Interim Decision #2021
MATTER OF KWON
In Bond Proceedings
A-15997430
Decided by Board November 21, 1969
Service Motion January 8, 1970
Decided by Board February 13, 1970
Once an alien is notified to surrender for deportation and is taken into custody for that purpose, the special inquiry officer lacks jurisdiction pursuant to 8 CFR 242.2 (b) to entertain the alien's appeal from the District
Director's bail determination. Under such circumstances, appeal from the
District Director's determination lies only with the Board of Immigration
Appeals.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jules E. Coven, Esquire Irving A. Appleman
Lebenkoff & Coven Appellate Trial Attorney
One East 42d Street Charles Gordon
New York, New York 10017 General Counsel
(Brief filed)
BEFORE THE BOARD
(November 21, 1969)
Respondent, an alien detained by the District Director for deportation, appeals from an order of a special inquiry officer refusing to disturb the District Director's decision to continue respondent in custody notwithstanding the pendency of an action
for judicial review. The special inquiry officer ruled that he
lacked power under 8 CFR 242.2(b) to grant the relief requested,
and that, even if he possessed that power, relief should be denied
in the exercise of discretion. We conclude that the special inquiry
officer erred in both regards and we sustain the appeal.
From the special inquiry officer's order and the statements
made at oral argument, as well as from our two prior orders in
respondent's case, the following facts appear to be undisputed:
Respondent is an alien crewman who was found deportable after a
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Interim Decision #2021
hearing before a special inquiry officer on May 20, 1969 and was
granted voluntary departure. He failed to depart within the time
limited, a warrant for Ills deportation was issued, and he was directed to surrender on October 27, 1969 for deportation two days
later. He surrendered as requested and has been in Service custody since.
On October 20, 1969, counsel for respondent filed a motion to
reopen the proceedings to permit him to apply for adjustment of
status pursuant to sections 203 (a) (7) and 245 of the Immigration and Nationality Act. In his motion papers, counsel challenged as unconstitutional the provisions of section 245 excluding
crewman from its benefits. Coupled with the motion to reopen
was a request for a stay of deportation pursuant to 8 CFR 242.22
pending decision on the motion. The Service's trial attorney opnosed the stay and refused to waive the 10-day period afforded by
3 CFR 103.5 within which to file a brief in opposition to the motion. Without ruling on the motion, the special inquiry officer on
)ctober 27, 1969 denied the stay. On the same day, respondent
iled an appeal to this Board from the order denying a stay and
equested oral argument on the appeal.
The Service concluded that the appeal did not automatically
tay deportation under R CFR 3.6 and prepared to proceed with
espondent's deportation. On October 28, 1969, we denied coon-
21's telephonic request for a stay of deportation. In a confirmarry order dated October 29, 1969, we concluded that the motion
reopen must be denied since neither the special inquiry officer
Dr this Board has power to rule on the constitutionality of an
of Congress. We therefore held that the special inquiry officer
td properly denied the requested stay of deportation and we deed the stay application directed to us.
On October 29, 1969 counsel for respondent filed a petition for
view under section 106(a) of the Act in the United States
iurt of Appeals for the Second Circuit. We are told that it chaliges our order of October 29, 1969. Concluding that he was
and by the automatic stay of deportation afforded by section
6(a) (3) of the Act, the District Director held up respondent's
reduled deportation but determined that he should be continued
Service custody pending termination of the litigation.
When we received the record on respondent's appeal from the
?.cial inquiry officer's order denying a stay pending determinan of the motion to reopen, we promptly denied the request for
argument and summarily dismissed the appeal. In an order
ed November 3, 1969, we pointed out that we had already de-
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Interim Decision #2021
termined the merits of the order appealed from in our order
dated October 29, 1969.
Although the Service's trial attorney has filed no brief in opposition and the 10-day period provided by 8 CFR 103.5 has long
expired, the special inquiry officer has thus far deliberately refrained from formally adjudicating respondent's motion to reopen, for reasons which he explains in the order now before us on
appeal. That order, dated November 4, 1969, denied counsel's application for a redetermination, pursuant to 8 CFR 242.2(b), as
amended,' of the District Director's decision to continue respondent in custody pending termination of the review proceedings in
the court of Appeals.
1. The jurisdictional question
The special inquiry officer concluded that he lacked jurisdiction
because of the last sentence of 8 CFR 242.2 (b). That sentence
states that the provisions regarding the renewal of an application
or request for a determination by a special inquiry officer, and
appeal therefrom to this Board, "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."
In Matter of Au, interim Decision No. 1939 (BIA 1968), we
had construed the quoted language as not precluding administrative review of the District Director's detention determination in a
situation where the deportation order could not be promptly executed because of the automatic stay afforded by section
106(a) (3). We there stated, at page 6, "Where, as here, review
proceedings are pending in court which may take a long time before final conclusion, we cannot believe that the regulation intended to make the District Director's detention determination
administratively conclusive." The special inquiry officer in the instant case rejected the rationale of Matter of Au, stating (opinion, p. 4), "Sound administration and effective enforcement of
the law should not turn on the speculation of the Special Inquiry
Officer or the Board as to how long a case may take for disposition in the Court of Appeals or in the District Court."
