U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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C -H , A S OHS/ICE Office of Chief Counsel - EAZ
Eloy Detention Ctr, 1705 E. Hanna Rd
c/o ICE Eloy, AZ 85131
1705 E HANNA RD
ELOY, AZ 85131

Name: C -H , A S A

Date of this notice: 7/5/2017

Enclosed is a copy of the Board's decision in the above-referenced case. If the attached
decision orders that you be removed from the United States or affirms an Immigration Judge's
decision ordering that you be removed, any petition for review of the attached decision must
be filed with and received by the appropriate court of appeals within 30 days of the date of
this decision.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: A-S-C-H-, AXXX XXX 196 (BIA July 5, 2017)

. ..

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U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A Eloy, AZ Date:

JUL - 5 2017
In re: A S C -H

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Pro se

ON BEHALF OF OHS: Jeremy Martinez

Assistant Chief Counsel

APPLICATION: Change in custody status

The applicant, a native and citizen of Mexico appeals the April 6, 2016, bond order of the
Immigration Judge denying his request for a redetennination of his custody status pursuant to
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (Rodriguez Ill), cert. granted sub nom.
Jennings v. Rodriguez, 84 U.S.L.W. 3562 (U.S. June 20, 2016) (No. 15-1204), for lack of
jurisdiction. The Department of Homeland Security (OHS) has filed a brief opposing the appeal.
The record will be remanded for further proceedings.

The Board reviews an Immigration Judge's findings of fact under the "clearly erroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i); Matter ofS-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). The
Board reviews questions of law, discretion, and judgment - and all other issues in appeals from
decisions of Immigration Judges-de novo. 8 C.F.R. 1003.l(d)(3)(ii).

The Immigration Judge determined that he lacked jurisdiction to conduct a custody

redetermination hearing because the respondent has been found to be an alien described in section
237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(4)(D), which aliens are
excluded from the Immigration Judge's custody jurisdiction. See 8 C.F.R. 1003.19(h)(2)(i)(C)
(An immigration judge may not redetermine conditions of custody described in section
237(a)(4)(D) of the Act). The OHS argues in its responsive brief that in addition to the foregoing
reason for denying the applicant's request for redetermination of his custody status, the
Immigration Judge also lacked jurisdiction to consider the applicant's request to be released from
custody because an Immigration Judge's authority to redetermine custody conditions is limited to
aliens who have been issued a Notice to Appear and placed in removal proceedings under section
240 of the Immigration and Nationality Act, 8 U.S.C. 1229a. See Matter ofA-W-, 25 I&N Dec.
45, 46-47 (BIA 2009); 8 C.F.R. 1003.19, 1236.l(d)(l). There is no dispute that the applicant
here is not in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, but instead is in
Withholding-Only proceedings following reinstatement of a prior removal order pursuant to
section 24l(a)(5) of the Act, 8 U.S.C. 123l(a)(5), and issuance of a Notice of Referral.

We note that the OHS has not argued on appeal- and the Immigration Judge did not claim in
his bond memorandum- that the removal of individuals such as the applicant would not be stayed
pending judicial review of an application for withholding of removal. This is the central point

Cite as: A-S-C-H-, AXXX XXX 196 (BIA July 5, 2017)

A

underlying the Ninth Circuit's detennination in Rodriguez III - that an alien, such as the applicant,
whose removal is stayed pending further judicial review on his application for withholding of
removal, is not being detained pursuant to section 241(a) of the Act; rather, the applicant is
detained pursuant to section 236(a) of the Act, and he is thus entitled to the bond redetennination
hearing mandated by that decision once he has been detained for 6 months. See Rodriguez III,
supra, at 1079, 1082; see also Rodriguez v. Robbins, No. 2:07-CV-03239 (C.D. Cal. Sep. 13,
(9th Cir. 2013) (Rodriguez II) (noting that its decision in Diouf
2012), a.ff'd, 715 F.3d 1127, 1139

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v. Napolitano, 634 F.3d 1081, 1086 (9th Cir. 2011), "strongly suggested that immigration
detention becomes prolonged at the six-month mark regardless of the authorizing statute").

