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BIA: IJ may ameliorate conditions of release imposed by DHS

In a precedential decision released yesterday, the Board of Immigration Appeals held that an Immigration Judge has authority to alter the conditions of release imposed by the DHS district director. 8 C.F.R. § 1236.1(d)(1) requires that an application for amelioration of the terms of release to be filed within 7 days of release. Matter of Garcia-Garcia, 25 I&N Dec. at 96. Section 1236.1(d)(1) provides:

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.

The BIA found that Garcia-Garcia filed his application within 7 days.

Second, the BIA held that § 1236.1(d)(1) does not limit the IJ’s authority to ameliorate the terms of release imposed by DHS. “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.” Matter of Garcia-Garcia, 25 I&N Dec. at 96.

The BIA rejected DHS’s argument that the IJ’s authority is limited by the earlier sentence in § 1236.1(d)(1) that allows an IJ “to detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released.” The BIA concluded that this sentence governs an IJ’s review of non-citizens who remain in custody; it does not govern where DHS has released a non-citizen from custody. Matter of Garcia-Garcia, 25 I&N Dec. at 96.

The BIA also rejected DHS’s argument based on its interpretation of INA § 236(a). According to the BIA, § 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. 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.” Matter of Garcia-Garcia, 25 I&N Dec. at 97 (internal citations omitted). That is, just like the IJ may impose conditions of release, the IJ may remove conditions of release imposed by DHS.

This decision is obviously good news in that it extends discretion to IJs where DHS has released a non-citizen under certain conditions. However, it also provides an additional subtle bit of good news in that the BIA interpreted electronic ankle bracelets and reporting requirements to constitute release from custody.

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