X-K

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                              In re X-K-, Respondent
                                  Decided May 4, 2005
                              U.S. Department of Justice
                       Executive Office for Immigration Review
                           Board of Immigration Appeals

    An alien who is initially screened for expedited removal under section 235(b)(1)(A) of
the Immigration and Nationality Act, 

(b)(1)(A) (2000), as a member of the
class of aliens designated pursuant to the authority in section 235(b)(1)(A)(iii), but who is
subsequently placed in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a
(2000), following a positive credible fear determination, is eligible for a custody
redetermination hearing before an Immigration Judge unless the alien is a member of any
of the listed classes of aliens who are specifically excluded from the custody jurisdiction of
Immigration Judges pursuant to 

(h)(2)(i) (2004).
FOR RESPONDENT: Benjamin Cox, Esquire, San Antonio, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Juan Carlos Rodriguez,
Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MOSCATO, and PAULEY, Board Members.
GRANT, Board Member:

   This is one of several appeals filed by the Department of Homeland
Security (“DHS”) in which it contends that Immigration Judges lack
jurisdiction to redetermine the custody status of aliens in the respondent’s
circumstances. The DHS argues that an alien who has initially been
considered for removal under the expedited removal proceedings of section
235(b)(1) of the Immigration and Nationality Act, 

(b)(1)
(2000), as a member of the class of aliens designated pursuant to the authority
in section 235(b)(1)(A)(iii), but who has been placed in removal proceedings
under section 240 of the Act, 8 U.S.C. § 1229a (2000), following a positive
credible fear determination, remains under its exclusive custody jurisdiction
pursuant to section 235(b)(1) of the Act and is not eligible for a bond
redetermination hearing before an Immigration Judge.1 We disagree.
   Immigration Judges have custody jurisdiction over aliens in section 240
removal proceedings, with specifically designated exceptions. See 8 C.F.R.

1
  We will grant the DHS’s Motion to Accept a Late Filing as a matter within our discretion.

(c) (2004). Our consideration of the late brief did not significantly delay
our decision in the case, and because we are dismissing the DHS’s appeal, the respondent
has not been prejudiced.

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§ 1236.1(c)(11) (2004). The regulations at 

(d) provide that
after the DHS has made an initial custody determination, a respondent in
section 240 removal proceedings may seek a change in custody status at any
time before he is subject to a final removal order. The regulation specifically
states that until there is a final removal order in the section 240 removal
proceedings, Immigration Judges have jurisdiction “to exercise the authority
in section 236 of the Act . . . to detain the alien in custody, release the alien,
and determine the amount of bond . . . as provided in § 1003.19.” 

(d)(1). Specific classes of aliens that are excluded from the
Immigration Judges’ general custody jurisdiction are listed in 

(h)(2)(i) (2004). However, that list does not include aliens, such as
the respondent, who have been placed in section 240 removal proceedings
after having been initially screened and detained for expedited removal as
“certain other aliens” pursuant to the authority in section 235(b)(1)(A)(iii) of
the Act.
   The DHS maintains that such aliens remain within its exclusive custody
jurisdiction because of their status as aliens who originally came into its
custody for processing under section 235 expedited removal proceedings. By
way of background, the DHS, through the authority granted at section
235(b)(1)(A) of the Act, may screen two classes of aliens for expedited
removal: “arriving aliens,” as defined in 

(q) (2004), and
“certain other aliens,” as designated by the Secretary of Homeland Security in
his discretion.2 See sections 235(b)(1)(A)(i), (iii)(I) of the Act; 

(b)(1)(i), (ii) (2004). There is no question that Immigration Judges
lack jurisdiction over arriving aliens who have been placed in section 240
removal proceedings, because they are specifically listed at 

(h)(2)(i)(B) as one of the excluded categories.
   The class of aliens who are subject to expedited removal under section
235(b)(1) as “certain other aliens” is designated by the Secretary of Homeland
Security by the publication of a notice in the Federal Register. See 

(b)(1)(ii). Pursuant to his statutory and regulatory authority, the
Secretary of Homeland Security, on August 11, 2004, published such a notice
designating the class of “certain other aliens” as follows:
    Aliens who are inadmissible under sections 212(a)(6)(C) or (7) of the Act, who are
    physically present in the U.S. without having been admitted or paroled following
    inspection by an immigration officer at a designated port-of-entry, who are encountered
    by an immigration officer within 100 air miles of any U.S. international land border, and
    who have not established to the satisfaction of an immigration officer that they have been


2
  This authority was transferred from the Attorney General to the Secretary of Homeland
Security as designated under the Homeland Security Act of 2002, 

 Stat. 2135. See Notice Designating Aliens For Expedited Removal, 

, 48,878 (Aug. 11, 2004).

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    physically present in the U.S. continuously for the 14-day period immediately prior to
    the date of encounter.