We recognize that this approach taken by the Rodriguez line of cases is in tension with the
Attorney General's understanding of the proscribed custody jurisdiction over aliens described in
section 237(a)(4)(D) of the Act, as reflected in the regulations at 8 C.F.R 1003.19(h)(2)(1)(C),
as well as the Board's general understanding of the limitation of custody jurisdiction to those aliens
in removal proceedings as reflected in our own decision in Matter ofA-W-, 25 l&N Dec. 45, 46-
47 (BIA 2009). Regulations and our own agency precedents are ordinarily binding upon us. See,
e.g., Matter ofE-L-H-, 23 l&N Dec. 814 (BIA 2005); Matter ofPonce De Leon, 21 I&N Dec. 154,
158-59 (BIA 1996). But in this instance, those authorities embody an understanding of the law
that has been superseded by the Ninth Circuit's Rodriguez decisions.

Thus, for the aforementioned reasons, we will remand the record for the Immigration Judge to
provide the applicant with a bond hearing pursuant to the most recent Rodriguez decision and
under the stated procedural safeguards and standard of proof discussed in Singh v. Holder,
638 F.3d 1196 (9th Cir. 2011). Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for a new bond hearing in
accordance with the above decision and the issuance of a new decision.

BOARD

Board Member Garry D. Malphrus respectfully dissents without opinion.

2
Cite as: A-S-C-H-, AXXX XXX 196 (BIA July 5, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, ARIZONA 85131

IN THE MATTER OF: ) IN BOND PROCEEDINGS

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)
C - , S )
) FILE NO.
)
APPLICANT )

ON BEHALF OF THE APPLICANT: ON BEHALF OF THE DEPARTMENT:

A S C -H , Pro Se Assistant Chief Counsel
Eloy Detention Center Department of Homeland Security
1705 East Hanna Road 1705 East Hanna Road
Eloy, Arizona 85131 Eloy, Arizona 85131

MEMORANDUM ORDER OF THE IMMIGRATION COURT

I. PROCEDURAL filSTORY

The applicant is a female, native and citizen of Mexico. (Exh. 1, Form I-863 (Feb. 25,
2015).) She last entered the United States on January 15, 2015, near the San Ysidro, Arizona
port of entry. (Id) She was previously removed from the United States and the Department of
Homeland Security ("OHS" or "the Department") reinstated the applicant's previous order of
removal on January 15, 2015. (Form I-871 (Jan. 15, 2015).) The applicant expressed a fear of
return to her country, and after a credible fear interview in which an asylum officer determined
that the applicant had a credible fear of returning to her home country, the Department filed a
Notice of Referral to an Immigration Judge. (Exh. 1, Form I-863 (Feb. 25, 2015).) The
applicant was therefore placed in withholding only proceedings and referred to this Court. (Id.)

The Department determined that the applicant would remain in custody pending her
immigration proceedings and on April 6, 2016, the Court held a custody redetermination hearing
pursuant to Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (Rodriguez Ill) wherein the
Immigration Judge found that the respondent posed a danger to society and denied the
respondent's release on bond. (U Order (Apr. 6, 2016).) Thereafter, on December 15, 2016, the
respondent requested another bond redetermination hearing pursuant to Rodriguez Ill. (Resp 't
Mot. (Dec. 15, 2016).) However, as discussed below, this Court does not have jurisdiction to
conduct a custody redetermination hearing for an applicant in withholding-only proceedings.
 r
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II. STATEMENT OF LAW

A. Department of Homeland Security Detention Authority

Congress has granted the Department of Homeland Security ("OHS" or "the

Department") general detention authority to detain aliens "on a warrant issued by the Attorney
General . .. pending a decision on whether the alien is to be removed from the United States."
see also Casas-Castrillon DHS, 535 F.3d 942, 948 (9th Cir. 2008) (applying

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INA 236(a); v.

236(a) to aliens "capable of being removed"). Under this general detention authority Congress
allowed for aliens to be released on bond. INA 236(a)(2).

