Deborah Capiro, Columbia Law School class of 2018

Photo credit: Jerry Lara, Staff, San Antonio Express-News.

The language of 8 C.F.R. 1236.1(d)(1) gives Immigration Judges authority to make custody re-determinations when a non-citizen is about to be released from immigration detention and beyond:

After an initial custody determination by the district director, including the setting of a bond, the respondent may, at any time before an order under 8 CFR 240 becomes final, request amelioration of the conditions under which he or she may be released.” “If the alien has been released from custody, an application for amelioration of the terms of release must be filed within 7 days of release.”

In addition to the federal regulations, the term “custody” appears in section 236 of the Immigration and Nationality Act (“INA”) as it pertains to the “Apprehension and Detention of Aliens.” Neither the INA nor the federal regulations define the term, and Congress has given the Department of Homeland Security (“DHS”), which enforces the immigration laws, no guidance on how to interpret it. However, DHS has construed custody to require physical confinement at a detention facility.[i]

The Supreme Court has affirmed that, besides physical imprisonment, there are other restraints on an individual’s liberty—not shared by the public at large—that constitute “custody.” An encompassing meaning of “custody” was first adopted in 1963 when the U.S. Supreme Court held that a petitioner’s release on parole satisfied the “in custody” requirement of habeas corpus jurisdiction.[ii] Fundamental to the Court’s reasoning was that, although the petitioner was released from physical confinement per se, the conditions of his parole continued to “significantly confine and restrain his freedom.”[iii] In Hensley v. Municipal Court, the Supreme Court further broadened the definition of “custody” when it held that a petitioner released on his own recognizance was “in custody” prior to trial but had to appear in criminal court when ordered because he was “subject to restraints not shared by the public generally.”[iv]

Federal Court of Appeals jurisprudence has also recognized that a variety of non-confinement restraints on liberty satisfy the custodial requirement. Most recently, in Nowakowski v. New York, the Second Circuit held petitioner was “in custody” for the purposes of habeas review when he was subject to conditional discharge requiring one day of community service.[v]

In addition to DHS’ narrow construction of custody, the Board of Immigration Appeals (“BIA”), the Executive agency adjudicating and interpreting U.S. immigration laws, has also chosen to apply a more limited definition in the immigration context that frustrates the ability of many immigrants to challenge restrictive conditions placed on their liberty. The most recent BIA precedent in Matter of Aguilar-Aquino relies on a distinction between “detention” or “actual physical custody” and other forms of restrictions on liberty, ignoring the Supreme Court’s broad definition of “custody,” as articulated in the context of habeas corpus. In this case, the DHS released the respondent from detention as long as he complied with wearing an electronic monitoring device on his ankle and remained in his residence between the hours of 7:00 p.m. and 7:00 a.m.[vi] Two months after his release, the respondent requested a redetermination of his custody status before the Immigration Judge, asking that the electronic monitoring device be removed and that he be released on his own recognizance. The Immigration Judge concluded the ankle monitor, an alternative program to detention, was a form of “custody” and the regulations (8 CFR § 1236.1(d)(1)) gave her jurisdiction to re-determine the conditions on the respondent’s custody status. On appeal, the BIA held that the Immigration Judge lacked jurisdiction to consider the respondent’s request for amelioration of the terms of his release given that he had been “released from custody,” thus defining “custody” to only include its most extreme form: actual physical detention.[vii]

In Matter of Garcia-Garcia, the BIA clarified the holding in Aguilar-Aquino by determining “custody,” as the term is used in 8 CFR § 1236.1(d)(1), requires actual physical restraint or confinement within a given space. The agency found the Immigration Judge lacked jurisdiction under 8 CFR § 1236.1(d)(1) to consider the respondent’s request for amelioration of the terms of his release where the respondent had been “released from custody” more than seven days prior to his request. The BIA reasoned that Congress used the terms “custody” and “detain” interchangeably and did not intend for them to be afforded different meanings. Furthermore, The BIA found the Immigration Judge’s reliance on federal habeas corpus jurisprudence to in determining the meaning of custody to be erroneous.[viii]

As the number of individuals detained not subject to mandatory detention—particularly mothers and children—has exponentially grown, DHS’ use of ankle monitors in setting release conditions has become the norm.[ix] Ankle monitors, in particular, are highly restrictive: they restrict an individual’s freedom of movement and require confinement in a specific space such as a private dwelling for approximately twelve hours per day. The BIA has not provided a satisfactory explanation as to why the definition of “custody” in the INA context cannot be afforded the broad interpretation employed in the habeas corpus jurisprudence—a definition of custody that would encompass restrictive release conditions that are not shared by the public at large.

[i] See INA § 236(c); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Michigan Journal of Law Reform. Page, Issue 4 (2015).

[ii] Jones v. Cunningham, 371 U.S. 236, 243 (1963).

[iii] Id.

[iv] Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

[v] Nowakowski v. New York, No.14-1964 (2nd Cir. 2016).

[vi] Matter of Aguilar-Aquino, 24 I&N Dec 747 (BIA 2009).

[vii] Matter of Aguilar-Aquino, 24 I&N Dec 747, 747 (BIA 2009).

[viii] The Immigration Judge had based its decision on cases like Jones v. Cunningham where the Supreme Court broadly interpreted “custody” to mean any restrain on personal liberty “not shared by the public generally.”

[ix] In July, 2015, ICE used approximately 9,300 ankle monitors—an increase of over forty percent since January 2015. Molly Hennessy-Fiske, Immigrants Object to Growing Use of Ankle Monitors After Detention, L.A. TIMES (Aug. 2, 2015), immigration/la-na-immigrant-ankle-monitors-20150802-story.html.