Notice Designating Aliens For Expedited Removal, 

,
48,880 (Aug. 11, 2004). For purposes of deciding the legal issue before us,
we will assume that the respondent falls within the designated class as claimed
by the DHS.3
   As a general matter, the Act provides for the immediate removal, without
further review, of aliens who are subject to section 235(b)(1) expedited
removal proceedings. Section 235(b)(1)(A)(i) of the Act; see also 

(b)(2)(ii). However, where, as here, an alien has either indicated a
desire to apply for asylum or has expressed a fear of persecution, the alien may
not be immediately removed and must be referred to an asylum officer for a
credible fear interview. Sections 235(b)(1)(A)(i), (ii) of the Act; 

(b)(4).
   In this case, the asylum officer determined that the respondent demonstrated
a credible fear of persecution and complied with the regulatory requirement
of issuing a Notice to Appear (Form I-862) for full consideration of the
respondent’s asylum and withholding of removal claims in section 240
removal proceedings. 

(f) (2004). There is no authority to
issue a Notice and Order of Expedited Removal (Form I-860) in these
circumstances.
   In cases where the asylum officer determines that the alien does not have
a credible fear, the alien may request review of the negative credible fear
determination with an Immigration Judge in proceedings under 

(g). In such cases, the alien is served with a Notice of Referral to
Immigration Judge (Form I-863). In these proceedings, the Immigration
Judge’s jurisdiction is limited to review of the asylum officer’s negative
credible fear determination. 

(g). If the Immigration Judge
agrees with the asylum officer that the respondent has not established a
credible fear, the expedited removal order is given effect. If the Immigration
Judge finds that a credible fear has been established, however, the expedited
removal order is vacated, and if the alien is not a stowaway, the DHS may
initiate section 240 removal proceedings in which the alien may apply for
asylum and withholding. 

(g)(2)(iv)(B).
   Therefore, once there is a final positive credible fear determination, whether
that determination became final upon the asylum officer’s initial positive
credible fear determination, or upon the Immigration Judge’s reversal of a
negative one, an alien is no longer subject to a section 235(b)(1) expedited
removal order.
3
  However, the respondent’s argument, i.e., that the bond record, as constituted before the
Immigration Judge, contained no documentary evidence showing that the respondent was
apprehended, inspected, and screened for expedited removal under section 235(b)(1) of the
Act, is well taken.

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   The Act provides for the mandatory detention of aliens who are being
processed under section 235(b)(1) proceedings “pending a final determination
of credible fear of persecution and, if found not to have such a fear, until
removed.” Section 235(b)(1)(B)(iii)(IV) of the Act (emphasis added). The
regulations also provide that pending the final credible fear determination, the
DHS has the authority to grant parole under section 212(d)(5) of the Act,

(d)(5) (2000), in certain limited circumstances. 

(a), (b), 1235.3(b)(4)(ii) (2004).4
   However, the expedited removal provisions in section 235(b)(1) of the Act
and its implementing regulations provide no specific guidance regarding the
custody jurisdiction over an alien in the “certain other aliens” class after there
has been a final determination that the respondent has a credible fear and
section 240 proceedings have been initiated. Indeed, the language in the Act
itself does not require that such aliens be placed in full section 240 removal
proceedings. However, there is legislative history suggesting that this
comports with the intent of Congress. See H.R. Conf. Rep. No. 104-828, at
209 (1996) (“If the officer finds that the alien has a credible fear of
persecution, the alien shall be detained for further consideration of the
application for asylum under normal non-expedited removal proceedings.”
(Emphasis added.)). The requirement that aliens who had initially been
screened for expedited removal be placed in full section 240 removal
proceedings after a final positive credible fear determination is clearly stated
in the regulations. See 

(f), 1235.6(a) (2004).
   The DHS argues that notwithstanding the fact that the respondent is now
in “normal non-expedited removal proceedings” under section 240 of the Act
and thus cannot have an expedited removal order entered against him, even
if he does not prevail on his applications for relief, it nonetheless retains
exclusive custody jurisdiction over the respondent. The Act is silent, the
legislative history suggests otherwise, and we are not persuaded that there is
regulatory authority for the DHS’s position that such aliens are not eligible for
a bond hearing before an Immigration Judge. H.R. Conf. Rep. No. 104-828,
at 209.
   As discussed earlier, the regulations allow Immigration Judges to exercise
the general custody authority of section 236 of the Act, 

(2000), over aliens in section 240 removal proceedings. 

(h)(2), 1236.1(c)(11), (d). We agree with the Immigration Judge
4
    We interpret the reference to the DHS’s continuing parole authority in 

(f) as pertaining only to stowaways. That reference is in the sentence immediately
following the sentence requiring that a stowaway with a positive credible fear determination
be referred to an Immigration Judge for “asylum only” proceedings. Stowaways are
consistently treated differently from other aliens throughout section 235 and its
implementing regulations, and they are not entitled to be placed in section 240 removal
proceedings, even after a final positive credible fear determination. See section 235(a)(2)
of the Act; 

(c)(1)(ii), 1208.30(g)(2)(iv)(B), (C), 1235.1(d)(4) (2004).