At oral argument before the Board, the Service's Appellate
Trial Attorney receded from the Service's prior position before
the special inquiry officer on the jurisdictional question and
sought to justify the special inquiry officer's decision solely as a
proper exercise of discretion, distinguishing Matter of Au on the
1 34 Fed. Reg. 7327 (May 6, 1969) ;
34 Fed. Reg. 8037 (May 22, 1969).
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Interim Decision #2021
facts. Since the special inquiry officer's decision is posited largely
on his asserted lack of power, and since the question is an important one, we will reconsider it.
As we pointed out in Matter of Au, the Service's power to detain or enlarge an alien on bail during the course of deportation
proceedings and pending ultimate execution of a deportation
order is defined in section 242(a) and (c) of the Act. That power
was designed for use, where needed, to make the alien available
for hearing and, if ordered, for deportation. Denial of bail has
been sustained by the courts only where it has been demonstrated
that the alien is a security risk or is likely to abscond. Originally,
the Service's determination was administratively final and was
subject to review only in the courts.
In 1954, the Attorney General by regulation conferred appellate jurisdiction on the Board to review Service determinations
relating to an alien's bond, parole, or detention, 8 CFR 6.1 (b) (7) ;
3 CFR 242.2; 19 Fed. Reg. 2442 (July 20, 1954). The new regula-
:ion contained the identical language, quoted above, excluding appellate review when the Service notifies the alien that it is ready
,o execute the deportation order and takes him into custody for
hat purpose. That provision is now incorporated in 8 CFR
!42.2 (b) .
In Matter of Guerra, Interim Decision No. 1914 (BIA 1968),
ye concluded that we lacked jurisdiction under that provision to
eview a District Director's bail determination where the alien
Tas in Service custody for deportation. No review litigation was
ending in that case. In Matter of Au, supra, we held we had juisdiction because there was litigation pending and the statutory
ay of deportation precluded deportation. We found that the
lien was concededly a good bail risk who was being detained
)lely to exact his agreement to accelerated disposition of the libation, which the Service considered purely dilatory. We conuded that such use of the detention power is impermissible and
- dered the alien's release on bond.
Section 242.2(b) of the regulations was thereafter amended by
.gulations promulgated by the Commissioner, pursuant to Notice
Proposed Rule Making, 34 Fed. Reg. 5509 (March 21, 1969);
1 Fed. Reg. 7327 (May 6, 1969) ;
34 Fed. Reg. 8037 (May 22,
)69). Under the amended regulations, the appeal to this Board
•om the District Director's detention determination was elimiated. The application or request for release could be renewed,
)wever, before a special inquiry officer and his decision was
ade appealable to this Board. Continued without change was the
460
Interim Decision #2021
provision, quoted above, making the renewal procedure and appeal to this Board inapplicable when the Service is ready to execute the deportation order and takes the alien into custody for
that purpose.
There is nothing in the Notice of Proposed Rule Making or in
the text of the amended regulations to indicate that they were designed to change in any way the jurisdictional situation as we
had construed it in Matter of Au. Indeed, under familiar canons of construction, the use of the identical language in the
amended regulation, after the gloss we had put on that language
in Matter of Au, leads us to believe that the Commissioner intended the same result under the amended regulation. The
amended regulations carry into effect a suggestion previously
made to the Commissioner by the Association of Immigration and
Nationality Lawyers, urging that special inquiry officers be
granted additional powers in this and other regards. , In the absence of any other evidence on the subject, we are justified in concluding that the regulations were amended for the purpose of
granting such additional powers to special inquiry officers, rather
than for the purpose of immunizing District Directors' detention
'determinations from further administrative review under these
circumstances.'
In construing regulations we must try to comport with and not
frustrate the Congressional intent, Pierno v. INS, 397 F.2d 949
(2 Cir., 1968). We are satisfied that our construction of the language in question is in keeping with the Congressional intent underlying section 242(a) and (c) of the Act, as construed by the
courts. We are not persuaded that our decision on jurisdiction in
Matter of Au was erroneous or that its rationale is not equally
applicable here.
We hold that the special inquiry officer had jurisdiction and
should have entertained the respondent's renewed request for release on bail.
2. The exercise of discretion
The special inquiry officer's alternate basis for decision is that,
2 That suggestion, among others, was embodied in a letter to the Commis-
sioner dated March 1, 1967 and published in the Association's Immigration
Bar Bulletin, Vol. XX, No. 1, January—June, 1967, at pages 5-6.
