In recent years, Immigration Judges (“IJs”) have universally denied requests for conditional parole under section 236(a) of the Immigration and Nationality Act (“INA”). IJs countrywide read this statutory provision to mean that a minimum $1,500 bond is required for releasing a detained immigrant. As a result of this interpretation, many indigent and low-income immigrants stay locked up in detention facilities because they could not afford to pay monetary bonds. Many of these individuals do not pose any public safety concerns, and alternative release conditions would suffice.
Unfortunately, immigration court’s interpretation is contrary to the plain meaning of the statute. INA section 236(a) expressly authorizes the Attorney General to release a noncitizen from detention pending removal on
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; …
INA §236(a)(2) (2015) (emphasis added).
The statute is not applicable to aliens committed certain crimes and does not necessarily provide work authorization.
Interestingly, Department of Homeland Security (“DHS”)/Immigration and Customs Enforcement (“ICE”) routinely grants “conditional parole” under the same statutory provision. When the government releases an alien, it issues a Form I-220A, Order of Releases on Recognizance. The standard language includes “… in accordance to section 236 of Immigration and Nationality Act . . . , you are being released on your own recognizance provided you comply with the following conditions.” The conditions associated with the release will typically include “report for any hearing or interview as directed,” “surrender for removal from the United States if so ordered,” and must report to officer as listed. Form I-220A policy is outlined in Chapter 11.1 of the ICE Detention and Removal Operations Policy and Procedure Manual (DROPPM) (formerly the Detention and Deportation Officer's Field Manual, or DDFM)) (stating the District Director has the discretion to release adult and juvenile aliens from detention on an Order of Release on Recognizance and set appropriate conditions for the release).
On October 16, 2014, the ACLU Immigrants’ Rights Project (“IRP”) filed a class action lawsuit on behalf of detainees in the United States District Court in Seattle, challenging immigration courts’ policy of refusing to hear conditional parole requests. The case is Rivera v. Holder, and here is the link if you would like to find out more about the ongoing litigation: https://www.aclu.org/cases/rivera-v-holder?redirect=immigrants-rights/rivera-v-holder
While Rivera v. Holder was pending, the government conceded that section 236 authorizes conditional parole requests in a brief to the Board of Immigration Appeals (“Board”). The government agreed in In re V-G-, filed with the Board on January 21, 2015 that “no authority precludes an Immigration Judge from releasing a respondent on conditional parole under INA § 236(a)(2)(B).” The Board has not yet issued a decision in In re V-G-.
Six months after Rivera was filed, the District Court held that the plain language of Section 236(a) requires the IJ to consider conditional parole as an alternative to release on a monetary bond. If you are interested in reading more about the Court’s reasoning, you can find it here: https://www.aclu.org/sites/default/files/field_document/rivera_v_holder_order_granting_class_cert_and_msj_4_13_15.pdf
Although the Rivera court did not specify what conditions can be imposed, it made clear that the request for conditional parole must be considered prior to the bond hearing. The decision will help immigrants seek release and remain outside of custody when their removal proceedings are pending, especially when there is a great delay from the date of detention to the date of the first hearing.
ACLU’s victory in the State of Washington has not been tested in Minnesota, yet. Wilson Law Group looks forward to litigating this question to curtail the government’s power to detain individuals endlessly. If you have a loved one who ICE is detaining, please call us today.