[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.19]

[Page 24-26]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
            Subpart C--Immigration Court--Rules of Procedure
 
Sec. 3.19  Custody/bond.

    (a) Custody and bond determinations made by the service pursuant to 
8 CFR part 236 may be reviewed by an Immigration Judge pursuant to 8 CFR 
part 236.
    (b) Application for an initial bond redetermination by a respondent, 
or his or her attorney or representative, may be made orally, in 
writing, or, at the discretion of the Immigration Judge, by telephone.
    (c) Applications for the exercise of authority to review bond 
determinations shall be made to one of the following offices, in the 
designated order:
    (1) If the respondent is detained, to the Immigration Court having 
jurisdiction over the place of detention;
    (2) To the Immigration Court having administrative control over the 
case; or
    (3) To the Office of the Chief Immigration Judge for designation of 
an appropriate Immigration Court.
    (d) Consideration by the Immigration Judge of an application or 
request of a respondent regarding custody or bond under this section 
shall be separate and apart from, and shall form no part of, any 
deportation or removal hearing or proceeding. The determination of the 
Immigration Judge as to custody status or bond may be based upon any 
information that is available to the Immigration Judge or that is 
presented to him or her by the alien or the Service.
    (e) After an initial bond redetermination, a request for a 
subsequent bond redetermination shall be made in writing and shall be 
considered only upon a showing that the alien's circumstances have 
changed materially since the prior bond redetermination.

[[Page 25]]

    (f) The determination of an Immigration Judge with respect to 
custody status or bond redetermination shall be entered on the 
appropriate form at the time such decision is made and the parties shall 
be informed orally or in writing of the reasons for the decision. An 
appeal from the determination by an Immigration Judge may be taken to 
the Board of Immigration Appeals pursuant to Sec. 3.38.
    (g) While any proceeding is pending before the Executive Office for 
Immigration Review, the Service shall immediately advise the Immigration 
Court having administrative control over the Record of Proceeding of a 
change in the respondent/applicant's custody location or of release from 
Service custody, or subsequent taking into Service custody, of a 
respondent/applicant. This notification shall be in writing and shall 
state the effective date of the change in custody location or status, 
and the respondent/applicant's current fixed street address, including 
zip code.
    (h)(1)(i) While the Transition Period Custody Rules (TPCR) set forth 
in section 303(b)(3) of Div. C of Pub. L. 104-208 remain in effect, an 
immigration judge may not redetermine conditions of custody imposed by 
the Service with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including persons 
paroled after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens subject to section 303(b)(3)(A) of Pub. L. 104-208 who 
are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(2) of this 
chapter); or
    (E) Aliens designated in Sec. 236.1(c) of this chapter as ineligible 
to be considered for release.
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 235 or 236 of this chapter. In addition, 
with respect to paragraphs (h)(1)(i)(C), (D), and (E) of this section, 
nothing in this paragraph shall be construed as prohibiting an alien 
from seeking a determination by an immigration judge that the alien is 
not properly included within any of those paragraphs.
    (2)(i) Upon expiration of the Transition Period Custody Rules set 
forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an immigration 
judge may not redetermine conditions of custody imposed by the Service 
with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including aliens paroled 
after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens in removal proceedings subject to section 236(c)(1) of 
the Act (as in effect after expiration of the Transition Period Custody 
Rules); and
    (E) Aliens in deportation proceedings subject to section 242(a)(2) 
of the Act (as in effect prior to April 1, 1997, and as amended by 
section 440(c) of Pub. L. 104-132).
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 235 or 236 of this chapter. In addition, 
with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, 
nothing in this paragraph shall be construed as prohibiting an alien 
from seeking a determination by an immigration judge that the alien is 
not properly included within any of those paragraphs.
    (3) Except as otherwise provided in paragraph (h)(1) of this 
section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L. 
104-208 may apply to the Immigration Court, in a manner consistent with 
paragraphs (c)(1) through (c)(3) of this section, for a redetermination 
of custody conditions set by the Service. Such an alien must first 
demonstrate, by clear and convincing evidence, that release would not 
pose a danger to other persons or to property. If an alien meets this 
burden, the alien must further demonstrate, by clear and convincing 
evidence, that the alien is likely to appear for any scheduled 
proceeding or interview.
    (4) Unremovable aliens. A determination of a district director (or 
other official designated by the Commissioner)

[[Page 26]]

regarding the exercise of authority under section 303(b)(3)(B)(ii) of 
Div. C. of Pub. L. 104-208 (concerning release of aliens who cannot be 
removed because the designated country of removal will not accept their 
return) is final, and shall not be subject to redetermination by an 
immigration judge.
    (i) Stay of custody order pending Service appeal--(1) General 
emergency stay authority. The Board of Immigration Appeals (Board) has 
the authority to stay the order of an immigration judge redetermining 
the conditions of custody of an alien when the Service appeals the 
custody decision. The Service is entitled to seek an emergency stay for 
the Board in connection with such an appeal at any time.
    (2) Automatic stay in certain cases. If an alien is subject to 
section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and 
as amended by section 440(c) of Pub. L. 104-132), section 303(b)(3)(A) 
of Div. C of Pub. L. 104-208, or section 236(c)(1) of the Act (as 
designated on April 1, 1997), and the district director has denied the 
alien's request for release or has set a bond of $10,000 or more, any 
order of the immigration judge authorizing release (on bond or 
otherwise) shall be stayed upon the Service's filing of a Notice of 
Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the 
Immigration Court on the day the order is issued, and shall remain in 
abeyance pending decision of the appeal by the Board of Immigration 
Appeals. The stay shall lapse upon failure of the Service to file a 
timely notice of appeal in accordance with Sec. 3.38.

[57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 62 
FR 10332, Mar. 6, 1997; 63 FR 27448, May 19, 1998]