3 No one has suggested that the Commissioner's regulation, if construed as
impinging on our appellate jurisdiction, collides with the Attorney General's
regulation defining our appellate jurisdiction. In view of our construction of
the regulation, that question is not relevant.
461
Interim Decision t2021
assuming he has jurisdiction, relief should be denied in the exercise of discretion. Since the respondent is already in court and
since the court has undoubted power to release, goes the argument, in deference to the court the question of release should be
left to the court, which is in the best position to determine
whether the litigation can be promptly disposed of. This approach
seems to have surface plausibility and appears to be a reasonable
one. Our task would be lighter if we could agree with it; but we
cannot.
In recent months, counsel for the respondent has filed similar
motions to reopen and on the same grounds in scores of other
oases. The Service's trial attorneys have promptly filed oppositions, the special inquiry officers have promptly denied the mo-
;ions, appeals to this Board have been expedited and promptly
lismissed. At the oral argument before this Board, counsel for
he respondent stated that petitions for review under section
06(a) of the Act are now pending in such cases in the Courts of
appeals for the Second and Third Circuits.
The one factor that distinguishes respondent's case from the
thers is that respondent is in custody. His continued detention is
of sought because he is a security threat or a poor bail risk. Ineed, no satisfactory answer has been supplied to us as to why it
so important that he be continued in detention pending termiation of the court action. The Service apparently considers his
tnstitutional argument frivolous and his litigation purely (Mary. It is understandably anxious to have the litigation termitted adversely to the respondent as soon as possible, so that it
n deport him. It has urged his attorney to agree to accelerated
urt procedures, without success. Under the circumstances, since
other plausible reason suggests itself, we can only infer that
continued detention is sought as added leverage, to exact an
reement to accelerated procedures which would otherwise not
forthcoming. In Matter of Au, supra, we concluded that detenn for such a purpose is impermissible. We adhere to that view.
although our responsibilities, like the special inquiry officers',
essentially quasi-judicial in nature, this Board shares with
Service the desire for effective administration of the immition laws. We are aware that in many instances frivolous apIs are taken purely for dilatory purposes. As we stated in
tter of Laqui, Interim Decision No. 1964 (BIA 1969), "Delay
an end in itself, whether achieved by obstructionism or dilatactics, cannot in our view be considered a legitimate ob-
." We attempt to discourage appeals which are clearly frivo-
462
Interim Decision #2021
lous and purely dilatory by disposing of them expeditiously. See
Matter of Holguin, Interim Decision No. 2013 (A-19052331 and
A-19052332, November 19, 1969) ,
The heavily overburdened courts are also confronted with similar attempts at frivolous and dilatory litigation. Summary procedures have been devised to cope with the problem. See, e.g.,
Murphy v. Houma Well Service, 409 F.2d 804 (5 Cir., 1969).
With increasing vigor, the courts have recently commented on the
fact that in immigration cases frivolous appeals have been taken
solely for purposes of delay, e.g., Wong Ram Cheung v. INS,
408
F.2d 35 (2 Cir. 1969) ; Chung Chan, Wa v. INS,
407 F. 2d 854 (1
Cir. 1969) ; Ngai Chi Lam v. Eesperdy,
311 F.2d 310 (2 Cir.
1969), In this climate of judicial opinion, it should not be too difficult for a United States Attorney to obtain expeditious consideration and prompt disposition of frivolous court litigation even in
the absence of cooperation on the part of the alien's attorney.
It cannot be assumed, however, that all controversial litigation
which results in delay is by that token frivolous. In our order of
October 29, 1969 we characterized respondent's quest for reopening as "so clearly without merit than any further administrative
stay is completely unwarranted." It does not follow from this
that release from detention is also unwarranted. As we pointed
out in Matter of Au, supra, a stay of deportation is distinct from
detention and the two are governed by entirely different considerations.
Respondent's motion to reopen, tendering a constitutional issue
which neither we nor the special inquiry officer may adjudicate,
had to be denied. It does not follow from this that the constitutional issue itself is frivolous. That issue is properly for the
courts to determine, not for us. Whatever might be our private
views, the issue was neither briefed nor argued to us and we do
not know on what basis respondent charges that the crewman exclusion is beyond the power of Congress. While we agree that
prompt judicial resolution of the question is desirable, we do not
think that detention of respondent is a proper means of achieving
that end.
As for the argument and that respondent's pending litigation
will not decide that issue, this is purely conjectural. In view of
the tenor of our order of October 29, 1969, it may be that the respondent will urge and the court will conclude that our order confronted and effectively disposed of the motion to reopen. In any
event, the special inquiry officer's calculated refusal to rule on the
463
Interim Decision #2021
motion has not contributed to a speedier disposition of the litigation.