In addition to this general grant of detention authority, Congress has also directed the
detention of aliens in specific categories. Aliens subject to administrative removal, including
aliens in pending credible fear procedures are mandatorily detained without bond pursuant to
INA 235(b}(l)(B)(IV). Aliens subject to specific grounds of inadmissibility or deportability
are subject to detention without bond under INA 236(c). Furthermore, aliens held "during" or
"beyond" the removal period are subject to detention without bond pursuant to INA 24l(a)(2)
and (a)(6), respectively.

An alien who is in withholding-only proceedings in accordance with 8 C.F.R. 1208.31

and 1208.2(c)(2) & (3), does not fit within the above mentioned specific categories of detention
authority that Congress granted. Section 235(b) of the Act does not apply because the alien is
not in credible fear proceedings. See INA 235(b)(l)(B)(IV). Section 236(c) does not apply
either as the alien is not being held based on criminal grounds. See id. 236(c). Furthermore,
INA 24l(a)(2) and (a)(6) do not apply in withholding-only proceedings, as both these statutes
address detention associated with the "removal period."See id. 24l(a)(2), (6). In order for the
"removal period" to begin, the order of removal must be final. Id 24l(a)(l)(B). The removal
period ends at the end of the ninety-day period, or when the order is executed and the alien is
removed from the United States. Id. 24l(a)(l)(A).

In the withholding-only context, the alien is not being detained during the "removal
period." At the moment an alien applies for withholding-only, the reinstatement of the earlier
removal order is not administratively fmal. Id 24l(b)(3)(A); 8 CFR 1208.16 to .18; id
1241.8(e); Ortiz v. Alfaro, 694 F.3d 955, 958 (9th Cir. 2012) ("[W]here a [respondent] pursues
reasonable fear and withholding of removal proceedings following the reinstatement of a prior
order of removal, the reinstated removal order does not become final until the reasonable fear
and withholding of removal proceedings are complete."). If the order is not administratively
final, then the alien is not within the removal period. See INA 24l(a)(l)(B). Thus, the alien
cannot be held pursuant to either INA 24l(a)(2) or (a)(6) as there is no final order to trigger the
removal period.

As none of the specific detention statutes apply to the alien who is in withholding-only
proceedings, the detention authority falls within INA 236(a), the general detention statute.
See
Casas-Castrillon, 535 F.3d at 948. The OHS has the authority to detain an alien under INA
236(a) when an alien: (1) has been issued a warrant, and (2) who is "pending a decision on
whether the alien is to be removed from the United States." INA 236(a). An alien in
withholding-only proceedings meets both of these requirements. The OHS takes an alien into

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custody under the authority of a warrant of arrest. 8 C.F.R. 1236.l(b). Furthermore, the
withholding-only applicant fits within the requirement that a decision is pending "on whether the
alien is to be removed from the United States," INA 236(a), as the Court in Casas-Castrillon
interpreted this to mean "capable of being removed." 535 F.3d at 948. Since the alien in
withholding-only proceedings has an order reinstating their removal, 8 C.F.R. 1208.3 l(a), they
are capable of being removed. Because an alien in withholding-only proceedings meets the
aforementioned statutory requirements, DHS's detention authority is pursuant to INA 236(a).

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B. The Immigration Court's Custody Redetermination Authority

An Immigration Judge's authority to conduct a custody redetermination hearing is

provided, and circumscribed, by 8 C.F.R. 1003.19(a) and 1236.l(d), which limit bond
jurisdiction to aliens in removal proceedings under INA 240. An Immigration Judge may not
assume jurisdictional authority where not specifically granted. Matter of A-W-, 25 I&N Dec. 45,
46 (BIA 2009) ("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 also 8 C.F.R. 1003.lO(b) (2014).

Aliens subject to a reinstated order of removal under INA 241(a)(5), but who express a
fear of returning to their home countries, are referred to an asylum officer for a reasonable fear
determination. 8 C.F.R. 241.8(e). If the asylum officer determines that the alien has a
reasonable fear, the alien is referred to an Immigration Judge to consider the alien's request for
withholding of removal. 8 C.F.R. 208.3 l(e). The regulations expressly state, however, that
aliens placed in such proceedings are not entitled to section 240 proceedings. 8 C.F.R.
1208.2(c)(2). Consequently, neither the Act nor the regulations give an Immigration Judge
authority to grant a bond hearing to an alien in withholding-only proceedings.

