Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072


Tuesday, November 9, 2010

Pending petition for review plus stay of removal equals Immigration Court Bond Jurisdiction

Cuello v. Adduci, 2010 WL 4226688 (E.D. Mich. Oct. 21, 2010).

In this district court decision, Judge Battani adopted the reasoning expressed by the Ninth Circuit in the Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), line of cases.  See also Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001).  Where an alien is subject to an administratively final order of removal, timely files a petition for review with the circuit court, and receives a stay of removal from that court, the alien's "removal period" (INA s 241(a)(1)(B)) has not commenced.  Therefore, detention under section 241(a) is not authorized. 

Therefore, if detention is not pursuant to section 241, it must be pursuant to section 236(a).  The alien is therefore entitled to a bond hearing in Immigration Court while the petition for review is pending. 

In this case, the alien was not subject to mandatory detention under 236(c), so it is unclear if there would be bond jurisdiction if that section applied.  The Ninth Circuit has found that there would be following the entry of an administratively final order of removal.

No comments:

Post a Comment