9.4 - Detention Review

(a) In General

Generally, the Department of Homeland Security (DHS) must remove or release detained aliens within 90 days of a final order of removal.  However, DHS may continue to detain an alien whose removal from the United States is not “reasonably foreseeable,” if the alien’s release would pose a special danger to the public.  See INA § 241(a)(6), 8 C.F.R. § 1241.14(f).  Such a decision by DHS to continue to detain an alien is reviewed by an Immigration Judge in “continued detention review proceedings.” While background investigations and security checks are not required, as custody decisions require promptness, the regulations do allow for some consideration of these matters: “[i]n scheduling an initial custody redetermination hearing, the Immigration Judge shall, to the extent practicable consistent with the expedited nature of such cases, take account of the brief initial period of time needed for DHS to conduct the automated portions of its identity, law enforcement, or security investigations or examinations with respect to aliens detained in connection with immigration proceedings.” 8 C.F.R § 1003.47(k). The proceedings begin with a DHS determination that continued detention is required and are divided into two phases: (1) reasonable cause hearings and (2) continued detention review merits hearings.  See subsections (c), (d), below.

(b) DHS Determination

If an alien has been ordered removed but remains detained, he or she may request that the Department of Homeland Security (DHS) determine whether there is a significant likelihood of removal in the reasonably foreseeable future.  See 8 C.F.R. § 241.13.  If there is a significant likelihood of removal in the reasonably foreseeable future, DHS may continue to detain the alien.

If there is not a significant likelihood of removal in the reasonably foreseeable future, the alien is released unless DHS determines, based on a full medical and physical examination, including a mental-health evaluation, that the alien should be subject to continued detention because the alien’s release would pose a special danger to the public.  Following such a determination, the matter is referred to an Immigration Judge for a reasonable cause hearing.  See 8 C.F.R. § 1241.14(f).

(c) Reasonable Cause Hearing

A reasonable cause hearing is a brief hearing to evaluate the evidence supporting the determination by the Department of Homeland Security (DHS) that the alien’s release would pose a special danger to the public.  In the hearing, the Immigration Judge decides whether DHS’s evidence is sufficient to establish reasonable cause to go forward with a continued detention review merits hearing, or whether the alien should be released.  See generally 8 C.F.R. § 1241.14.

     (1) Initiation - Jurisdiction vests with the Immigration Court when DHS files a Form I-863 (Notice of Referral to the Immigration Judge) with the court having jurisdiction over the place of the alien’s custody.

     (2) Timing - The reasonable cause hearing begins no later than 10 business days after referral to the Immigration Court. These hearings must take priority over all other hearings with the exception of credible fear review hearings.

     (3) Location - If possible, the reasonable cause hearing is conducted in person, but may be conducted by telephone conference or video conference, at the Immigration Judge’s discretion.  See Chapter 4.7 (Hearings by Video or Telephone Conference).

     (4) Representation - The alien is provided with a list of free or low-cost legal service providers and may be represented by a practitioner of record at no expense to the government.

     (5) Conduct of hearing - At the outset of the hearing, the immigration judge will explain the alien’s rights to the alien, including a reasonable opportunity to examine evidence and witnesses presented by DHS, and to present evidence on his or her own behalf. DHS may offer any evidence that is material and relevant to the proceeding. EOIR will provide an interpreter for the hearing.

     (6) Record of Proceedings - The Immigration Judge creates a Record of Proceedings, and the hearing is recorded.  The Record of Proceedings is not combined with records of any other Immigration Court proceedings involving the same alien.

     (7) Immigration Judge’s decision - If the Immigration Judge finds that DHS has met its burden of showing reasonable cause to go forward with a continued detention review merits hearing, the alien is notified, and the merits hearing is scheduled.

If the Immigration Judge finds that DHS has not met its burden, the Immigration Judge dismisses the proceedings, and the alien is released under conditions determined by DHS.

The Immigration Judge will render a decision in oral or written form. An oral decision will be made on the record, in summary form. The oral decision must be identified as “the decision of the Immigration Judge.”

Written (reserved) decisions must be issued within five business days after the close of the record, unless that time period is extended 1) by an agreement of both parties; 2) because of a delay caused by the alien; or 3) by a determination by the Chief Immigration Judge that “exceptional circumstances make it impractical to render the decision on a highly expedited basis.” Approval for an extension based upon certification by the Chief Immigration Judge must be obtained no later than the third business day after the hearing is concluded.

