June 21st, 2011 
Max Nuyen In the Matter of –(3/6/2009)
I discovered this case recently while researching some issues pertaining to ISAP. It’s not available to the public because it has not been published. The decision was written by an immigration judge in Florida, so it has no real precedential authority, but its legal discussion is valuable nonetheless because it offers a good strategy for dealing with ISAP and being forced to wear the hated GPS ankle device.
I’ve written here and here that some immigration judges consider ISAP to be a condition of release from custody, and therefore, an immigration judge has the authority to modify the terms of such release provided that the person makes an application for modification within seven days of being placed in ISAP. The timing is important for jurisdictional reasons. Otherwise, only the District Director may order release from ISAP (something ICE is rarely inclined to do).
In this case, an immigration judge took a different position. He concluded that the ISAP program, where it required the person to wear an ankle GPS device and to check in regularly with ISAP officials, is a form of detention and custody, and therefore, an immigration judge has the authority under §236 of the INA, and 8 C.F.R. §§ 1003.19, 1236.1(d) to sustain the detention, release the person, or determine the amount of bond, if any, under which the person may be released. Generally, once an alien is taken into custody by DHS, an immigration judge has jurisdiction to make a determination as to the necessity for continued detention. Because ISAP is a form of custody, the judge may order the alien released from such custody upon payment of a bond.
This decision is noteworthy because the immigration judge found, despite DHS’s argument to the contrary, that the respondent was “in custody” even though she was not physically detained by ICE. She was merely required to wear a GPS ankle device and report to the local ISAP office on a regular basis. The immigration judge used the legal reasoning from a series of Habeas case issued by the U.S. Supreme Court to arrive at his decision. In Jones v. Cunningham, 371 U.S. 236 (1962), the Court found that actual physical custody is not necessary to invoke habeas when there are other restraints on liberty, such as when an individual loses the freedom to go where she pleases. A person paroled from prison and placed in the charge of a parole board is still in custody. In Hensley v. Municipal Court, 411 U.S. 345 (1973), the court expanded on this concept, and found that a prisoner who was released from physical custody but who was required to appear at all times and places ordered by state authorities was “in custody” for habeas purposes. The prisoner was subject to restraints not shared by the general public and cannot come and go as he pleases; therefore, habeas protection applies.
The underlying principals of the above cases are that “custody” need not be physical restraint, and custody can exist even after a person has been released on his or her recognizance. For these reasons, ISAP is a form of custody for purposes of § 1236.1(d) because it imposes extraordinary restraints on a person’s liberty. Thus, an immigration judge has the authority to order an alien’s release from such custody if certain conditions are met. That is, the respondent is not a danger to society, and is not a flight risk.
Until the BIA or the federal appellate courts specifically rules on this issue, it is still an open question as to how other immigration courts will decide. For the time being, it will be case by case. Nonetheless, this decision is still helpful because it is well reasoned and offers a good roadmap for filing a successful petition with the immigration court.
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Hello. I’ve been in ISAP program for about 3 months now. I’m waiting for a asylum master hearing. It’s there a way I can get out of ISAP program? I know the program it’s suppose to help us but all it really do is make us feel like criminals.
If you want a more detailed response, it is better to submit a question through our “contact” form, rather than asking it on the comments section. I can’t give legal advice unless your confidentiality is protected.
federal immigration law…
[…]Immigration Judge Finds ISAP is a Form of Custody | Immigration News & Analysis[…]…
I have a friend in Adelanto Detention Center, he want to enroll on ISAP program but Don’t know what need do to enroll. He tray to call at 800)597-4568 but the sistem is computarised and don’t acept calls from the detention center. Please tell me what need do. Thanks.
My boyfriend has been on the isap program for about three years now and he hasnt had any improvment yet, he is still having home visit, office visit and wearing a ankle braclet. now its getting to the point where he doesnt like chargering the braclet or reporting to the office because he feels as thought there hasnt been any progress from the isap or ice people. what can he do to get out of the program and have a normal life again!
I would need more information to fully respond. Have your boyfriend contact me and I might be able to help. Meanwhile he needs to continue playing by the rules!
I am doing research on this topic and would love to get a copy of the opinion – or be directed to someone who can give me the opinion. I’m at jcd224@law.georgetown.edu. Thanks so very much! – Jen
hola que yo he estado en el programa ISAP; por 7 meses y todavia no boy a mi primera audiencia, pero debo comentar que me pusieron a prueba con el brazalete pero no mas 7 meses, despues me lo quitaron y hoy en dia solo me estoy reportando cada mes y por el telefono. aun no se que va a pasar con migo el dia que me toque ir ala audiencia con el juez pero en verdad si tengo un poco de preocupacion si es que el juez decide mandarme a mi pais. bueno espero que aquellas personas que se encuentren talvez en la misma situacion les valla bien en hora buena suerte………………………….
I just got realeased from MiraLoma and was placed on ISAP after being released on OR, i freaking hate the thing but the ISAP office in downtown LA said that i can get the bracelett thing taken off if I get a homephone and recent passport, will do.
I just recently got a call from ISAP and they told me that I can get off ISAP if I pay the bond. Asking me to tell my lawyer to make a letter to DHS so I can be off their program. I have been on ISAP for almost a year now in August. I only wore the bracelet for about a month because we filled for a petition for that removal and since then I have been complying to their home visits and office visits. However since I only work part time I can’t afford to pay the bond. Is there anything I can get off Isap without paying any bond. In reality they are allowing me to get off the program because I have been a good participant, I would love to get my life back. however Obama cut my hours even shorter because of the Obama care and the company I work for does not wanna give health benefits to any part timers. I need some answers. Thank you
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I was wondering how I can get off isap, I currently have six kids all born here, it’s so tough reporting every week, and taking care of kids with there schedule, expensive to drive up to Newark too, please advice, I am actually also suffering from a life threatening disease but they don’t seem to care. I don’t have a lawyer though, please help or advice. Thanks