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that the respondent does not fit within any of the specified classes of aliens in
removal proceedings who may not have their custody status redetermined by
an Immigration Judge. For example, as noted above, arriving aliens in
removal proceedings are specifically excluded from the custody jurisdiction
of Immigration Judges by 

(h)(2)(i)(B). There is nothing
in the general detention provisions in 

 and 1236.1
excluding the class of aliens that the DHS has designated as “certain other
aliens,” even though, like arriving aliens, they also may have initially been
screened for expedited removal under section 235(b)(1) of the Act.
   Likewise, in the regulations implementing section 235(b)(1) of the Act
itself, there is a specific statement that “arriving aliens” who are placed in
section 240 removal proceedings “shall be detained in accordance with section
235(b) of the Act” and may only be considered for parole under 

(b). See 

(c). Again, there is no parallel provision
pertaining to “certain other aliens” who were initially screened for expedited
removal, but who are in removal proceedings pursuant to a final positive
credible fear determination. This regulation does lend support to the DHS’s
position that section 235(b) provides the detention authority for certain aliens
in section 240 removal proceedings. However, it applies only to arriving
aliens and is therefore consistent with the specific limit placed on the custody
jurisdiction of Immigration Judges by 

(h)(2)(i)(B).
   The absence of a parallel provision to 

(c) addressing the
custody jurisdiction over “certain other aliens” who are placed in removal
proceedings leaves us with a regulatory gap. However, we are bound to
follow the regulations published at Title 8, Chapter V of the Code of Federal
Regulations, entitled Executive Office for Immigration Review, Department
of Justice. The gap in those regulations is not filled by language published in
the Department of Homeland Security’s August 11, 2004, notice in the
Federal Register regarding the Immigration Judge’s authority to conduct bond
redeterminations. See Notice Designating Aliens for Expedited Removal,
69 Fed. Reg. at 48,877-81. The DHS relies on language in paragraph (4) of
this notice, which states the following:
     Aliens detained pursuant to the expedited removal proceedings under section 235 of
     the Act (including those aliens who are referred after a positive credible fear
     determination to an immigration judge for proceedings under section 240 of the Act)
     are not eligible for bond, and therefore not eligible for a bond redetermination before
     an immigration judge.

Id. at 48,880-81 (emphasis added).
   Section 235(b)(1)(A)(iii) of the Act and 

(b)(1)(ii) grant
to the Secretary of Homeland Security the discretionary authority to make
changes in his designation of which aliens will be included in the class of
“certain other aliens” who may be screened for expedited removal pursuant
to section 235(b)(1)(A) of the Act by publication of such a notice. However,

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those provisions do not expressly alter the jurisdiction conferred by the
regulations on Immigration Judges to redetermine the custody status of aliens
in removal proceedings.
   We find that under the current regulations, the Immigration Judge did not
act outside of her general custody jurisdiction over aliens in removal
proceedings. 8 C.F.R § 1236.1(d)(1). For many of the aliens who belong to
the class of aliens designated pursuant to section 235(b)(1)(A)(iii) of the Act,
the recency of their arrival and their apprehension by immigration officials so
close to our borders may prove to be an indicator that they lack a stable
address and work history, family ties, or other favorable factors to support a
discretionary release on bond. Others, however, may have been living,
working, and raising a family in the United States for many years, but were
either absent for some part of the 14 days preceding their apprehension by the
DHS or were unable to provide adequate evidence to prove their continuous
physical presence for that period. Some aliens may demonstrate to the
Immigration Judge a strong likelihood that they will be granted relief from
removal and thus have great incentive to appear for further hearings.
Immigration Judges must assess these and other traditional discretionary bond
factors with respect to “certain other aliens,” who were initially considered for
expedited removal, in the same manner as other aliens who are within the
Immigration Judges’ general custody jurisdiction in removal proceedings. See
Matter of Adeniji, 

 (BIA 1999).
   We will affirm the Immigration Judge with respect to her determination that
she has custody jurisdiction over the respondent. However, the annotated
custody order is inadequate to serve as a proper bond memorandum because
it fails to articulate the factors considered by the Immigration Judge in
reaching her conclusions that the respondent has met his burden of proving
that he does not pose a danger or a flight risk, and that a $3,000 bond
condition is sufficient to ensure his presence at future proceedings.5 See
generally Matter of A-P-, 

 (BIA 1999). Accordingly, we will
vacate the Immigration Judge’s release order and remand the record for a full
bond memorandum and decision.
   ORDER: The appeal of the Department of Homeland Security is
dismissed with respect to the jurisdictional issue.
   FURTHER ORDER: The November 15, 2004, release order of the
Immigration Judge is vacated. The record is remanded to the Immigration
Court for further proceedings consistent with this decision, and for the entry
of a new decision.



5
   The Board’s authority to make new findings of fact on appeal is limited by 

(d)(3)(iv) (2004).

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