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Intercultural Human Rights Law Review

First Page

89

Abstract

This article examines a regulation from which DHS derives a legal advantage in removal proceedings that significantly impacts the outcome of any deportation case. While several articles have provided a limited discussion on automatic stays in the greater context of mandatory and prolonged detention, the complexity and substantial impact of the automatic stay regulation merits a discussion devoted to it in its entirety. Part I of the article provides a general background to removal proceedings and bond hearings. Part II tells the story of Manuel who, as a result of invocation of the automatic stay, continued to be detained even after an immigration judge found him suitable for release. Part III discusses the relevance of 9/11 to the current version of the automatic stay regulations. Part IV compares the old regulations or interim rule (2001) with the new regulations or final rule (2006), as well as briefly surveys how several courts have treated them. Part V then discusses the way the Supreme Court has treated preventive detention and the question of when an individual can be held without bond. This section compares bail procedures in the federal criminal context to bond procedures in the immigration context. Lastly, Part VI provides a review of the Court's most recent decision regarding stays in the immigration context and concludes that the automatic stay regulations are in violation of the long-standing principle that a stay should not exist as a matter of right. In a time when the immigration detention system continues to expand, due process safeguards are critical to ensuring meaningful review of detention status for those in custody.

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