Interim Decision #1939
MATTER Or Au
In Bond Proceedings
A-15989188
Decided by Board November 15, 1968
The Board of Immigration Appeals has jurisdiction to entertain an appeal
from a bond determination pursuant to section 242 (a) (2) of the Immigration and Nationality Act, as amended, and 8 CFR 242.2 (b) where the
alien is in custody pursuant to an order of deportation and a petition for
review of the deportation order has been filed under section 106 of the
Act, as amended, thereby effecting an automatic stay of deportation.
Ox fluwArY OF RESPONDENT: Thomas Sung, Esquire
217 Park Row
New York, New York 10038
Pursuant to the provisions of 8 CFR 242.2 (b) , the respondent
herein appeals from a decision of the District Director entered on
October 25, 1968 denying his application for release- on bond.
Counsel on appeal maintains that the respondent's deportation is
not imminent and his continued detention is a punishment which
prevents him from pursuing his legal remedies.
The respondent, a native of China and a citizen of the Republic
Id China on Formosa, unmarried, male, 46 years of age, last entered the United States through the port of New Orleans, Louisiana on June 27, 1967. He was admitted as a nonimmigrant crewman authorized to remain in the United States for the period of
time his vessel remained in port, in no event to exceed 29 days.
Deportation proceedings were instituted against the respondent
on December 7, 1967, and following a hearing accorded him on
December 8, 1967, he was found deportable on the charge stated
in the order to show cause. The, special inquiry officer granted
him the privilege of voluntary departure. The order also provided
that if the respondent failed to depart when and as required, he
be deported to Japan, the country designated by him, and in the
alternative to the Republic of China on Formosa. This decision
became final when no appeal was taken therefrom.
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Interim Decision #1939
Thereafter, the Service moved on April 29, 1968 that the deportation proceedings be reopened for the purpose of affording
the special inquiry officer an opportunity to designate the British
Crown Colony of Hong Kong as a country to which the respondent's deportation should be effected inasmuch as both Japan and
the Republic of China on Formosa had advised that the respondent would not be accepted into either country as a deportee. The
motion was granted and a reopened hearing was held at New
York on July 29, 1968. The respondent, during this hearing, renewed his application for the discretionary relief of voluntary departure, which was denied by the special inquiry officer as a matter of discretion and an order was entered providing for his
deportation to Hong Kong. The order further provided that
should the respondent present a paid ticket for departure from
the United States within 10 days, the proceedings would again be
reopened and further consideration given to the matter of voluntary departure. An appeal from this decision was dismissed by
the Board of Immigration Appeals on September 10, 1968. A
warrant of deportation was issued on September 13, 1968, and on
October 9, 1968, the respondent was ordered to surrender for deportation on October 21, 1968.
The respondent on October 16, 1968 filed a petition for review
in the United States Court of Appeals for the Second Circuit
challenging the Board's order of September 10, 1968 which denied the privilege of voluntary departure. The service of that petition stayed execution of the order of deportation pursuant to
section 106(a) (3) of the Immigration and Nationality Act.
The respondent on October 21, 1968 surrendered to the custody
of the Immigration Service pursuant to the order of the District
Director to report for deportation. Counsel for the respondent, on
October 24, 1968, filed an application for release on bond, alleging
that since a petition for judicial review was pending, it would appear that the deportation of the respondent is not imminent, and
the District Director has the authority to release the respondent
on bond.
The District Director on October 25, 1968 denied the respondent's application for release on bond, alleging that the petition
for review was patently frivolous and merely a dilatory tactic to
avoid deportation. The District Director stated in his order that
he had been informed by the United States Attorney for the
Southern District of New York that the United States Attorney
is prepared to brief and argue the petition for review on an accelerated basis. The District Director also stated that if counsel for
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Interim Decision # 1939
the respondent was truly desirous of promptly presenting the issues to the court, he could make a motion for an accelerated hearing. The District Director states in his memorandum of referral
that there are no statutory provisions for an appeal from his decision and refers to the fact that counsel did not submit a petition
for acceleration of the hearing before the United States Court of
Appeals for the Second Circuit. The District Director in his memorandum of referral also maintains that the respondent's failure
to avail himself of voluntary departure on two previous occasions
creates doubt as to the sincerity of his quest for voluntary departure.
