Bond in asylum-only proceedings (Form I-863): what applies

This is information, not legal advice.

This guide explains the general rules. What they mean for your family member depends on their circumstances. Answer a few questions to check their situation.

How to tell if it is an asylum-only case

Look at the paper that started the court case. A Notice to Appear (Form I-862) starts ordinary removal proceedings, where bond may be possible. A Notice of Referral to Immigration Judge (Form I-863) starts a limited proceeding. The judge decides only asylum, withholding of removal and protection under the Convention Against Torture (8 C.F.R. § 1208.2(c)).

People commonly referred on an I-863 include:

• Visa Waiver Program entrants, who came without a visa from a participating country and agreed on entry to waive the right to contest removal except through asylum (8 U.S.C. § 1187(b));
• crew members and stowaways;
• certain others the regulation lists.

Why there is no bond hearing

In Matter of A-W-, 25 I&N Dec. 45 (BIA 2009), the Board of Immigration Appeals held that immigration judges have not been given authority to redetermine custody for people who were not served a Notice to Appear. A Visa Waiver Program entrant in asylum-only proceedings is not entitled to a custody hearing before an immigration judge. A request for a bond hearing in an I-863 case will be denied for lack of jurisdiction.

What can still win release

• Ask ICE. ICE can release someone on parole or on conditions. Send a written request to the field office over the facility, with proof of identity (a passport is often already in ICE’s hands), a sponsor letter and proof of address, evidence of the asylum claim’s seriousness, and any medical or humanitarian facts. Follow up in writing.
• Federal habeas corpus. If detention stretches on for months without any hearing, a petition in federal district court can challenge it as a violation of due process. See habeas corpus for ICE detention and how to file one.
• Move the case quickly. Asylum-only cases are narrow. Filing the asylum application promptly and preparing the evidence shortens detention for anyone who has to stay inside until the decision.

Check the paperwork first

Families sometimes assume a relative is in asylum-only proceedings when the case actually started with a Notice to Appear, or the reverse. The difference decides whether a bond hearing is possible at all. Photograph the charging document and check its form number before choosing a route. If it is an I-862, see what is a bond hearing?

Questions people also ask

Can someone in asylum-only proceedings get a bond hearing?

Not from an immigration judge. The Board of Immigration Appeals held in Matter of A-W- that judges have no authority to redetermine custody for people who were not served a Notice to Appear, which includes Visa Waiver Program entrants referred on Form I-863.

Who is placed in asylum-only proceedings?

People who cannot be put in ordinary removal proceedings but ask for protection: most commonly Visa Waiver Program entrants and overstays, and also crew members, stowaways and certain others listed in the regulations.

How can someone in asylum-only proceedings be released from ICE detention?

By asking ICE to release them, on parole or conditions, with evidence of identity, a sponsor and any humanitarian factors; or, if detention becomes prolonged, by a federal habeas corpus petition.

See which release paths may apply

Check your family member’s situation to see which release options may apply, what to do next, and which documents to gather.