We do not believe that deference to the Court of Appeals requires or even renders it appropriate that the question of respondent's release from detention should be referred to it for
resolution. Quite the contrary, considering the intolerable burdens
now confronting the courts, we think it inappropriate for a special inquiry officer or this Board on appeal to thrust upon the
courts an issue which we have jurisdiction to adjudicate. The
considerations involved in resolving a question of detention are
entirely different from those involved in resolving the merits of
the other issues. Constitutional or otherwise, now before the
court. If we have jurisdiction to determine that issue, then we
have the corresponding responsibility to deal with it. That responsibility may not be abdicated by passing it on to the court.
This is so a fortiori when we take into account the reasons underlying the recent amendment of 8 CFR 242.2 (b). One of the
criticisms of the former system was the delay attendant upon
transmittal of records on appeal to this Board.' It was felt that
needless detention could be avoided by having the District Director's determination reviewable in the first instance by a special
inquiry officer, who was readily at hand in the Service field office.
This is precisely what the amended regulation accomplished, and
a statement was added showing where the special inquiry officers
are stationed, 8 CFR 100.4(e), 34 Fed. Reg. '7327 (May 6, 1969).
In our system of ordered liberty, the freedom of the individual
is considered precious. No deportable alien should be deprived of
pis liberty pending execution of the deportation order unless
;here are compelling reasons and every effort should be made to
ceep the period of any necessary detention at a minimum. Even
f the court has power to order release of an alien whose litigaion is before it, we should not wait for or require the court to
,ct if in our judgment no present justification for continued
letention is shown.
That is the situation here. There has been no suggestion that
he respondent poses a security threat and his past performance
ndicates that he is a good bail risk; certainly, the contrary has
of been suggested. On these facts, we believe the special inquiry
fficer should have ordered his release. To avoid further delay,
ather than remand to the special inquiry officer we shall ourelves direct respondent's release.
4 See the letter of the Association of Immigration and Nationality Lawars referred to in footnote 2, above.
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Interim Decision #2021
ORDER: It is ordered that the appeal be sustained and that the
respondent be released on delivery bond in the sum of $1500.00,
subject to such reasonable conditions as the District Director may
fix.
Service Motion for Reconsideration
(January 8, 1970)
The Immigration and Naturalization Service hereby moves for
reconsideration of the Board's decision of November 21, 1969.
The case before the Board concerns an alien who had surrendered
for deportation, and who thereafter applied for release on bail
upon filing a petition for review in the United States Court of
Appeals for the Second Circuit. When the district director denied
this application he sought to renew it before a special inquiry
officer. The special inquiry officer likewise denied the application,
finding himself powerless to consider it and stating that if he had
such power he would have denied the application in the exercise
of discretion, because he believed the application for release
should have been addressed to the court in which the ease was
pending. Upon appeal the Board reversed, holding that the special inquiry officer and the Board have authority to review such
custody determinations, and ordering that the alien be released
on $1500 bond during the pendency of the court proceedings.
Although disposed to question that determination, we recognized
that further consideration might be prolonged and therefore
agreed to release the alien on bond. However, we noted, and the
Board agreed, that in authorizing such release we were reserving
our right to seek reconsideration of the Board's decision.
Under the statute, the special inquiry officer performs "such
duties . . . as the Attorney General shall prescribe". Section
101 (b) (4), Immigration and Nationality Act, 8 U.S.C.
1101(b) (4). The Attorney General has delegated to the Commissioner, except in regard to the authority conferred on the Board,
all his authority "to direct the administration of the Service and
to enforce the act". 8 CFR 2.1. Under this delegation it is clear
that the special inquiry officer's authority is defined by the Commissioner and that his designation of that authority, as expressed
in the regulations he promulgates, is controlling.
The Board is mistaken in finding that the 1969 amendments of
the regulations were designed by the Commissioner to give the
special inquiry officer authority to review all custody determinations of the district director. On the contrary, the sole purpose of
the 1969 amendment of the regulations was to permit expedited
465
Interim Decision #2021
custody determinations by adjudicative officers, while the matter
was in the process of administration adjudication. This is shown
by the March 1, 1967 request of the Association of Immigration
and Nationality Lawyers, referred to in the Board's opinion. The
Association felt that the procedure then in effect, described by
them as "antiquated", was too slow since the hearing often was
concluded before the custody appeal was resolved. The Association's letter stated:
It may be noted also that giving the Special Inquiry Officer power to fix
bond would also serve, in part, to relieve the situation created by the antiquated system of appeal from bond determinations by the District Director.
By the time a bond appeal is taken, the record made up and transmitted to
the Board of Immigration Appeals, argument had on the appeal and decisions rendered by the Board, three or four weeks have elapsed, the hearing
had been held and much of the purpose for the release has been lost.
The limited purpose of the amended regulation, 8 CFR
242.2 (b), is depicted in the following language, which was added
it the time of the 1969 amendment:
7.onsideration under this paragraph by the special inquiry officer of an ap-
)lication or request of an alien regarding custody or bond shall be separate
tad apart from any deportation hearing or proceeding under this Part, and
hall form no part of such hearing or proceeding or of the record thereof.
