Exhibit A. Executive Office of Immigration Review (EOIR), Immigration Judge Benchbook (Aug. 2014) (excerpt)
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1 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 1 of 41 Exhibit A Executive Office of Immigration Review (EOIR), Immigration Judge Benchbook (Aug. 2014) (excerpt)
2 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 2 of 41 Bond/Custody I. Overview A. Application Before an Immigration Judge B. Time C. Subsequent Hearing D. While a Bond Appeal is Pending E. Non-Mandatory Custody Aliens F. Mandatory Custody Aliens G. An Immigration Judge May Not Redetermine Custody Status H. Significant Factors in a Bond Determination I. Less Significant Factors in a Bond Determination II. Case Citations--Quick Reference BOND AND CUSTODY HEARINGS I. OVERVIEW Page 1 of 10
3 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 3 of 41 A. APPLICATION BEFORE AN IMMIGRATION JUDGE The controlling provisions for bond/custody redetermination hearings before an Immigration Judge are found at INA 236; 8 C.F.R and (2006). The bond hearing is separate and apart from, and shall form no part of the removal hearings. 8 C.F.R (d) (2006). The application for a bond redetermination hearing is made to one of the following offices, in the following order prescribed at 8 C.F.R (2006): 1. If the alien is detained, to the Immigration Court that has jurisdiction over the place of detention. Note: the filing of a charging document is not a prerequisite to bond hearing jurisdiction. See Matter of Sanchez, 20 I&N Dec. 223, 225 (BIA 1990); 2. To the Immigration Court that has administrative control over the case. See 8 C.F.R (2006); or, 3. To the Office of the Chief Immigration Judge (OCIJ) for designation of the appropriate Immigration Court to accept and hear the application. B. TIME 1. After the DHS makes its initial custody determination, and 2. Before an administratively final order of deportation or removal. 8 C.F.R , (2006); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981). C. SUBSEQUENT HEARING The Immigration Judge may conduct a subsequent custody hearing so long as the request is made in writing and based on a showing that the alien's circumstances have changed materially since the initial bond redetermination hearing. 8 C.F.R (e) (2006); Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989). D. WHILE A BOND APPEAL IS PENDING When appropriate, an Immigration Judge may entertain a bond redetermination request, even when a previous bond redetermination by the Immigration Judge has been appealed to the Board of Immigration Appeals (BIA). Matter of Valles, 21 I&N Dec. 769 (BIA 1997). If a bond redetermination request is granted by an Immigration Judge while a bond appeal is pending with the BIA, the appeal is rendered moot. Id. If an Immigration Judge declines to change the amount or conditions of bond, the DHS must notify the BIA in writing, with proof of service on the opposing party, within 30 days, if it wishes to pursue its original bond appeal. Id. E. NON-MANDATORY CUSTODY ALIENS Page 2 of 10
4 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 4 of Neither section 236(a) of the Act nor the applicable regulations confer on the alien the right to release on bond. In re D-J-, 23 I&N Dec. 572 (A.G. 2003). The denial of a respondent s release on bond does not violate international law. Id. 2. For non-mandatory custody aliens, Immigration Judges can: (1) continue to detain; or (2) release on bond of not less than $1, INA 236(a). Note: Immigration Judges do not have authority to consider or review DHS parole decisions. 3. Section 236(a) of the Act does not provide for the release of an alien on the alien s own recognizance. 4. Under BIA case law addressing general bond provisions of prior law, an alien ordinarily would not be detained unless he or she presented a threat to national security or a risk of flight. See Matter of Patel, 15 I&N Dec. 666 (BIA 1976). By virtue of 8 C.F.R (c)(8) (2006), a criminal alien must demonstrate that he is not a threat to the national security, that his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Adeniji, 22 I&N Dec (BIA 1999). But see In re D-J-, 23 I&N Dec. 572 (A.G. 2003). 5. Juveniles (i.e., under 18) have special conditions of release. See 8 C.F.R (2006). a. Juveniles, in addition to having monetary bond, will have conditions of release in that they can only be released, in order of preference, to : i. a parent, ii legal guardian, or iii. adult relative. b. The regulation governing juvenile conditions of release is quite detailed and specific. There is no authority for the Immigration Judge to fashion independent conditions of release. See also In Re Mejia-Andino, 23 I&N Dec. 533 (BIA 2002); Matter of Amaya, 21 I&N Dec. 583 (BIA 1996). F. MANDATORY CUSTODY ALIENS 1. The Immigration Court has no bond/custody redetermination authority over those aliens defined in section 236(c)(1) of the Act unless it falls within the enumerated exception. The exception provides that the alien may be released if it is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or to protect an immediate family member of such witness. The alien must satisfy the Attorney General that he or she will not pose a danger to the safety of other persons or of property and is likely to appear for hearings. Page 3 of 10
