Cite as 25 I&N Dec. 45 (BIA 2009) Interim Decision #3648
45
Matter of A-W-, Applicant
Decided June 30, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The Attorney General has not delegated authority to Immigration Judges, under 8 C.F.R.
§ 1236.1(d) (2009), to redetermine the conditions of custody imposed by the Department
of Homeland Security with respect to aliens who have not been issued and served with a
Notice to Appear (Form I-862) in relation to removal proceedings pursuant to 8 C.F.R.
Part 1240 (2009).
(2) An alien admitted to the United States pursuant to the Visa Waiver Program who has not
been served with a Notice to Appear pursuant to 8 C.F.R. Part 1240 is not entitled to a
custody hearing before an Immigration Judge under 8 C.F.R. § 1236.1(d). Matter
of Gallardo, 21 I&N Dec. 210 (BIA 1996), superseded.
FOR APPLICANT: Darryl L. Wynn, Esquire, New York, New York
BEFORE: Board Panel: PAULEY, ADKINS-BLANCH, and WENDTLAND, Board
Members.
PAULEY Board Member:
In a decision dated January 29, 2009, an Immigration Judge denied the
applicant’s request for a change in custody status, finding that he lacked
jurisdiction to set bond. The applicant has appealed from that decision. The
appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The applicant was placed in asylum-only proceedings as a Visa Waiver
Program violator pursuant to a Notice of Referral to Immigration Judge
(Form I-863) dated December 9, 2008. He filed a motion to request a bond
redetermination hearing on December 15, 2008, seeking to have a bond set.
The Government opposed the motion, asserting that the Immigration Judge
lacked jurisdiction because the applicant was admitted pursuant to the Visa
Waiver Program and was in asylum-only proceedings. Cite as 25 I&N Dec. 45 (BIA 2009) Interim Decision #3648
1 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.
2 Under 8 C.F.R. § 1003.14(a) (2009), a Notice to Appear is not required to be filed with
the immigration court to commence bond proceedings pursuant to 8 C.F.R. §§ 1003.19,
1236.1(d), and 1240.2(b) (2009). Bond determinations under 8 C.F.R. § 1003.19 are
those made by the DHS pursuant to 8 C.F.R. Part 1236. See 8 C.F.R. § 1003.19(a). As
noted above, 8 C.F.R. § 1236.1(d) relates solely to aliens in removal proceedings under
(continued…)
46
On March 5, 2009, the Immigration Judge prepared a bond memorandum
setting forth the reasons for his decision. In finding that he lacked jurisdiction
to decide the applicant’s request for a bond redetermination hearing, the
Immigration Judge noted the applicant’s reliance on Matter of Gallardo,
21 I&N Dec. 210 (BIA 1996). In that case we held that an alien in deportation
proceedings who was admitted pursuant to the Visa Waiver Program and had
applied for asylum could request a bond redetermination hearing before an
Immigration Judge. The Immigration Judge found that our decision has been
superseded by the regulations at 8 C.F.R. § 1208.2(c) (2009), which limit the
scope of an Immigration Judge’s review in asylum-only proceedings.1
II. ANALYSIS
On appeal the applicant argues that the regulations do not limit the
authority of the Immigration Judge to conduct a bond redetermination hearing
in his case. It is well established, however, that the Immigration Judges only
have the authority to consider matters that are delegated to them by the
Attorney General and the Immigration and Nationality Act. See 8 C.F.R.
§ 1003.10(b) (2009); see also Matter of D-J-, 23 I&N Dec. 572, 575 (A.G.
2003); Matter of Cazares, 21 I&N Dec. 188, 193 (BIA 1996, 1997; A.G.
1996). In the context of custody proceedings, an Immigration Judge’s
authority to redetermine conditions of custody is set forth in 8 C.F.R.
§ 1236.1(d) (2009). The regulations only provide Immigration Judges with
authority to redetermine the conditions of custody imposed by the Department
of Homeland Security (“DHS”) with respect to aliens against whom an arrest
warrant has been issued in conjunction with the service of a Notice to Appear
(Form I-862) relating to removal proceedings pursuant to 8 C.F.R. Part 1240
(2009).2
See 8 C.F.R. §§ 1236.1(a)-(d). Thus, Immigration Judges have onlyCite as 25 I&N Dec. 45 (BIA 2009) Interim Decision #3648
(…continued)
8 C.F.R. Part 1240. Similarly, 8 C.F.R. § 1240.2(b) relates to the assignment of a DHS
attorney in removal proceedings under 8 C.F.R. Part 1240. Thus, 8 C.F.R. § 1003.14(a) is
designed to give aliens who have been served with a Notice to Appear relating to removal
proceedings under 8 C.F.R. Part 1240 and who have been taken into custody pursuant to a
warrant of arrest issued in conjunction with the Notice to Appear an opportunity to seek
release from custody before an Immigration Judge prior to the filing of the Notice to Appear
with an immigration court. It also provides for the assignment of an attorney by the DHS
at such a bond hearing.
