W-F-D-

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Cite as 29 I&N Dec. 854 (BIA 2026) 	Interim Decision #4237
Matter of W-F-D-, Respondent
Decided August 25, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Immigration Judges generally lack jurisdiction to redetermine custody conditions once
an alien becomes subject to an administratively final removal order.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Christina Rosado, Counsel
BEFORE: 	Board Panel: 	GORMAN, Deputy Chief Appellate Immigration Judge;
CHABAN, Appellate Immigration Judge; TERRIEN, Temporary Appellate Immigration
Judge.
GORMAN, Deputy Chief Appellate Immigration Judge:
The 	Department 	of 	Homeland 	Security 	(“DHS”) 	appeals 	from 	an
Immigration 	Judge’s 	bond 	order 	dated 	March 	24, 	2026, 	granting 	the
respondent’s release from custody upon payment of a $1,500 bond. 	The
Immigration Judge issued a memorandum setting forth the reasons for the
bond decision on April 7, 2026. 	The appeal will be sustained, and the
Immigration Judge’s bond decision will be vacated.
The respondent, a native and citizen of the Democratic Republic of the
Congo, entered the United States without inspection or admission on
January 13, 2025. 	The respondent was arrested by United States Border
Patrol, detained, and issued a notice to appear charging her with removability
under sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), (a)(7)(A)(i)(I) (2024).
On June 23, 2025, an Immigration Judge sustained the removability
charges and ordered the respondent removed to the Democratic Republic of
the Congo. The Immigration Judge denied the respondent’s applications for
asylum under section 208 of the INA, 8 U.S.C. § 1158 (2024), and
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
§ 1231(b)(3) (2024). 	The Immigration Judge granted the respondent’s
application for withholding of removal to the Democratic Republic of the
Congo pursuant to the regulations implementing the Convention Against

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Torture (“CAT”).1 	The removal order became administratively final upon
the expiration of the time allotted for an appeal. 8 C.F.R. § 1241.1(c) (2026).
As an alien subject to a final removal order, the respondent’s detention is
governed by section 241(a) of the INA, 8 U.S.C. § 1231(a) (2024). An alien
subject to that statute “shall” be detained during an initial 90-day removal
period. 	INA § 241(a)(1), (2), 8 U.S.C. § 1231(a)(1), (2). 	After the 90-day
removal period expires, an inadmissible alien such as the respondent “may
be detained beyond the removal period” or released from custody under
supervision pursuant to section 241(a)(3) of the INA, 8 U.S.C. § 1231(a)(3).
INA § 241(a)(6), 8 U.S.C. § 1231(a)(6).2
DHS conducts custody determinations for aliens subject to post-removal-
period detention under the procedures set forth at 8 C.F.R. § 241.4 (2026).
The Supreme Court of the United States has construed section 241(a)(6) of
the INA, 8 U.S.C. § 1231(a)(6), “to contain an implicit ‘reasonable time’
limitation.” 	Zadvydas v. Davis, 533 U.S. 678, 682 (2001). After detention
of 6 months, “once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing.”
Id. at 701. In accordance with Zadvydas, the regulations implementing DHS’
custody 	review 	process 	were 	amended 	to 	establish 	additional 	review
procedures for aliens subject to post-removal-period detention. 	Continued
Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56967
(Nov. 14, 2001) (codified at 8 C.F.R. pts. 241.13, 241.14). The amendments
created procedures pursuant to which an alien subject to post-removal-period
detention may petition DHS for release by showing good reason to believe
that 	there 	is 	no 	significant 	likelihood 	of 	removal 	in 	the 	reasonably
foreseeable future. 	8 C.F.R. § 241.13 (2026). 	The amendments further
afforded DHS discretion to determine whether special circumstances (such
as serious adverse foreign policy consequences or security or terrorism
concerns) 	warrant 	continued 	detention 	even 	if 	there 	is 	no 	significant
1 	The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020).
2 	The same is true for aliens removable under sections 237(a)(1)(C), 237(a)(2), or
237(a)(4) of the INA, 8 U.S.C. § 1227(a)(1)(C), (a)(2), (a)(4) (2024), and those determined
by the Attorney General “to be a risk to the community or unlikely to comply with the
order of removal.” INA § 241(a)(6), 8 U.S.C. § 1231(a)(6).