5 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 5 of 41 Exhibit B EOIR, Immigration Judge Benchbook (Oct. 2001) (excerpt)
6 PROVIDED BY The leading immigration ILW COM law publisher Case 2:14-cv Document 1-1 Filed 10/16/14 Page 6 of 41 Immigration Judge Benchbook Index (October 2001) Part I. Substantive Law Portion Part II. Sample Decisions & Related Law Paragraphs Part III. Forms
7 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 7 of 41 Immigration Judge Benchbook Index (October 2001) Part I. Substantive Law Portion Chapter One - Evidence Chapter Two - Telephonic/TeleVideo Hearings Chapter Three - Bond/Custody Chapter Four - Exclusion Hearings Chapter Five - Deportation Hearings Chapter Six - Relief From Exclusion And Deportation Chapter Seven - Removal Proceedings Chapter Eight - Motions Chapter Nine - Convention Against Torture
8 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 8 of 41 Immigration Judge Benchbook Index (October 2001) Chapter Three - Bond/Custody I. Overview A. Application Before an Immigration Judge B. Time C. Subsequent Hearing D. While a Bond Appeal is Pending E. Non-Mandatory Custody Aliens F. Mandatory Custody Aliens G. An Immigration Judge May Not Redetermine Custody Status H. Significant Factors in a Bond Determination I. Less Significant Factors in a Bond Determination II. Case Citations--Quick Reference
9 B. TIME Case 2:14-cv Document 1-1 Filed 10/16/14 Page 9 of After the Service makes its initial custody determination, and 2. Before an administratively final order of deportation or removal. 8 C.F.R , 3.19 (2000); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sanchez, 20 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981). C. SUBSEQUENT HEARING The Immigration Judge may conduct a subsequent custody hearing so long as the request is made in writing and based on a showing that the alien's circumstances have changed materially since the initial bond redetermination hearing. 8 C.F.R. 3.19(e) (2000); Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989). D. WHILE A BOND APPEAL IS PENDING When appropriate, an Immigration Judge may entertain a bond redetermination request, even when a previous bond redetermination by the Immigration Judge has been appealed to the Board of Immigration Appeals (BIA). Matter of Valles, 21 I&N Dec. 769 (BIA 1997). If a bond redetermination request is granted by an Immigration Judge while a bond appeal is pending with the BIA, the appeal is rendered moot. Id. If an Immigration Judge declines to change the amount or conditions of bond, the Service must notify the BIA in writing, with proof of service on the opposing party, within 30 days, if it wishes to pursue its original bond appeal. Id. E. NON-MANDATORY CUSTODY ALIENS 1. For non-mandatory custody aliens, Immigration Judges can: (1) continue to detain; or (2) release on bond of not less than $1, Note: Immigration Judges do not have authority to consider or review INS parole decisions. 2. It appears from the language of the statute that ordering release on the alien's own recognizance is no longer an option. 3. However, the IIRIRA regulation on bond provides that the alien may petition the Immigration Judge for "amelioration of the conditions under which he or she may be released...the Immigration Judge is authorized to
10 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 10 of 41 Exhibit Memorandum from Gus P. Coldebella, Office of General Counsel, U.S. Department of Homeland Security, Clarification of the Relation Between Release Under Section 236 and Parole Under Section 212(d)(5) of the Immigration and Nationality Act (Sept. 28, 2007)
11 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 11 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
12 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 12 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
13 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 13 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
14 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 14 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
15 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 15 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
16 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 16 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
17 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 17 of 41 AILA InfoNet Doc. No (Posted on 12/17/09).
