Cite as 24 I&N Dec. 747 (BIA 2009) Interim Decision #3634
Matter of Jose AGUILAR-AQUINO, Respondent
File A095 748 786 – Los Angeles, California
Decided March 12, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) “Custody,” as the term is used in the regulation at 8 C.F.R. § 1236.1(d)(1) (2008) relating
to requests for amelioration of the terms of release from custody, requires actual physical
restraint or confinement within a given space.
(2) The respondent, who requested “amelioration of the terms of release” from an
Immigration Judge following his release from detention by the Department of Homeland
Security with conditions requiring an electronic monitoring device and home confinement,
was “released from custody” within the meaning of 8 C.F.R. § 1236.1(d)(1).
(3) The Immigration Judge lacked jurisdiction to consider the respondent’s request for
amelioration of the terms of his release under 8 C.F.R. § 1236.1(d)(1) where the
respondent had been “released from custody” more than 7 days prior to his request.
FOR RESPONDENT: Cynthia Lucas, Santa Monica, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jillian L. Woods, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, ADKINS-BLANCH, and WENDTLAND, Board
Members.
PAULEY, Board Member:
In a decision dated May 16, 2008, an Immigration Judge set the
respondent’s bond at $1,500 pursuant to section 236(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(a) (2006). The Immigration Judge further
ordered that upon posting the bond, the respondent would be relieved of the
obligations imposed by the Department of Homeland Security (“DHS”) that
he wear an electronic monitoring device and be subject to home confinement.
The DHS has appealed from that decision.1 The appeal will be sustained.
1 The respondent argues that the DHS’s appeal is moot because his removal proceedings
have been administratively closed. However, administrative closure does not constitute a
(continued…)
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico, entered the United States
without inspection in or about 1993. On February 14, 2008, the DHS issued
a Notice to Appear (Form I-862) charging that the respondent is subject to
removal under section 212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i)
(2006), as an alien who is present in the United States without being admitted
or paroled. On the same day, the DHS also issued a Notice of Custody
Determination (Form I-286) and an Order of Release on Recognizance (Form
I-220A) stating that the respondent was released on his own recognizance,
provided he complied with certain conditions. These conditions included
reporting for any hearing or interview as directed by the DHS or the Executive
Office for Immigration Review, surrendering for removal from the United
States if so ordered, reporting in person to the DHS on the 10th day of each
month at 10 a.m., not changing his place of residence without first securing
written permission, not violating any local, State, or Federal laws or
ordinances, and assisting the DHS in obtaining any necessary travel
documents. The respondent was also required to wear an electronic
monitoring device on his ankle as a part of the DHS’s Enhanced
Supervision/Reporting (“ESR”) program and to remain in his residence
between the hours of 7 p.m. and 7 a.m., but these requirements were not listed
on the Form I-220A.
On April 24, 2008, the respondent requested a redetermination of his
custody status before the Immigration Judge, asking that the electronic
monitoring device be removed and that he be released on his own
recognizance. The Immigration Judge granted the respondent’s motion for a
redetermination of custody status, set a bond of $1,500, and ordered that the
respondent’s ankle monitor be removed and home confinement be waived
upon his posting of the bond. In reaching her decision, the Immigration Judge
concluded that the ESR program is a form of “custody” within the meaning of
section 236 of the Act and the regulation at 8 C.F.R. § 1236.1(d)(1) (2008),
which gave her jurisdiction to redetermine the conditions on the respondent’s
custody status under section 236(a) at any time prior to the issuance of a final
order of removal.
(…continued)

final administrative order, so that action does not preclude us from having jurisdiction to

consider the DHS’s appeal. See 8 C.F.R. § 1236.1(d)(1) (2008).

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Cite as 24 I&N Dec. 747 (BIA 2009) Interim Decision #3634
II. ISSUE

