(a) Warrant of Arrest. At the commencement of any proceeding under this part, or at any time thereafter and up to the time respondent becomes subject to supervision under the authority contained in the Act, the respondent may be arrested and taken into custody under the authority of a warrant of arrest. However, such warrant may be issued by no one other than a member of the board, and then only whenever, in his/her discretion, it appears that the arrest of the respondent is necessary or desirable and is substantiated by an affidavit. If, after the issuance of a warrant of arrest, a determination is made not to serve it, any officer authorized to issue such warrant may authorize its cancellation. When a warrant of arrest is served under this part, the respondent shall have explained to him/her the contents of the order to show cause: the reason for the arrest and right to be represented by counsel of his/her choice at no expense to the government. He/she shall also be advised of the availability of free legal service programs, if any, and furnished with a list of such programs. He/she shall be advised that any statement made may be used against him/her. He/she shall also be informed whether he/she is to be continued in custody, or if release from custody has been authorized, of the amount and condition of the bond or the conditions under which he/she may be released. A respondent on whom a warrant of arrest has been served may apply to the Attorney General for release or for amelioration of the conditions under which he/she may be released.

(b) Authority of the Immigration Board of Appeals. After an initial determination pursuant to subsection (a) of 41.080 1 of this chapter, and at any time before a deportation order becomes administratively final, upon application by the respondent for release from custody or for amelioration of the conditions under which he/she may be released, the board may exercise the authority contained in the Act to continue or detain a respondent in, or release him/her from custody, and to determine whether a respondent shall be released under bond, and in the amount thereof, if any. Application for the exercise of such authority may be made to the board. Consideration under this subsection by the board of an application or request of an alien regarding custody or bond shall be separate and apart from any deportation hearing or proceeding under this part, and shall form no part of such hearing or proceeding or of the record thereof, the determination of the board as to custody status or bond may be based upon any information which is available to the board or which is presented to the board by the alien or the officer.

(c) Revocation. When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time at the discretion of the Attorney General, in which event the alien may be taken into physical custody and detained. 1 f detained, unless a breach has occurred, any outstanding bond shall be revoked and cancelled. Subsection (b) of this section shall govern availability to the respondent of recourse to other administrative authority for release and custody.

(d) Privilege of Communication. Every detailed alien shall be notified that he/she may communicate with the counsel of diplomatic officers of the country of his nationality. Existing treaties require immediate communication with appropriate counselor of diplomatic officers whenever nationals or certain countries are detained in exclusion or expulsion proceedings, whether or not requested by the alien, and, in fact, even if the alien requested no communication be undertaken in his/her behalf. See Appendix A following this title.

History: Rule 3-86, eff 7 Dec 86.