C. Expansion of the Court's Custody Redetermination Authority

Recently, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit")
decided several cases that expand the Immigration Judge's authority to conduct custody
redetermination hearings beyond the statutory and regulatory framework. See Prieto-Romero v.
Clark, 534 F.3d 1053 (9th Cir. 2008); Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008);
Dioufv. Napolitano (Diouf II), 634 F.3d 1081, 1084, 1092 (9th Cir. 2011); Rodriguez v. Robbins
(Rodriguez II), 715 F.3d 1127 (9th Cir. 2013). The Court notes that these cases have two
primary similarities. First, they address prolonged detention. Second, the aliens in these cases
either were in removal proceedings, or were seeking judicial review based on their removal
proceedings. Furthermore, in the custody redetermination hearings resulting from these cases,
the Ninth Circuit determined that the Department bears the burden to establish, by clear and
convincing evidence, that the respondent is a danger or flight risk. Singh v. Holder, 638 F.3d
1196, 1202 (9th Cir. 2011 ). As discussed below, none of the cases are applicable to aliens in
withholding-only proceedings.

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D. Immigration Courts Lack Authority to Grant Bond Hearings in Withholding-Only

Proceedings

No statute, regulation, or any of the previously cited cases gives the immigration judge
authority to grant a bond hearing for aliens in withholding-only proceedings.

1. Statute and Regulation

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The DHS initiates proceedings for a withholding-only case by filing a Notice of Referral,
8 C.F.R. 1208.3l(e), in contrast to an alien in removal proceedings who is issued a Notice to
Appear in order to initiate proceedings under INA 240, see INA 239(a)(l). See Matter of
Werner, 25 I&N Dec. 45, 46-47 (BIA 2009) (holding that an immigration judge lacks
jurisdiction to hold a bond hearing when the alien has been issued a Notice of Referral and not a
Notice to Appear). This is significant as 8 C.F.R. 1003.19(a) and 1236.l(d) limit the
immigration judge's bond jurisdiction to respondents who are in removal proceedings under INA
240 and does not extend an immigration judge's authority to alien's detained in withholding
only proceedings. 8 C.F.R. 1003.19(a); 1236.l(d); see also id 1240.l (a). Furthermore, an
immigration judge's jurisdiction in a withholding-only case is narrowly confined to "full
consideration of the request for withholding of removal only." 8 C.F.R. 1208.31(e) (emphasis
added). The regulation neither explicitly nor implicitly includes custody redetermination within
the scope of jurisdiction conferred on an immigration judge to adjudicate an application for
withholding of removal "only." 8 C.F.R. 1208.31(e); 1208.16.

2. Applicability of Recently Expanded Authority to Aliens in Withholding-Only

Proceedings

None of the Ninth Circuit cases expanding the Immigration Judge's custody
redetermination jurisdiction to aliens "in removal proceedings" include aliens in withholding
only proceedings.

a. Prieto-Romero

First, in Prieto-Romero v. Clark, the Ninth Circuit determined that certain aliens may be
entitled to a bond hearing if they are: (1) in removal proceedings; (2) detained pursuant to INA
236(a); and (3) subjected to prolonged detention after the issuance of an administratively final
order while seeking direct review at the Ninth Circuit where a stay of removal has been issued.
534 F.3d 1053, 1067-68 (9th Cir. 2008).

While like the individuals discussed in Prieto-Romero, aliens in withholding-only

proceedings are detained under INA 236(a), aliens in withholding-only are not subject to an
administratively final order of removal. A reinstated removal order is not administratively final
until "the reasonable fear of persecution and withholding of removal proceedings are complete."
Ortiz v. Alfaro, 694 F.3d at 958. As aliens subject to withholding-only proceedings do not meet
the criteria discussed in Prieto-Romero, the decision does not extend jurisdiction to redetermine
custody status for aliens detained during withholding-only proceedings.