18 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 18 of 41 Exhibit Memorandum from Johnny N. Williams, Office of Field Operations, Immigration and Naturalization Service, Guidance Regarding the Release of an Alien on an Order of Release on Recognizance, Detention and Deportation Officer s Field Manual (DDFM) Chapter 11.1 and INS Form 1-220A, Order of Release on Recognizance
19 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 19 of 41 b6,b7c ICE
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27 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 27 of 41 Exhibit DHS Brief on Appeal, In re Pangan, A (BIA Dec. 29, 2011)
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32 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 32 of 41 Exhibit Deposition of Thomas Y.K. Fong, Assistant Chief Immigration Judge, Rodriguez v. Robbins, No. CV (C.D. Cal. Feb. 28, 2012) (excerpts)
33 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 33 of 41 1 UNITED STATES DISTRICT COURT 2 FOR THE CENTRAL DISTRICT CALIFORNIA 3 4 ALEJANDRO RODRIGUEZ, et al., ) ) 5 Petitioners, ) ) 6 vs. ) No. CV ) TJH(RNBx) 7 TIMOTHY ROBBINS, et al., ) ) 8 Respondents. ) ) DEPOSITION OF THOMAS Y.K. FONG 15 Los Angeles, California 16 Tuesday, February 28, Reported by: MICHELE URBINA 22 CSR No Job No PAGES Veritext National Deposition & Litigation Services Page 1
34 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 34 of 41 1 UNITED STATES DISTRICT COURT 2 FOR THE CENTRAL DISTRICT CALIFORNIA 3 4 ALEJANDRO RODRIGUEZ, et al., ) ) 5 Petitioners, ) ) 6 vs. ) No. CV ) TJH(RNBx) 7 TIMOTHY ROBBINS, et al., ) ) 8 Respondents. ) ) Deposition of THOMAS Y.K. FONG, at 1313 West 15 8th Street, 2nd Floor, Los Angeles, California, 16 beginning at 9:02 a.m., and ending at 2:37 p.m. on 17 Tuesday, February 28, 2012, before MICHELE URBINA, 18 Certified Shorthand Reporter No Veritext National Deposition & Litigation Services Page 2
35 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 35 of 41 1 APPEARANCES: 2 3 For Petitioners: 4 AMERICAN CIVIL LIBERTIES UNION of SOUTHERN 5 CALIFORNIA 6 BY: AHILAN T. ARULANANTHAM 7 MICHAEL KAUFMAN 8 Attorneys at Law Eighth Street 10 Los Angeles, California (213) aarulanantham@aclu-sc.org 13 mkaufman@aclu-sc.org For Respondents: 16 UNITED STATES DEPARTMENT OF JUSTICE 17 OFFICE OF IMMIGRATION LITIGATION, DISTRICT COURT 18 SECTION 19 BY: THEODORE W. ATKINSON 20 Senior Litigation Counsel 21 Box 868, Ben Franklin Station 22 Washington, D.C (202) theodore.atkinson@usdoj.gov 25 Veritext National Deposition & Litigation Services Page 3
36 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 36 of 41 1 APPEARANCES: (Continued) 2 3 Also Present: 4 CODY JACOBS, ESQ. ELLEN WHALEN, ESQ. (Via Speaker-Phone) Veritext National Deposition & Litigation Services Page 4
37 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 37 of 41 1 to tell me that. I just, at that point, said, "Judge, 2 what do we do? Our caseload is climbing." 3 At that point, I started assigning judges on a 4 weekly basis to take the place of the judge, and they 5 came from the non-detained court in Los Angeles, and also 6 by VTC. When I had volunteers from other courts, 7 obviously, they took that period of time and I didn't 8 send a judge up here. 9 Q Let's talk about Exhibit 2, which is the 10 training that you had referred to earlier. 11 On the first page of the exhibit, it says, 12 "Presented by Steve Chapman and Josh Friedman, Attorney 13 Advisors." 14 Are those clerks? 15 A They are judicial law clerks, JLCs, you know, 16 attorneys; law clerks by definition. You know what that 17 means. And they are fully licensed attorneys. They are 18 second-year attorneys. We have -- our JLCs are on 19 two-year retainer, if you want to call it that. 20 So these are senior attorney advisors that have 21 been with the court at least one year, if not longer. 22 Sometimes they'd transfer from another court or had 23 another position with us. 24 So I gave them -- two very capable individuals. 25 There's a reason. It was an important issue. So I gave Veritext National Deposition & Litigation Services Page 202