     (8) Appeals - If the Immigration Judge finds that DHS has not met its burden of showing reasonable cause to go forward with a continued detention review merits hearing, DHS may appeal to the Board of Immigration Appeals.  The appeal must be filed within two business days after the Immigration Judge’s order.  The Immigration Judge’s order dismissing the proceedings is stayed pending adjudication of an appeal, unless DHS waives the right to appeal. If the Board of Immigration Appeals determines that DHS has met its burden, the case will be remanded to the immigration judge to conduct a continued detention review merits hearing, scheduled to commence within 30 days from the Board’s order.

If the Immigration Judge finds that DHS has met its burden, the decision is not appealable by the alien.

(d) Continued Detention Review Merits Hearing

In the continued detention review merits hearing, the Department of Homeland Security (DHS) has the burden of proving by clear and convincing evidence that the alien should remain in custody because the alien’s release would pose a special danger to the public.  See generally 8 C.F.R. § 1241.14.

     (1) Initiation - The Immigration Court’s jurisdiction vests for a continued detention review merits hearing after either the Immigration Court or the Board, pursuant to a final decision in a reasonable cause hearing, has determined that DHS’s determination and evidence is sufficient to establish reasonable cause to proceed with a continued detention review merits hearing.

     (2) Timing - The continued detention review merits hearing is scheduled promptly.  If the alien requests, the merits hearing is scheduled to commence within 30 days of the decision in the reasonable cause hearing.

     (3) Representation - The alien is provided with a list of free and low-cost legal service providers and may be represented by a practitioner of record at no expense to the government.

     (4) Conduct of hearing - The Immigration Judge may receive into evidence any oral or written statement that is material and relevant to the proceeding.  The ROP that was used for the reasonable cause hearing will also be used for the continued detention review merits hearing.  The alien has the right to be represented at no cost to the government by a practitioner of record and shall be given a list of free legal service providers. The alien has a reasonable opportunity to examine evidence against him or her, to present evidence and witnesses on his or her own behalf, and to cross-examine witnesses presented by DHS.  In addition, the alien has the right to cross-examine the author of any medical or mental health reports used as a basis for DHS’s determination that the alien’s release would pose a special danger to the public. In addition to receiving a written statement of rights, the Immigration Judge will explain these rights to the alien at the beginning of the hearing.

     (5) Immigration Judge’s decision - If the Immigration Judge determines that DHS has met its burden of showing that the alien should remain in custody as a special danger to the public, the Immigration Judge orders the continued detention of the alien.

If the Immigration Judge determines that DHS has not met its burden, the Immigration Judge dismisses the proceedings, and the alien is released under conditions determined by DHS.

The Immigration Judge may render either an oral or written (reserved) decision.  Written decisions must be issued within ten days after the close of the record, subject to extension pursuant to the same procedures as those for reasonable cause hearings.

     (6) Appeals - Either party may appeal the Immigration Judge’s decision to the Board of Immigration Appeals.  Appeals by DHS must be filed within 5 business days of the Immigration Judge’s order.  Appeals by aliens are subject to the same deadlines as appeals in removal proceedings.  For detailed guidance on appeals, parties should consult Part III of this manual, which is available on the EOIR website.

If the Immigration Judge dismisses the proceedings and orders the alien released, the order is stayed pending adjudication of any DHS appeal, unless DHS waives the right to appeal.

(e) Periodic Review

Following proceedings in which the alien’s continued detention has been ordered, the alien may periodically request that the Department of Homeland Security (DHS) review his or her continued detention.  The alien must show that, due to a material change in circumstances, the alien’s release would no longer pose a special danger to the public.  Such requests may be made no earlier than 6 months after the most recent decision of the Immigration Judge or the Board of Immigration Appeals.

If DHS does not release the alien, the alien may file a motion with the Immigration Court to set aside its prior determination in the proceedings.  The alien must show that, due to a material change in circumstances, the alien’s release would no longer pose a special danger to the public.  If the Immigration Judge grants the motion, a new continued detention review merits hearing will be scheduled to be held within 30 days of the grant of the motion.  If the motion is denied, the alien may appeal to the Board.