The first issue before us is whether this Board has jurisdiction
in this proceeding in light of the District Director's claim that
there are no statutory provisions for an appeal from his decision
denying release on bond. The District Director cites no authority
for his position. Section 242 (a) of the Immigration and Nationality Act does not preclude an appeal of a denial of an application
for release on bond in the instant case, because by its very terms
the purpose of the detention authorized by the statute is "to effect
the alien's departure from the United States" (emphasis supplied), and under the provisions of section 106(a) (3) 3 departure
cannot be effected while the deportation order is under judicial
'review by the Court of Appeals for the Second Circuit. It has
been held that when proceedings for judicial review are pending,
during the interval between the final administrative deportation
order and the final order of the court, the arrest and detention
provisions of section 242 (a) are applicable. Rubinstein v. Brownell, 206 F.2d 449, 455 (D.C. Cir., 1953), aff'd
346 U.S. 929,
98 L.
Ed. 421 (19M).
It is true that 8 CFR 242.2(b) provides, inter alia, that the
provisions of this regulation "concerning notice, reporting, and
appeal shall not apply when the Service notifies the alien that it
is ready to execute the order of deportation and takes him into
custody for that purpose." However, this does not preclude an appeal to this Board in the instant case; the Service is not ready to
execute the order of deportation because the statute grants an automatic stay of deportation pending "determination of the petition by the court" (section 106 (a) (3), Immigration and Nationality Act).
That portion of section 106 (a) (3) germane to the instant case reads:
"The service of the petition for review upon such official of the Service shall
stay the deportation of the alien pending determination of the petition by
the court ..."
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Interim Decision # 1939
Furthermore, we find nothing in section 106 (a) (7) of the Act
which limits an appeal to this Board in the instant case. The first
sentence of this provision merely states that the Attorney General is not required "to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review." (Emphasis supplied.) This means only that during the
six-month period during which the right of judicial review is
made available by section 106 (a) (1), deportation need not be
stayed in behalf of an alien who has not availed himself of that
right. The right in the instant case has been exercised and the
statutory stay of deportation is in effect. The case is now in that
interval between the final administrative deportation order and
the final order of the court.
The second sentence of section 106 (a) (7) states: '
Nothing- contained in this section shall be construed to preclude the Attorney General from detaining or continuing to detain an alien or from taking
him into custody pursuant to section 242(c) of this Act at any time after
the issuance of a deportation order.
This provision merely means that the new form of judicial review
provided for by section 106(a), with its automatic stay of deportation, does not interfere with the Attorney General's power to
detain an alien, heretofore conferred by section 242(c). Stay of
deportation pending judicial review, which is designed to preserve the res, is automatic under the statute. The power of detention, which is designed to preserve the alien's availability for deportation, is committed to administrative discretion; there is
nothing automatic about it. The two concepts are disparate and
are governed by different considerations.
There is nothing in the provision just quoted above which bars
an appeal from an administrative detention determination. By its
very terms, section 242(c) is concerned with the detention of an
alien for the purpose of "effect[ing his] departure from the
United States" following "the date of the final order of the court"
if there is judicial review. This Board held recently in Matter of
Guerra, Int. Dec. No. 1914 (October 17, 1968), that 8 CFR
242.2 (b) precludes our jurisdiction to review detention determinations once the alien has been taken into custody for deportation; but that case did not involve judicial review. Where, as
here, review proceedings are pending in court which may take a
long time before final conclusion, we cannot believe that the regu- ,
lationedmkhDistrceo'dntrmination administratively conclusive. On the basis of the foregoing
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Interim Decision #1939
we conclude that an appeal in bond proceedings pursuant to section 242 (a) (2) of the Act and 8 CFR 2422(b) is within the jurisdiction of this Board in the instant case.
