The Board of Immigration Appeals (BIA) has just issued a precedent decision, Matter of GARCIA-GARCIA, 25 I&N Dec. 93 (BIA 2009) Interim Decision #3657. The case involves the issue of whether an Immigration Judge is authorized to ameliorate a condition placed on an individual by the DHS when the individual is released from immigration custody.
The Department argued that 8 C.F.R. § 1236.1(d)(1) does not give an Immigration Judge authority to ameliorate the conditions placed by the DHS on an alien’s release from custody, and that pursuant to the regulation, the Immigration Judge is only authorized “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 Respondent countered with the argument in support of the IJ’s decision that the final sentence in 8 C.F.R. § 1236.1(d)(1) affords the Immigration Judge authority to ameliorate the terms of release imposed on an alien’s release by the DHS.
The Board ruled that:
(1) An Immigration Judge has authority under section 236(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(A) (2006), and 8 C.F.R. § 1236.1(d)(1) (2009) to review and consider whether to modify the conditions of release imposed on an alien by the Department of Homeland Security (“DHS”); and
(2) Where the respondent filed an application with the Immigration Judge to ameliorate the terms of release within 7 days of his release from custody by the DHS, the Immigration Judge had jurisdiction to review and modify the condition placed on the respondent’s release that he participate in the Intensive Supervision Appearance Program.