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likelihood of removal in the reasonably foreseeable future. 8 C.F.R. § 241.14
(2026).
On 	March 	16, 	2026, 	the 	respondent 	filed 	a 	request 	for 	custody
redetermination with the Immigration Court. 	The respondent asserted that
her release on bond was warranted under 8 C.F.R. § 1003.19 (2026) because
her continued detention was adversely affecting her health and she had been
detained for over a year, was granted CAT protection, posed no danger to the
community or flight risk, and had a financial sponsor and fixed residence.
The Immigration Judge held a custody redetermination hearing on
March 24, 2026. The Immigration Judge concluded that she could adjudicate
the respondent’s custody redetermination request because the Executive
Office for Immigration Review acts under the authority of the Attorney
General. 	The Immigration Judge further noted that Executive Branch
agencies are bound by their governing regulations, and “[i]t is a denial of due
process for any government agency to fail to follow its own regulations
providing for procedural safeguards to persons involved in adjudicative
processes before it.”3 	The Immigration Judge noted the Supreme Court’s
finding of no “clear indication of congressional intent to grant the Attorney
General the power to hold indefinitely in confinement an alien ordered
removed.” Zadvydas, 533 U.S. at 697. The Immigration Judge declined to
accept DHS’ documentation concerning its review process under 8 C.F.R.
§ 241.13 and faulted DHS for not providing witnesses who could testify
concerning the steps that had been taken to remove the respondent to a third
country.4 	The Immigration Judge ultimately granted the respondent’s
request for custody redetermination under Zadvydas and unspecified “time-
related regulations.”
Whether 	the 	Immigration 	Judge 	had 	jurisdiction 	to 	adjudicate 	the
respondent’s request for custody redetermination is a legal question that the
Board reviews de novo. 	8 C.F.R. § 1003.1(d)(3)(ii) (2026). 	It is well-
established that “the jurisdiction of this Board, and of the Immigration Judge,
3 	The Immigration Judge also stated in the bond memorandum that she issued “no
findings as to whether the respondent has made her bond request to the appropriate
authority.”
4 	Withholding of removal is a “country specific” form of protection and “nothing prevents
DHS from removing the alien to a third country other than the country to which removal
has been withheld or deferred.” Johnson v. Guzman Chavez, 594 U.S. 523, 531–32 (2021)
(citation modified). Thus, the respondent is subject to removal to any country except the
Democratic Republic of the Congo.

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is limited by statute and regulation to that which has been delegated by the
Attorney General.” 	Matter of H-M-V-, 22 I&N Dec. 256, 258 (BIA 1998).
Like an exterior gate or entryway to a home, jurisdiction is a threshold issue
that may not be bypassed before an adjudicator issues a dispositive legal
ruling like the one currently under review, which resulted in an alien subject
to a final removal order being released from detention. We reiterate that an
adjudicator may not cross the jurisdictional threshold gate absent an explicit
grant of authority in the INA or its implementing regulations.
Immigration Judges generally lack jurisdiction to redetermine custody
conditions once an alien becomes subject to an administratively final
removal order. Cf. 8 C.F.R. § 1236.1(d)(1) (2026) (authorizing Immigration
Judges 	to 	detain 	or 	release 	aliens, 	who 	have 	had 	an 	initial 	custody
determination by the district director, prior to a final order under section 240
of the INA, 8 U.S.C. § 1229a (2024)). 	The Supreme Court did not rule in
Zadvydas 	that 	Immigration 	Judges 	have 	jurisdiction 	to 	conduct 	bond
hearings for aliens in post-removal-period detention. In this regard, the Court
later clarified that section 241(a)(6) of the INA, 8 U.S.C. § 1231(a)(6), does
not require bond hearings before Immigration Judges for aliens detained by
DHS beyond the initial 90-day removal period. 	Johnson v. Arteaga-
Martinez, 596 U.S. 573, 580–82 (2022). The amendments to the regulations
following Zadvydas likewise do not afford Immigration Judges jurisdiction
to conduct bond hearings for aliens in post-removal-period detention.
Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed.
Reg. at 56967–56982. 	The only exception to this jurisdictional prohibition
is DHS’ referral of a matter to an Immigration Judge pursuant to 8 C.F.R.
§ 241.14(g) after DHS has determined that special circumstances warrant
continued detention of an alien for whom the removal period has expired.
Matter of A-W-, 25 I&N Dec. 45, 47 n.3 (BIA 2009). The Attorney General
has not delegated any further authority to Immigration Judges or the Board
to compel DHS to initiate a custody review under 8 C.F.R. § 241.13.
In the instant matter, DHS did not refer the respondent’s case to the
Immigration Judge under 8 C.F.R. § 241.14(g). No other jurisdictional basis
existed for the Immigration Judge to adjudicate the respondent’s request for
custody redetermination while she was in post-removal-period detention.
We therefore reverse the Immigration Judge’s conclusion that she had
jurisdiction to adjudicate the respondent’s bond motion.
Finally, a Notice to EOIR: Alien Address (Form I-830) shows that DHS
released the respondent from custody on April 2, 2026, upon her payment of
a $1,500 bond. 	We note that if DHS were to re-detain the respondent, she
would not be without administrative or judicial remedies. 	The respondent

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may initiate a custody review by submitting a written request to DHS
pursuant to 8 C.F.R. § 241.13(d)(1) or she may commence a habeas corpus
action in federal district court. See Zadvydas, 533 U.S. at 688 (“We conclude
that [28 U.S.C.] § 2241 habeas corpus proceedings remain available as a
forum for statutory and constitutional challenges to post-removal-period
detention.”). However, an Immigration Court is not the proper forum for an
alien detained under section 241(a)(6) of the INA, 8 U.S.C. § 1231(a)(6), to
argue that release on bond is warranted due to the absence of a significant
likelihood of removal in the reasonably foreseeable future.
Accordingly, we will sustain DHS’ appeal and vacate the Immigration
Judge’s bond order.5
ORDER: 	DHS’ appeal is sustained, and the Immigration Judge’s
March 24, 2026, bond order is vacated.
5 	Consequently, we need not determine whether a $1,500 bond was sufficient to ensure
the respondent’s appearance for the execution of her final removal order. 	See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies
are not required to make findings on issues the decision of which is unnecessary to the
results they reach.”); Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining
to reach alternative issues on appeal regarding ineligibility for relief where an applicant is
otherwise statutorily ineligible for such relief).