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BIA: IJ lacks jurisdiction to consider bond for person admitted through Visa Waiver Program and in asylum-only proceedings

The BIA recently issued a published decision in which it held that an Immigration Judge lacks jurisdiction to consider a bond request from a person admitted through the Visa Waiver Program and who sought asylum and withholding of removal upon being detained by DHS.  See 8 C.F.R. § 1208.2(c).  Matter of Werner, 25 I&N Dec. at 48.  In a footnote, the BIA explained its understanding of the relevant regulations:

“According to 8 C.F.R. § 1208.2(c)(1)(iv), Immigration Judges have exclusive jurisdiction over asylum applications filed by aliens who have been admitted pursuant to the Visa Waiver Program. However, 8 C.F.R. § 1208.2(c)(3)(i) provides that the Immigration Judge’s scope of review under that section is ‘limited to a determination of whether the alien is eligible for asylum . . . and whether asylum shall be granted in the exercise of discretion.’ The regulation further states that ‘[d]uring such proceedings, all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.’ Id.”  Matter of Werner, 25 I&N Dec. at 46 n.1.

The BIA held that IJs have authority to hear bond requests for individuals who have been issued a Notice to Appear (Form I-862) in relation to removal proceedings pursuant to 8 C.F.R. § 1240, but that they do not have authority to hear bond requests from individuals served with a Notice of Referral to Immigration Judge (Form I-863), as was served on Werner.   Matter of Werner, 25 I&N Dec. at 45, 46.

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