3 The authority of an Immigration Judge to redetermine the conditions of custody of aliens
in removal proceedings under 8 C.F.R. Part 1240 is further circumscribed by 8 C.F.R.
§ 1003.19(h)(2)(i). However, in limited circumstances not applicable to this matter, an
Immigration Judge does have authority to redetermine the conditions of custody of aliens
subject to final orders of removal as provided in 8 C.F.R. § 1241.14 (2009).
47
been granted authority to redetermine the conditions of custody of aliens who
have been issued and served with a Notice to Appear in relation to removal
proceedings pursuant to 8 C.F.R. Part 1240.3
The applicant is not in removal proceedings under 8 C.F.R. Part 1240 and,
as a matter of law, may not be put in removal proceedings pursuant to those
regulations. Matter of Kanagasundram, 22 I&N Dec. 963 (BIA 1999). Thus,
the Immigration Judge has not been granted authority to redetermine the
conditions of the applicant’s custody under 8 C.F.R. § 1236.1(d).
In this regard, we find that our decision in Matter of Gallardo, 21 I&N Dec.
210, is inapplicable to this case. The alien in Gallardo was in deportation
proceedings commenced by the filing of an Order to Show Cause and Notice
of Hearing (Form I-221), and the Immigration Judge had authority to
redetermine the conditions of custody of aliens in deportation proceedings
under 8 C.F.R. § 242.2(d) (1995), the custody regulation applicable to aliens
in deportation proceedings at that time. The applicant, however, is in
asylum-only proceedings that were commenced with the filing of a Form I-863
with the immigration court. See 8 C.F.R. §§ 217.4(b)(1), 1208.2(c)(1)(iv)
(2009); see also Matter of Kanagasundram, 22 I&N Dec. 963. The applicable
custody regulation at 8 C.F.R. § 1236.1(d) does not confer general custody
jurisdiction over his case on the Immigration Judge in this matter. Indeed, as
the Immigration Judge correctly stated, his authority over the applicant is now
expressly limited to a determination whether the applicant is eligible for
asylum or withholding of removal. See 8 C.F.R. § 1208.2(c)(3)(i).
Moreover, the statutory authority for the applicant’s detention is contained
in section 217(c)(2)(E) of the Act, 8 U.S.C.A. § 1187(c)(2)(E) (West Supp.
2008), not section 236 of the Act, 8 U.S.C. § 1226 (2006). The authority to
detain the applicant has been transferred to the Secretary of Homeland SecurityCite as 25 I&N Dec. 45 (BIA 2009) Interim Decision #3648
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pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135, which created the Department of Homeland Security and assigned or
transferred to the Secretary of Homeland Security many of the functions
previously exercised by the Attorney General. See id. tit. IV, § 441, 116 Stat.
at 2192; see also 6 U.S.C. § 251 (2006). We note in this regard that the
references to the Attorney General in section 217 of the Act now refer to the
Secretary of Homeland Security. See id. tit. XV, § 1517, 116 Stat. at 2311;
see also 6 U.S.C. § 557 (2006). Because the Attorney General no longer has
authority over bond proceedings relating to aliens, like the applicant, who have
been admitted pursuant to the Visa Waiver Program, he cannot delegate any
such authority to the Immigration Judge.
In sum, we concur with the Immigration Judge that our holding in
Matter of Gallardo, 21 I&N Dec. 210, which stated that an alien
admitted pursuant to the Visa Waiver Program is eligible to obtain a bond
redetermination by an Immigration Judge, has been superseded by regulation.
See 8 C.F.R. § 1208.2(c). Based on the current statutory and regulatory
scheme, we conclude that the Immigration Judge properly determined that he
lacked jurisdiction to redetermine the conditions of the applicant’s custody.
Accordingly, the applicant’s appeal will be dismissed.
ORDER: The appeal is dismissed.