In any event, the Board has misread the purpose and scope of
he 1969 amendments to the Service regulations in holding that
hey conferred authority on a special inquiry officer to review
ustody determinations after the alien has surrendered for deporation. On the contrary, as I have indicated, those regulations
'ere designed to give a special inquiry officer authority to review
astody determinations only while the administrative process was
ending, whether in its initial stages or during consideration by a
)ecial inquiry officer or the Board. They definitely were not
tended by the Commissioner to confer on a special inquiry
fiver authority to review custody determinations after the alien
id surrendered for deportation and while judicial review was
nding.
The acceptance of this conclusion would normally require disissal of the appeal, which challenges the special inquiry officer's
,nclusion that he had no jurisdiction and asks that his decision
reversed. However, this would leave unresolved the authority
the Board to entertain appeals from determinations of the disict directors under like circumstances. In Matter of Au, Interim
?.cision No. 1939 (1968), the Board found that it could review
e district director's custody determinations (under the regulains then in effect) where the alien had brought proceedings for
iicial review, with a resultant stay of deportation, since depon
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Interim Decision #2021
tation was no longer imminent. In the instant case, the Board
reaffirmed that conclusion of Matter of Au. Since this is a recurring issue, of considerable importance in the administration of
the immigration laws, we agree that the Board can treat this as
an appeal from the custody determination of the district director,
in order to reconsider its decisions in Matter of Au and in the
instant case.
We had reservations about Matter of Au, when it was decided.
However, at that time we did not seek reconsideration in the
belief that the decision would result in no serious administrative
difficulties. We had in mind the Board's earlier decision in Matter
of Guerra, Interim Decision No. 1914 (1968), and the indication
in Matter of Au that the Board would not be disposed to reverse
the district director's custody determinations when early conclu
sion of the deportation proceedings could be anticipated and
deportation was reasonably imminent. The special inquiry
officer's observations in the instant case have led us to reexamine
the principle of Matter of Au, as endorsed in the instant case.
The Board has frequently recognized that it is a body of lim
ited jurisdiction, whose authority depends entirely upon the
Attorney General's regulations. Thus, the Board does not sit to
review actions of other administrative officers, except to the
extent that the Attorney General's regulations confer such power.
See 1 Gordon and Rosenfeld, Immigration Law and Procedure
(Rev. Ed.) §1.10c, and cases there cited. I know the Board will
agree that it would be empowered to review the custody determinations challenged here only if appellate jurisdiction is sanctioned
by the regulations.
Thus the issue we confront solely concerns the proper interpretation of the regulations. The basic regulation is 8 CFR 3.1 (b),
which provides:
Appeals shall lie to the Board of Immigration Appeals from the following:
…
(7) Determinations relating to bond, parole, or detention of an alien as provided in Part 242 of this chapter.
The relevant portion of Part 242 is A CFR 242.2(b), which
since 1954 has given to the Board authority to review custody
determinations, originally of district directors and more recently
of special inquiry officers. However as the Board notes, since its
inception in 1954 this regulation has contained a reservation,
which now reads as follows:
The foregoing provisions regarding the renewal of an application or request
for a determination by a special inquiry officer, and appeal therefrom to the
Board of Immigration Appeals shall not apply when the Service notifies the
467
Interim Decision #2021
alien that it is ready to execute the order of deportation and takes him into
custody for that purpose.
If, as we urge, the special inquiry officers are not authorized to
review the custody determinations in question, the first portion of
this quoted language could be read as excluding any appeals.
However, this language was added by the 1969 amendments
which granted limited powers to the special inquiry officers.
Before its amendment in 1969, the pertinent sentence of 8 CFR
242.2 (b) read as follows:
The foregoing provisions 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.
The language in question had been in the regulations, without
substantial change until the 1969 amendments, since the Attorney
General in 1954 gave the Board appellate jurisdiction to review
zustody determinations. We agree that only the Attorney General
an alter the Board's appellate jurisdiction (see 28 CFR 0.105,
).115, 8 CFR 2.1), and that the 1969 amendments of the Service
-egulations were not intended to affect any existing authority
if the Board. Admittedly, the 1969 amendments have clouded
his aspect of the procedural pattern, in declaring that no appeal
hall lie from a district director's decision. On the other hand,
he regulations of the Department of Justice still provide, 28
;FR 0.115(e), that the Board has appellate jurisdiction to
etermine appeals from decisions of regional commissioners or
istrict directors on custody issues. Some adjustment of the reguitions obviously is required. However, in the meantime we con-
?de that in cases where the special inquiry officers have no jurisiction the Board retains jurisdiction to review the district
[rector's custody determinations, to the extent that it previously
Id jurisdiction in such cases.