The issue on appeal is whether the Immigration Judge had jurisdiction to
consider the respondent’s request for a redetermination of custody status. The
DHS argues that she lacked jurisdiction because the respondent was released
from DHS custody and did not request a bond hearing before an Immigration
Judge within 7 days of his release, in accordance with 8 C.F.R. § 1236.1(d)(1).
The DHS further asserts that even if the Immigration Judge had jurisdiction to
reconsider the respondent’s custody status, she lacked authority to redetermine
the conditions of his release, other than to determine the amount of bond.
The respondent contends that the Immigration Judge had jurisdiction to
redetermine his custody status because he was not released from the custody
of the DHS. Specifically, the respondent maintains that the conditions placed
upon his release from detention, in particular the requirements that he wear an
electronic monitoring device and remain under home confinement for 12 hours
each day, constitute a form of “custody.” The respondent further argues that
the Immigration Judge has the authority to redetermine the conditions of his
release beyond setting a monetary bond amount.
III. STANDARD OF REVIEW
We review an Immigration Judge’s findings of fact, including findings as
to the credibility of testimony, under the “clearly erroneous” standard.
8 C.F.R. § 1003.1(d)(3)(i) (2008); see also Matter of S-H-, 23 I&N Dec. 462,
464-65 (BIA 2002). Questions of law, discretion, and judgment and all other
issues in appeals from decisions of Immigration Judges are 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
Initially, we address the DHS’s argument that the Immigration Judge lacked
jurisdiction to redetermine the respondent’s custody status. In order to decide
whether the Immigration Judge had jurisdiction, we must consider whether the
restrictions imposed by the DHS upon the respondent’s release on his own
recognizance constitute “custody” within the meaning of section 236 of the
Act and 8 C.F.R. § 1236.1(d).
The guiding principles for construing administrative regulations are
similar to the rules governing statutory construction. See Matter of F-P-R-,
24 I&N Dec. 681, 683 (BIA 2008); Matter of C-W-L-, 24 I&N Dec. 346, 348
(BIA 2007). As with statutes, our fundamental concern in construing an
administrative regulation is “‘to effectuate the intent of the enacting body.’”
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See United States v. Christensen, 419 F.2d 1401, 1403 (9th Cir. 1969) (quoting
U.S. v. Miller, 303 F.2d 703, 707 (9th Cir. 1962)). Applying the standard
canons of statutory construction, we must begin with the premise that words
used in a regulation are to be given their plain and ordinary meaning. See
Malat v. Riddell, 383 U.S. 569, 571 (1966). Additionally, in determining the
meaning of a regulation, we consider the language of the regulation, its overall
purpose, and the practical consequences of any suggested interpretation. See
United States v. Christensen, supra, at 1403-04. Any ambiguities should be
resolved in favor of an interpretation consistent with the statutory and
regulatory scheme. See United Telecommunications, Inc. v. Comm’r, 589 F.2d
1383, 1390 (10th Cir.1978). Therefore, assuming that the regulations are
consistent with the statute, we must construe them to effectuate the intent of the
enacting body. See United States v. Christensen, supra, at 1403.
The regulation at 8 C.F.R. § 1236.1(d)(1) 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. (Emphasis added.)
With regard to the deadline for requesting a bond hearing before the
Immigration Judge, 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. Specifically, an alien may request a bond hearing “at any time”
to ameliorate the conditions under which he or she may be released from DHS
custody. An alien who has already been released from DHS custody, however,
must request a bond hearing to seek amelioration of the terms of his or her
release from custody before the Immigration Judge within 7 days of the release.
After the expiration of the 7-day period, the alien must request review of the
terms of release from the district director. See 8 C.F.R. § 1236.1(d)(2).
Neither the Act nor the regulations specifically define the term “custody,”
so we must start with the “‘ordinary or natural’ meaning” of the term. Bailey
v. United States, 516 U.S. 137, 145 (1995) (quoting Smith v. United States, 508
U.S. 223, 228 (1993)). “Custody” has been broadly defined as “[t]he care and
control of a thing or person for inspection, preservation, or security.” Black’s
Law Dictionary 412 (8th ed. 2004). Other more specific definitions for
“custody” include (1) “keeping; guardianship; care”; (2) “the keeping or charge
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of officers of the law”; and (3) “imprisonment; legal restraint.” The Random
House Dictionary of the English Language (unabridged ed. 1973). It is evident
from these definitions that the term “custody” has multiple meanings and can
be interpreted differently depending on the situation in which it is used.
We next look to the statutory language and legislative history of section
236(a) of the Act for guidance as to the meaning of the term “custody.” Section
236 of the Act was enacted substantially in its present form by section 303 of
the Illegal Immigration Reform and Immigration Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-585 (“IIRIRA”).
In drafting section 236(a) of the Act, Congress was guided by the language of
former section 242(a)(1) of the Act, 8 U.S.C. § 1252(a)(1) (1994). However,
a comparison of the language used in sections 236(a) and 242(a)(1) of the Act
reveals that Congress substituted the term “detain” where the term “custody”
had previously been employed.2
Nevertheless, the Conference Committee
Report for the IIRIRA noted that “[n]ew section 236(a) restates the current
provisions in section 242(a)(1) regarding the authority of the Attorney General
to arrest, detain, and release on bond an alien who is not lawfully in the United
States.” H.R. Rep. No. 104-828, at 210 (1996) (Conf. Rep.), 1996 WL 563320.
Thus, it appears that Congress did not intend any meaningful change to the
scope of the Attorney General’s previous authority under new section 236(a)
of the Act, despite the substitution of the term “custody” for the term “detain.”
2 Former section 242(a)(1) of the Act provided, in pertinent part:
Pending a determination of deportability in the case of any alien as provided in
subsection (b) of this section, such alien may, upon warrant of the Attorney General,
be arrested and taken into custody. . . . [A]ny such alien taken into custody may, in the
discretion of the Attorney General and pending such final determination of
deportability, (A) be continued in custody; or (B) be released under bond in the
amount of not less than $500 with security approved by the Attorney General,
containing such conditions as the Attorney General may prescribe; or (C) be released
on conditional parole. (Emphasis added.)