38 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 38 of 41 1 it to them and said, "I want the two of you to do this 2 presentation and to clerk." 3 Q And then on the left-hand side, it says 4 "Introduction to Bond Hearings," and it refers to 5 numerical limits. 6 A I have to tell you, the first time I saw this 7 was a few days ago when I said, "I know this issue is 8 going to come up. I know we had a bond presentation. 9 Send me the materials on it." 10 And this is the first time I saw the cover 11 sheet, because this was their outline to present it to 12 us. I had not seen it before. 13 Q Okay. 14 A So -- but, of course, you will notice it tracks 15 with the page one through seven, which is a detailed 16 outline which they gave us. The one-page cheat sheet, as 17 it is -- normally we all call the quick reference, and 18 then this -- those two documents were, of course, 19 presented in conjunction with a PowerPoint. 20 So the first page is their outline, and again, 21 it is the first time I saw it. So other than noting 22 that's what they used to do their presentation, that's 23 all basically I can tell you about it. 24 Q So I recognize, then, that numerical limits is 25 also covered later on in the more detailed outline. Veritext National Deposition & Litigation Services Page 203
39 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 39 of 41 1 Counsel -- where on this exhibit? Is it under C-2? 2 MR. ARULANANTHAM: Yes, it is under C-2. 3 THE WITNESS: They are given only for guidance. 4 We cannot recite it unless they give you precedential, 5 but -- although the authority gives you some guidance 6 that might be effective, you want to consider whether 7 it's appropriate to at least consider in presenting your 8 case. 9 Although it is interesting they cite that, 10 because that has always been law. 11 MR. ARULANANTHAM: Right. 12 THE WITNESS: I even counsel that it is not 13 evidence. 14 MR. ARULANANTHAM: Right. 15 BY MR. ARULANANTHAM: 16 Q The next paragraph down, "Conditions of Release, 17 Amount of Bond," this goes to the questions I was asking 18 you earlier. 19 Do you see that it says, "The IJ may release an 20 eligible respondent," I presume, "on bond on a 21 discretionary amount of not less than $1500." 22 Do you see that A Yes. 24 Q -- line? 25 But there's no mention there of release on Veritext National Deposition & Litigation Services Page 209
40 Case 2:14-cv Document 1-1 Filed 10/16/14 Page 40 of 41 1 recognizance. What's the -- 2 A You know, I wasn't there to hear their 3 presentation, but I assume they meant -- and, of course, 4 we all know it. If you set a bond dollar amount, it has 5 to be a minimum 1500 or it is released without bond. You 6 don't set something less than that. 7 Although it may not be stated there, that was an 8 understanding our judges knew. It was either $1500 or 9 more or you set no bond amount for release. 10 Q And so it is your understanding that you can 11 also release a Casas detainee at a Casas hearing on a 12 signature? 13 A Without an actual money bond, correct. That was 14 not the intention. If it was read that way, it was not 15 intended. 16 Q Can you now go to page four of seven. And I 17 think -- well, let me ask you. 18 Is this section -- this section's about 236(a) 19 bond decisions; is that right? 20 A I don't know. I'll have to go back and look. 21 MR. ATKINSON: I'm sorry, Counsel. When you say 22 "this section," can you be a little bit more precise as 23 to what you're referring to? 24 MR. ARULANANTHAM: Sure. It is section two, 25 "Eligible for Discretionary Release on Bond," and it Veritext National Deposition & Litigation Services Page 210
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