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b. Casas-Castrillon

In Casas-Castrillon v. DHS, the Ninth Circuit further determined that aliens in removal
proceedings detained pursuant to INA 236(a), who were previously subject to mandatory
detention under INA 236(c), and who are subjected to prolonged detention after issuance of an
administratively final order while seeking direct review at the Ninth Circuit with a stay of
removal in effect, are entitled to a bond hearing. 535 F.3d 942 (9th Cir. 2008). The Ninth

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Circuit determined that if the respondent is being held pursuant to INA 236(c) when the BIA
affirms an order of removal and then the respondent files a petition for review, detention
,
authority under 236(c) ends and shifts to 236(a) until the alien enters the "removal period ,
following rejection of the petition for review or the time to seek such review expires. Id at 948.

Aliens in withholding-only proceedings do not qualify for a bond hearing under Casas
Castrillon because although they are being detained pursuant to INA 236(a), they are not
subject to an administratively final order. Additionally, aliens in withholding-only proceedings
are not seeking judicial review. Therefore, Casas-Castrillon does not expand custody
redetermination jurisdiction to include aliens being held pursuant to INA 236(a) while in
withholding-only proceedings.

c. Diou/

The Ninth Circuit expanded the Casas-Castrillon decision in Diouf v. Napolitano (Diouf
//), and determined that Immigration Judges should conduct a bond hearing for aliens: (1) in
removal proceedings; (2) who are detained pursuant to INA 24l(a)(6); and (3) subject to
prolonged detention after issuance of an administratively final order while seeking judicial
review of his or her collateral challenge to his removal order (a motion to reopen) at the Ninth
Circuit, when a stay of removal has been issued. 634 F.3d 1081, 1084, 1092 (9th Cir. 2011).

However, as discussed above, aliens in withholding-only proceedings are held pursuant

to INA 24l(b)(3), not INA 240 removal proceedings as in Diouf. As such, Diouf does not
confer jurisdiction to an immigration judge to reconsider custody status of aliens in withholding
only proceedings.

d. Rodriguez

The Ninth Circuit specifically addressed the issue of whether an alien who has been
detained for more than six month under INA24l(a) is entitled to a Rodriguez bond hearing. On
October 28, 2015, in a decision which affirmed in part, and remanded in part, the district courfs
permanent injunction, the Ninth Circuit Court of Appeals held that the Rodriguez class
membership extends only to aliens detained under INA 235(b), 236(a), and 236(c) and
excluded aliens detained under INA24l(a) from the Rodriguez class. Rodriguez v. Robbins,
No. 13-56706, 2015 WL 6500862, at *7, 10 (9th Cir. Oct. 28, 2015). Therefore, the immigration
judge does not have authority to grand a bond hearing to an alien in withholding-only
proceedings detained under INA 24l(a)(5) as such an alien is not a Rodriguez class member
entitled to a Rodriguez bond hearing.

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III. FINDINGS AND ANALYSIS

A. Bond Eligibility

Because the jurisdiction of an immigration judge is defined and limited by "the powers
and duties delegated to them by the Act and by the Attorney General through regulation," the
immigration judge does not have the authority to unilaterally and arbitrarily expand jurisdiction

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for custody redetermination. See 8 C.F.R. 1003.lO(b) (2014). As the applicant is in
withholding-only proceedings and no jurisdiction has been given to this Court to grant a bond
hearing for an alien in withholding-only proceedings, whether under Rodriguez III or otherwise,
this Court declines to go beyond its authority to grant such a hearing to the applicant.

IV. CONCLUSION

On this record, the Court has determined that the applicant is not eligible for a custody
redetermination under Rodriguez III or otherwise, as she is in withholding-only proceedings.

Accordingly, the Court shall enter the following Order:

ORDER: IT IS HEREBY ORDERED THAT the applicant's request for a custody

redetermination hearing is DENIED.

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE (P)
TO: ( ) ALIEN (f} ALIEN c/o Custodial Officer ( ) ALIEN'S ATT/REP (f) OHS
DATE: 01 I \'2. l.1 BY COURT STAFF: -
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.......

Attachments: f ) E<i>IR-33 ( ) EOIR-28 ( ) Legal Other