A restrictive interpretation appears, on its face, to he consistit with the language of the regulation, which declares that the
-ovisions for appeal to the Board "shall not apply when the
arvice notifies the alien that it is ready to execute the order of
!pot-talon and takes him into custody for that purpose." That is
,erally what happene.d here and in Matter of Au, for in each
stance the Service notified the alien that it was ready to proed with deportation, and took him into custody for that purIse. Therefore, under a literal reading of the regulation it can
asonably be contended that the Board has no authority to hear
appeal from a determination refusing release from such cusly under such circumstances.
However, since the issue concerns the Board's jurisdiction
468
Interim Decision #2021
under the Attorney General's regulation, I have deemed it appropriate to study the history of the regulation at the time of its
adoption in 1954. The regulation in question developed out of the
judicial proceedings of one Anthony Pino (Service file
A-2136979) challenging an order for his deportation. Pino had
been denied release on bail by the Service and by the lower courts
during the pendency of the judicial proceedings. When his case
reached the Supreme Court, Pino again sought release on bail.
The Supreme Court asked the Solicitor General, Simon E. Sobeloff, to advise it regarding the Attorney General's exercise of his
power to admit to bail. The Attorney General directed the Solicitor General and this Service to conduct a review of the existing
procedures, and designated his Executive Assistant, Charles M.
Metzner, to participate in such review.
The Service at that time urged that it had no authority to
grant release on bail while a case was pending in court. The Solicitor General rejected this view, stating that there was coordinate authority in the courts and the Service to grant such release,
and that it was desirable for the Service to exercise such authority, whenever release was appropriate. The Solicitor General then
suggested the desirability of establishing an administrative review
procedure in custody cases. He designated his chief assistants,
Oscar II..Davis and Philip Elman, to work with me on a draft
embodying the revised procedures. The draft was submitted to
the Attorney General, Herbert Brownell, Jr., and approved by
him. Participating in the discussions, on behalf of the Service,
were Commissioner-designate Joseph M. Swing, General Counsel
L. Paul Winings, and myself.
The Solicitor General then addressed to the Supreme Court a
letter dated May 19, 1954, copy of which is attached, informing it
of the new procedures that were being adopted, and advising it
that Pino had been released on bond. Regulations to codify the
conclusions announced to the Supreme Court were thereafter promulgated.
In the light of the foregoing background it is clear that the
1954 regulations were adopted primarily to recognize the authority of the Service to grant release on bond while court proceedings were pending. In the light of the foregoing background the
service cannot support the special inquiry officer's view that the
pendency of judicial proceedings ousts it of jurisdiction to consider release on bail.
This does not necessarily dispose of the problems presented by
the literal reading of the last sentence of 8 CFR 242.2 (b), speci-
469
Interim Decision #2021
fying that appeals to the Board do not lie when the alien is taken
into custody for the purpose of deportation. Again I believe our
interpretation is controlled by the underlying purpose, as shown
by the discussions and expressions in 1954. The new appellate
procedure in custody cases was adopted at that time in the light
of a pending litigation, and was obviously intended to apply in
other situations where litigation was protracted. We believe,
therefore, that the Board has arrived at a correct assessment of
its authority under the present regulations. When the alien is in
custody for deportation and the Service is proceeding to execute
the deportation order, the regulation precludes appeals to the
Board from the district director's custody determinations, as the
Board held in Matter of Guerra., Interim Decision No. 1914
(1968). However, when deportation is thereafter stayed by judicial review proceedings, and deportation therefore is not imminent, Matter of Au, Interim Decision No. 1939, correctly holds
that the Board has authority to review the district director's custody determinations.
As the Board has suggested in Matter of Au and in the instant
case, this does not mean that release will be granted in every
such case. There is still room for the exercise of discretion by the
district director. I believe that in many instances it may be desirable to refuse release on bail, particularly where the litigation is
patently frivolous and its early disposition by the court can be
anticipated. In such cases, it seems preferable that any release
applications be addressed to the court, which can then view the
entire controversy before it and make an appropriate disposition.
There is no doubt that the court, having control of the litigation, can entertain an application for release on bail while a petition for review or a habeas corpus proceeding is pending before
it. In fact, the courts have entertained such applications on a
number of recent occasions. Thus in the well known De Lucia
case the United States Court of Appeals for the Seventh Circuit
granted an application for release on bail while a petition for
review and an appeal from denial of habeas corpus were pending
before it. On the other hand, in the Santo Librici case, the United
States Court of Appeals for the Second Circuit denied release on
bail in July, 1968 and, in August, 1968 Justice Harlan of the
United States Supreme Court likewise refused bail. The petition
for review was denied October 10, 1968 and the petitioner was
thereafter deported. In the case of Lee Puo Fen, the Second Cir-
!.uit on July 1, 1969 denied release on bail while the case was
.
