On  October 14, 2009, the Board of Immigration Appeals dismissed the Department of Homeland Security's appeal in the Matter of Hilario Antonio-Garcia.  In that case, DHS arrested a citizen of Guatemala, who entered the USA without inspection or parole and placed him in an Intensive Supervision Appearance Program ("ISAP"), requiring him to wear an electronic monitoring device on his ankle and comply with certain reporting requirements.  The respondent filed a motion for a custody redetermination hearing before the Immigration Judge requesting he be allowed to post a monetary bond as an alternative to his continued participation in the ISAP. The Immigration Judge denied the respondent's request for amelioration of the terms of his release.   In reaching her decision, the Immigration Judge found that she had broad jurisdiction to consider more than just the appropriate amount of bond (some of those factors include criminal record, ties to the community and flight risk).

The DHS filed a timely appeal arguing that the Immigration Judge exceeded her authority by considering whether the respondent had to continue his participation in the ISAP.   The Board of Immigration Appeals disagreed with DHS' position and held that an Immigration Judge does have jurisdiction to review and modify the condition placed on a respondent's release from DHS custody.

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