7.3 - Procedure

(a) Filing — When a respondent may appeal the bond decision of an immigration judge, the appeal is filed in the same manner as any other appeal of an immigration judge decision.  See Chapter 3 (Filing with the Board), 4 (Appeals of Immigration Judge Decisions).  In those few instances in which a respondent may appeal to the Board from the custody determination of DHS, the appeal is filed in the same manner as a visa petition appeal.  See Chapters 7.2(b)(2) (DHS decisions), 9 (Visa Petitions).

          (1) Separate Notice of Appeal — A bond appeal must be filed on its own Notice of Appeal (Form EOIR‑26, if an immigration judge decision, or Form EOIR‑29, if a DHS decision) and must not be combined with an appeal of a decision regarding the respondent’s removal or deportation (often referred to as the decision “on the merits” of the case).  The Notice of Appeal should be completed in full and specify the date of the bond decision being appealed.

          (2) Deadline — 

(A) Immigration judge decision — When an immigration judge renders the bond decision, the appeal has the same 30-day deadline as any other appeal from an immigration judge decision.  See Chapter 4.5 (Appeal Deadlines).

(B) Department of Homeland Security decision — In the limited instances in which the Board has jurisdiction over the appeal from a DHS bond decision, the deadline for filing an appeal is 10 days from the date of the DHS bond decision.  See 8 C.F.R. § 1236.1(d)(3).  See also Chapter 3.1(b) (Must be “Timely”).

          (3) Fee — Generally, there is no filing fee for a bond appeal.  However, when a respondent is appealing the amount of a voluntary departure bond in removal proceedings, there is a $110 filing fee.

          (4) Stays — 

(A) Stays of deportation or removal — Stays of deportation or removal are not available in bond proceedings.  See 8 C.F.R. § 1236.1(d)(4).  See also Chapter 6 (Stays and Expedite Requests).

(B) Stays of bond decisions — If a respondent appeals a bond decision, that decision remains in effect while the appeal is pending.  The same is true for a DHS appeal, unless the decision is “stayed” by regulation (which here means that the immigration judge’s decision does not go into effect and the DHS decision to detain the respondent remains in effect until the Board decides the appeal).  See 8 C.F.R. § 1003.19(i)(2).

A bond decision is stayed by regulation when either:

• DHS has determined that a respondent should not be released, but the immigration judge authorized the respondent’s release
• DHS sets a bond of $10,000 or more, but the immigration judge sets a lower bond amount

For such a stay to take effect, DHS must file a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR‑43) with the immigration court within one business day of the immigration judge’s bond order, and file the appeal within 10 business days.  The stay remains in effect until the Board decides the appeal, or 90 days from the filing of the appeal, whichever occurs first.  The 90 days is tolled 21 days if the Board grants a respondent’s briefing extension request and is extended if a discretionary stay is pending or for referral to the Attorney General.

When a stay is not automatic, DHS may ask the Board to grant an emergency stay.  See 8 C.F.R. § 1003.19(i)(1), Matter of Joseph, 22 I&N Dec. 660 (BIA 1999).  See also Chapter 6 (Stays and Expedited Requests).

(b) Processing — Appeals of bond decisions made by immigration judges are briefed and processed in the same manner as appeals of immigration judge removal decisions, except that bond hearings are not transcribed.  See Chapters 3 (Filing with the Board), 4 (Appeals of Immigration Judge Decisions).  Appeals of bond decisions made by DHS officers are briefed and processed in the same manner as visa petition appeals.  See Chapter 9 (Visa Petitions).

          (1) Briefing schedule — Where the appeal is taken from an immigration judge decision, the Board issues a filing receipt and a briefing schedule.  See Chapter 4.2(e) (Briefing Schedule).  Where the appeal is taken from a DHS decision, DHS is responsible for the briefing schedule.  See Chapter 9.3(d)(2) (Briefing schedule).  Briefs, when submitted, should comply with the general rules for briefing.  See Chapter 4.6 (Appeal Briefs).

          (2) Transcripts — Bond proceedings are less formal than other immigration court proceedings.  See Matter of Chirinos, 16 I&N Dec. 276 (BIA 1977).  Bond hearings are seldom recorded and are not routinely transcribed.  See generally Chapter 4.2(f) (Transcription).

          (3) Decision — Upon entry of a decision regarding a bond appeal, the Board serves the decision on the parties by regular mail, or through ECAS in eligible cases.  See Chapter 1.4(d) (Board Decisions).  A courtesy copy of the Board’s decision is also served by regular mail upon a represented respondent.