)ending before it. The court's consideration of the matter was
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Interim Decision #2021
more protracted than originally anticipated, and its decision has
not yet been announced. In the light of this delay, and at the suggestion of Judge Moore, the Service itself has directed the alien's
release on bail.
The Service shares the Board's belief that bail should not be
denied for punitive reasons. We anticipate that in most instances
release on bail will be authorized administratively during the pendency of judicial proceedings. However, we submit that when the
litigation is patently frivolous administrative release on bail
should be denied in the exercise of discretion. In such cases, the
alien would not be without remedy, since he could apply to the
court. Possibly the court will grant release, as it did in De Lucia.
In other situations, as in Librici and Lee Pao Fen, the court will
refuse release because it deems the issues insubstantial and anticipates little delay in completing the case. In still other situations
the court may expedite its consideration.
The substantive issue presented in the court proceedings here
concerns the constitutionality of Section 203 (a) (7) of the Act, 8
U.S.C. 1153 (a) (7). While I deem this an insubstantial issue, settled in previous litigation, the petition for review is not amenable
to a motion to dismiss as frivolous, and no such motion to dismiss
is contemplated. Since the litigation will not be disposed of for
some time the alien should have been released on bail and the
Board's order directing such release was proper.
The views expressed herein relate to the interpretation of the
regulations in their present form. Some modification of those regulations may be in order and we expect to consider the desirability of such modifications in the near future. However, this is an
extraneous consideration in the present posture of this case.
The Service therefore urges that the Board modify its order of
November 21, 1969, insofar as it finds the special inquiry officer
authorized to review the district director's custody determination
in the instant case. As indicated above, we believe the Board can
regard this as an appeal from the district director's detemination and that it can entertain such an appeal. The Service does
not object to the Board's exercise of discretion in authorizing the
alien's release on bond in the instant case.
APPENDIX
May 19, 1954
Hon. Harold B. Willey
Clerk,
Supreme Court of the United States,
Washington, D.C.
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Interim Decision #2021
Dear Mr. Willey:
There is pending before the Court an application for bail, referred to it
by Mr. Justice Frankfurter, in the case of Anthony Pino v. Nicoll& I advised you by telephone on Friday last, May 14, that the Attorney General is
giving fresh consideration to this case in connection with a general review
of existing administrative procedures relating to detention or release of
aliens under final orders of deportation. I requested the Court, through you,
to defer action on the pending Pino application until this week, in order to en :
ablethAornyG cmplethisrvwofbpaticulrse
and the general procedures applicable to cases of this category, and you informed me Monday morning, May 17, that the Court had granted this
request.
On May 13, 1954, I received a letter of that date from Mr. Charles Hallam, Associate Librarian, stating that the Court desires to be advised of
'the procedure followed in the exercise by the Attorney General of his
power to admit to bail an alien under warrant for deportation.
Since the two matters are related, I think it appropriate that the position
)f the Department of Justice with respect to both be stated in this letter.
1. The preecnt practice 'relating to detention or release of aliens under
Nat orders of deportation. Under Section 242(c) of the Immigration and
■Tationality Act of 1952, the Attorney General is given discretion to deternine whether, and on what conditions, an alien may be released on bond. 8
1FR 242.3 (b) delegates that authority to the District Director, Deputy Disrict Director, District Enforcement Officer, or officer in charge having addnistrative jurisdiction over the place where the alien is detained. In addion, 8 CFR 9.6 and 9.4 reserve to the Commissioner and to the Assistant
ommissioner (Division of Detention, Deportation and Border Patrol) coornate authority in such cases.
Upon the entry of a final deportation order, the field officer in charge of
Le district determines whether the alien shall he detained, or admitted to or
ntinued in bail, while efforts are being made to execute the deportation
der. Such determinations ordinarily are made at the local level without
nsultation with the central office of the Immigration and Naturalization
rvice. There is no provision for formal appeal or general practice of inter-
] review. However, attorneys and other interested parties often request rem, in the central office when bail has been denied, and upon such request
field office determination is reviewed. The authority to grant or deny bail
exercised in accordance with criteria set forth in existing internal operans instructions issued by the Service.
!. Changes to be made in procedures governing bail applications in deporion eases. After review of the existing practices, and upon the joint recmendation of the Solicitor General and the new Commissioner of the
migration and Naturalization Service, the Attorney General has directed
t the following changes' be made in the Departmental procedures and pols governing bail applications in deportation cases:
a) In order to provide a quasi - judicial review by a body within the Detment of Justice which is independent of enforcement activities, the presregulations will be amended to authorize an appeal by the alien to the
rd of Immigration Appeals in every case in which action is taken by the
migration and Naturalization Service with respect to bail, parole, or deion. To forestall dilatory appeals, the appeal will be required to be taken
lin a limited time and the Board will be directed to give priority to such
472
Interim Decision #2021
appeals. The mere filing of an appeal will not operate to disturb the custody
of the alien or to stay the administrative proceedings.
