration Judge had no authority to delete the condition relating
to unauthorized employment because the District Director had the exclusive
right to impose conditions on bonds other than the actual amount of the bond.
In support of this position, it cited language under the regulation at 8 C.F.R.
§ 242.2(b) (1972), which provided that the Immigration Judge had the
authority to “determine whether a respondent shall be released under bond,
and the amount thereof.” We found that interpretation of 8 C.F.R. § 242.2(b)
to be “overly mechanical” and noted that 8 C.F.R. § 242.2(a) provided that
the District Director must advise a respondent “whether he may apply
to [an Immigration Judge] pursuant to paragraph (b) of this section for release
or modification of the conditions of release.” Matter of Toscano-Rivas,
14 I&N Dec. at 525.
Although the specific language of the regulations underlying our decision
in Matter of Toscano-Rivas has since changed, we find that our reasoningCite as 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657
98
remains applicable under the law currently in effect. Like 8 C.F.R. § 242.2(a),
section 236(a)(2)(A) of the Act clearly gives the Attorney General authority
to place conditions on an alien’s release from custody when setting a monetary
bond of at least $1,500. To read 8 C.F.R. § 1236.1(d)(1) as the DHS suggests
would produce results that are incompatible with the objective of the statute.
V. CONCLUSION
In light of the foregoing, we agree with the Immigration Judge that she had
authority under section 236(a)(2)(A) of the Act and the regulation at 8 C.F.R.
§ 1236.1(d)(1) to review and consider whether to modify the conditions
of release imposed by the DHS. Because the respondent has not appealed the
Immigration Judge’s decision denying the respondent’s request for removal
of the electronic monitoring device upon payment of a minimal bond, the
respondent remains subject to the ISAP and its reporting requirements.
Accordingly, the appeal will be dismissed.
ORDER: The appeal of the Department of Homeland Security
is dismissed.