This brings us to the merits of the appeal. The District Director in his order denying release on bond refers to the fact that
the respondent has failed to effect his departure voluntarily on
two prior occasions. He takes the position that the respondent's
petition for review is patently frivolous and merely a dilatory
tactic to avoid deportation. He also refers to the fact that the respondent did not take advantage of the special inquiry officer's
offer to reconsider the application for voluntary departure in the
event the respondent presented a paid ticket for departure from
the United States within 10 days of the decision.
We are in no position to judge the sincerity of the respondent's
petition for review. We do note, however, that the respondent
was unable to depart for Japan, the country of his choice, because
that country would not accept him. He cannot return to the country of his nationality, namely, the Republic of China on Formosa,
for similar reasons. The respondent was enlarged on bond in the
amount of $2,500 during the period of 10 months between the institution of deportation proceedings on December 7, 1967 and the
date he reported voluntarily for deportation on October 21, 1968.
It is alleged in the notice of appeal that in the normal course of
events, the respondent's petition cannot be heard until sometime
in January 1969. We find no basis for the continued detention of
the respondent in light of his prior record while enlarged on
bond. The fact that counsel for the respondent has made no move
to accelerate the hearing before the Court of Appeals should not
be held against the respondent. Counsel may or may not have reasons for his failure to take advantage of the offer of the United
States Attorney for the Southern District of New York to argue
the petition on an accelerated basis.
We can sympathaize with the District Director's feelings. The
automatic stay of deportation afforded by section 106(a) (3) does
open the door to dilatory opportunities in frivolous cases, and the
District Director so views this case. Undoubtedly, the continued
detention of the alien could be used as leverage to bring about his
attorney's consent to an accelerated hearing in the Court of Appeals. However desirable that end might seem, we cannot justify
the alien's continued detention as the means to that end.
The statute makes it clear that the detention power was designed for use, where needed, to make the alien available for
hearing and, if ordered, for deportation. Denial of bail has been
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Interim Decision #1939
sustained by the courts only where it has been demonstrated that
the alien is not a good risk security-wise, Carlson v. Landon, 342
U.S. 524,
96 L. Ed. 547 (1952), or bail -wise, Marks v. Esperdy,
198 F. Supp. 40 (S.D.N.Y., 1961); Kordic v. Esperdy,
279 F.
Supp. 880 (S.D.N.Y., 1967). This respondent obviously fits into
neither category. To deny enlargement to an otherwise bailable
alien merely because he has sought judicial review would constitute an impermissible restraint on the statutory right of judicial
review, however justified the District Director might be in his
conclusion that the litigation is frivolous and brought solely for
delay.
There are other means of dealing with litigation which is
purely dilatory. Frivolous actions are subject to summary dismissal or affirmance on motion, Fuentes-Torres v. Immigration
and Naturalization Service,
344 F.2d 911 (9th Cir., 1965), cert.
denied
382 U.S. 846. The automatic stay of deportation afforded
by section 106 (a) (3) remains effective only "unless the court
otherwise directs." In a proper case, the Court of Appeals may be
induced on motion to dissolve the stay. Attorneys who persistently engage in abuse of process by bringing actions purely dilatory in frivolous eases may be brought to account by the courts
whose officers they are. In any event, continued detention of the
alien is not the way to deal with the problem of vexatious litigation.
Under the circumstances, we will enter an appropriate order
releasing the respondent conditioned upon the posting of an acceptable appearance and delivery bond in the amount of $2,500.
ORDER: It is directed that the alien be released from custody
conditioned upon the posting of an acceptable appearance and delivery bond, in the amount of $2,500.
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