From time to time we run into this question — what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:
I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?
ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used (“reaosnable fear”), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.
The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).
The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).
It should be noted that because a credible fear determination stems from an aliens status as “arriving,” immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.