Section 236(a) of the Act provides, in pertinent part:
On a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the United
States. . . . [P]ending such decision, the 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; but
(3) may not provide the alien with work authorization . . ., unless the alien is
lawfully admitted for permanent residence or otherwise would . . . be provided
such authorization. (Emphasis added.)
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We therefore find that Congress used the terms “custody” and “detain”
interchangeably and did not intend for them to be afforded different meanings.
In this regard, we also observe that section 236(c) of the Act, which is entitled
“Detention of Criminal Aliens,” employs the term “custody” in requiring that
the Attorney General “take into custody” aliens who have committed certain
criminal offenses.
Although it appears that Congress did not make a distinction between the
terms “custody” and “detain” in section 236 of the Act, the interpretation of
these two terms can vary significantly. They do, however, share some common
meaning. In this regard, we recognize that both a person who has been released
on parole and one who remains incarcerated can be considered to be in
“custody.” On the other hand, the term “detain” generally refers to actual
physical restraint or confinement within a given space and has been defined as
“[t]he action of detaining, withholding, or keeping something in one’s custody”
or “confinement of a person in custody.” Black’s Law Dictionary, supra, at
479-80. Therefore, although a person who is in custody is not necessarily in
detention, one who is in detention is necessarily in custody. With this
understanding, we find that the term “custody” as it is used in 8 C.F.R.
§ 1236.1(d)(1) refers to actual physical restraint or confinement within a given
space. See Matter of Sanchez, 20 I&N Dec. 223, 225 (BIA 1990) (requiring
that an alien be in the “actual physical custody” of the former Immigration and
Naturalization Service for bond jurisdiction to vest with the Immigration
Judge).
In reaching her decision that the respondent remained in the “custody” of
the DHS while under the ESR program, the Immigration Judge relied on the
interpretation of the term “custody” employed under the Federal habeas corpus
statute. See Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., Santa
Clara County, Cal., 411 U.S. 345 (1973) (holding that the restraints imposed
on a petitioner who was released on his own recognizance constituted
“custody” within the meaning of the Federal habeas corpus statute); Jones
v. Cunningham, 371 U.S. 236, 243 (1963) (holding that a paroled prisoner was
in “custody” in view of the restraints and conditions of his parole order).
However, we find that Congress did not intend the term “custody” in section
236 of the Act to be afforded the broad interpretation employed in the Federal
habeas corpus statute, where it is interpreted expansively to ensure that no
person’s imprisonment or detention is illegal. See 28 U.S.C. § 2241 (2006)
(providing that a writ of habeas corpus may be granted “to a prisoner . . . in
custody in violation of the Constitution . . . of the United States”). In this
regard, we note that a writ of habeas corpus may only be granted to a person
who is in “custody.” As it is used in 8 C.F.R. § 1236.1(d)(1), however,
“custody” refers to whether the Immigration Judge or the district director has
jurisdiction for purposes of review of the DHS’s initial custody determination.
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Regardless of whether an alien is in custody or has been released from custody,
review of the DHS’s custody determination is available under the regulation.
Because the DHS released the respondent from actual physical detention,
we find that he was “released from custody” within the meaning of 8 C.F.R.
§ 1236.1(d)(1). The conditions placed by the DHS on the respondent’s release,
including the home confinement and electronic monitoring device, constituted
“terms of release” and were not “custody” within the meaning of section
236(a) of the Act and 8 C.F.R. § 1236.1(d)(1). Our conclusion is consistent
with the cases cited by the DHS, which hold that home confinement and
requiring a person to wear an electronic monitoring device do not constitute
“detention.” See Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 926 & n.1 (9th
Cir. 1993) (holding that home confinement combined with electronic
monitoring does not constitute “official detention”); Nguyen v. B.I. Inc., 435
F. Supp. 2d 1109, 1114 (D. Ore. 2006) (finding that placement in the DHS’s
Intensive Supervision Appearance Program, which requires an alien to wear an
electronic monitoring device on his ankle and remain under home confinement
for 12 hours each day, is not “detention”).
Under 8 C.F.R. § 1236.1(d)(1), the respondent, who was not detained, had
7 days in which to request a bond hearing before the Immigration Judge.
Because the respondent did not request a bond redetermination hearing within
7 days of his release from custody, the Immigration Judge lacked the authority
to redetermine his custody status. Inasmuch as we find that the Immigration
Judge lacked jurisdiction in this matter, we need not reach the DHS’s
alternative argument regarding the Immigration Judge’s authority to set
conditions beyond the establishment of a monetary bond. Accordingly, the
DHS’s appeal will be sustained, and the Immigration Judge’s order will be
vacated.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The decision of the Immigration Judge is vacated.
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