In re X---- K----, Interim Decision Number 3510
| Citation | 23 I&N Dec. 731 |
| Decision Date | 04 May 2005 |
| Docket Number | Interim Decision Number 3510 |
| Parties | In re X---- K----, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
This is one of several appeals filed by the Department of Homeland Security ("DHS") in which it contends that Immigration Judges lack jurisdiction to redetermine the custody status of aliens in the respondent's circumstances. The DHS argues that an alien who has initially been considered for removal under the expedited removal proceedings of section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1) (2000), as a member of the class of aliens designated pursuant to the authority in section 235(b)(1)(A)(iii), but who has been placed in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2000), following a positive credible fear determination, remains under its exclusive custody jurisdiction pursuant to section 235(b)(1) of the Act and is not eligible for a bond redetermination hearing before an Immigration Judge.1 We disagree.
Immigration Judges have custody jurisdiction over aliens in section 240 removal proceedings, with specifically designated exceptions. See 8 C.F.R § 1236.1(c)(11)(2004). The regulations at 8 C.F.R. § 1236.1(d) provide that after the DHS has made an initial custody determination, a respondent in section 240 removal proceedings may seek a change in custody status at any time before he is subject to a final removal order. The regulation specifically states that until there is a final removal order in the section 240 removal proceedings, Immigration Judges have jurisdiction "to exercise the authority in section 236 of the Act . . . to detain the alien in custody, release the alien, and determine the amount of bond . . . as provided in § 1003.19." 8 C.F.R. § 1236.1(d)(1). Specific classes of aliens that are excluded from the Immigration Judges' general custody jurisdiction are listed in 8 C.F.R. § 1003.19(h)(2)(i) (2004). However, that list does not include aliens, such as the respondent, who have been placed in section 240 removal proceedings after having been initially screened and detained for expedited removal as "certain other aliens" pursuant to the authority in section 235(b)(1)(A)(iii) of the Act.
The DHS maintains that such aliens remain within its exclusive custody jurisdiction because of their status as aliens who originally came into its custody for processing under section 235 expedited removal proceedings. By way of background, the DHS, through the authority granted at section 235(b)(1)(A) of the Act, may screen two classes of aliens for expedited removal: "arriving aliens," as defined in 8 C.F.R. § 1001.1(q) (2004), and "certain other aliens," as designated by the Secretary of Homeland Security in his discretion.2 See sections 235(b)(1)(A)(i), (iii)(I) of the Act; 8 C.F.R. §§ 1235.3(b)(1)(i), (ii) (2004). There is no question that Immigration Judges lack jurisdiction over arriving aliens who have been placed in section 240 removal proceedings, because they are specifically listed at 8 C.F.R. § 1003.19(h)(2)(i)(B) as one of the excluded categories.
The class of aliens who are subject to expedited removal under section 235(b)(1) as "certain other aliens" is designated by the Secretary of Homeland Security by the publication of a notice in the Federal Register. See 8 C.F.R. § 1235.3(b)(1)(ii). Pursuant to his statutory and regulatory authority, the Secretary of Homeland Security, on August 11, 2004, published such a notice designating the class of "certain other aliens" as follows:
Aliens who are inadmissible under sections 212(a)(6)(C) or (7) of the Act, who are physically present in the U.S. without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, who are encountered by an immigration officer within 100 air miles of any U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of encounter.
Notice Designating Aliens For Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004). For purposes of deciding the legal issue before us, we will assume that the respondent falls within the designated class as claimed by the DHS.3
As a general matter, the Act provides for the immediate removal, without further review, of aliens who are subject to section 235(b)(1) expedited removal proceedings. Section 235(b)(1)(A)(i) of the Act; see also 8 C.F.R. § 1235.3(b)(2)(ii). However, where, as here, an alien has either indicated a desire to apply for asylum or has expressed a fear of persecution, the alien may not be immediately removed and must be referred to an asylum officer for a credible fear interview. Sections 235(b)(1)(A)(i), (ii) of the Act; 8 C.F.R. § 1235.3(b)(4).
In this case, the asylum officer determined that the respondent demonstrated a credible fear of persecution and complied with the regulatory requirement of issuing a Notice to Appear (Form I-862) for full consideration of the respondent's asylum and withholding of removal claims in section 240 removal proceedings. 8 C.F.R. § 1208.30(f) (2004). There is no authority to issue a Notice and Order of Expedited Removal (Form I-860) in these circumstances.
In cases where the asylum officer determines that the alien does not have a credible fear, the alien may request review of the negative credible fear determination with an Immigration Judge in proceedings under 8 C.F.R. § 1208.30(g). In such cases, the alien is served with a Notice of Referral to Immigration Judge (Form I-863). In these proceedings, the Immigration Judge's jurisdiction is limited to review of the asylum officer's negative credible fear determination. 8 C.F.R. § 1208.30(g). If the Immigration Judge agrees with the asylum officer that the respondent has not established a credible fear, the expedited removal order is given effect. If the Immigration Judge finds that a credible fear has been established, however, the expedited removal order is vacated, and if the alien is not a stowaway, the DHS may initiate section 240 removal proceedings in which the alien may apply for asylum and withholding. 8 C.F.R. § 1208.30(g)(2)(iv)(B).
Therefore, once there is a final positive credible fear determination, whether that determination became final upon the asylum officer's initial positive credible fear determination, or upon the Immigration Judge's reversal of a negative one, an alien is no longer subject to a section 235(b)(1) expedited removal order.
The Act provides for the mandatory detention of aliens who are being processed under section 235(b)(1) proceedings "pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed." Section 235(b)(1)(B)(iii)(IV) of the Act (emphasis added). The regulations also provide that pending the final credible fear determination, the DHS has the authority to grant parole under section 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5) (2000), in certain limited circumstances. 8 C.F.R. §§ 1212.5(a), (b), 1235.3(b)(4)(ii) (2004).4
However, the expedited removal provisions in section 235(b)(1) of the Act and its implementing regulations provide no specific guidance regarding the custody jurisdiction over an alien in the "certain other aliens" class after there has been a final determination that the respondent has a credible fear and section 240 proceedings have been initiated. Indeed, the language in the Act itself does not require that such aliens be placed in full section 240 removal proceedings. However, there is legislative history suggesting that this comports with the intent of Congress. See H.R. Conf. Rep. No. 104-828, at 209 (1996) . The requirement that aliens who had initially been screened for expedited removal be placed in full section 240 removal proceedings after a final positive credible fear determination is clearly stated in the regulations. See 8 C.F.R. §§ 1208.30(f), 1235.6(a) (2004).
The DHS argues that notwithstanding the fact that the respondent is now in "normal non-expedited removal proceedings" under section 240 of the Act and thus cannot have an expedited removal order entered against him, even if he does not prevail on his applications for relief, it nonetheless retains exclusive custody jurisdiction over the respondent. The Act is silent, the legislative history suggests otherwise, and we are not persuaded that there is regulatory authority for the DHS's position that such aliens are not eligible for a bond hearing before an Immigration Judge. H.R. Conf. Rep. No. 104-828, at 209.
As discussed earlier, the regulations allow Immigration Judges to exercise the general custody authority of section 236 of the Act, 8 U.S.C. § 1226 (2000),...
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