(b) In order to enable the central office of the Immigration and Naturalization Service to review cases, at its option, and to avoid unnecessary appeals, the regulations will be amended to provide for notification by the field
office to the central office of the Service of all actions denying administrative
bail.
(c) In order to clarify the Government's position with respect to the
allowance of administrative or judicial bail during the pendency of judicial
proceedings, by habeas corpus or otherwise, challenging the validity of a
final deportation order, instructions will be issued to the Immigration and
Naturalization Service, to the various divisions of the Department of Justice, and to the United States Attorneys, that (1) notwithstanding the pendency of the judicial proceedings, the Department shall consider on its merits any application for administrative bail, and (2) that representatives of
the Department shall not oppose the authority of the court to grant judicial
bail during the pendency of the judicial proceedings.
3. The Pino case. Upon further consideration of the application for administrative bail previously made by Anthony Pino pending review by habeas corpus of the validity of the final order of deportation entered against
him, the Department of Justice has concluded that such application should
be granted and the Immigration and Naturalization Service has taken the
necessary actions to effect his release on bond. I am advised that he is no
longer in custody. Accordingly, Pine's application for judicial bail now before the Court has become moot.
Sincerely yours,
Simon E. Sobeloff,
Solicitor General.
cc: Charles Hallam, Esq.,
Associate Librarian,
Supreme Court of the United States,
Washington, D.C.
BEFORE THE BOARD
(February 13, 1970)
This is an unopposed Service motion by its General Counsel for
reconsideration and modification of our opinion entered in this
case on November 21, 1969. That opinion culminates in an order
directing respondent's release on bond. On this motion, the Service does not challenge our jurisdiction to direct such release and
concedes that our order directing release was proper. What the
Service now asks is that we retrace and modify the route by
which we concluded we acquired jurisdiction to enter that order.
The facts are fully stated in our opinion of November 21, 1969
and need not be repeated at length. The respondent, a concededly
deportable alien crewman in Service custody for deportation, filed
a judicial review action raising a constitutional issue which neither the Service nor this Board has power to adjudicate. The Dis-
473
Interim Decision #2021
trict Director felt that deportation was automatically stayed
during the pendency of the litigation but denied respondent's
application for release on bail. Un renewal of the application for
release before a special inquiry officer pursuant to 8 CFR
242.2(b), as amended, the latter held that he lacked power under
that regulation to grant the relief requested; and that, even if
such power existed, bail should be denied as a matter of discretion. In our opinion of November 21, 1969, relying on the rationale of Matter of Au, Interim Decision No. 1939 (BIA 1968), we
decided that the special inquiry officer was in error in both
regards and we sustained the appeal.
In Matter of Au, supra, we construed 8 CFR 212.2(h) at a
:ime when it specifically authorized a direct appeal to this Board
from the District Director's adverse determination. That regula-
;ion was thereafter amended, 34 Fed. Reg. 7327 (May 6, 1969),
ind the provision for appeal to this Board from the District
)irector's detention determination was in terms eliminated: "No
tppeal shall lie from such determination." However, provision
vas made for renewal of the release application before a special
nquiry officer and his decision was made appealable to this
ioard. The amended regulation thus provided what is in effect an
dditional and intermediate review of the District Director's bail
etermination, with ultimate administrative decision in this
toard on appeal. We therefore saw no reason to raise the queson whether the language just quoted from the Commissioner's
.igulation improperly impinged on the appellate jurisdiction deleated to this Board by the Attorney General. See footnote 3 of
it November 21, 1969 opinion.
In the motion now before us, the Service agrees that only the
ttorney General may alter this Board's appellate jurisdiction
id that the 1969 amendments of the Service regulations were
t intended to affect any existing authority of the Board. The
tneral Counsel, after extensive research into the origins of the
gulations in question, concedes that it confirms our jurisdicalai holding in Matter of Au, supra.. He insists, however, that
a 1969 amendments were intended to confer only limited
thority on the special inquiry officers; and that the restrictive
iguage in question curtails the power of special inquiry
"The foregoing provisions regarding the renewal of an application or re-
.st for a determination by a special inquiry officer and appeal therefrom
;he Board of Immigration Appeals, shall not apply when the Service notithe alien that it is ready to execute the order of deportation and takes
into custody for that purpose."
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Interim Decision #2021
officers, though not of this Board, once the alien is taken into custody for deportation. Thereafter, goes the argument, the alien's
only recourse from a District Director's detention determination
is a direct appeal to this Board; and we are asked to regard this
case as a direct appeal from the decision of the District Director
rather than from that of the special inquiry officer.
From the materials cited to us, we are now satisfied that the
Commissioner did intend, by the language of the amended regulation, to foreclose intermediate review of a District Director's
detention determination by a special inquiry officer once the alien
is notified to surrender for deportation and is taken into custody
for that purpose. The language employed is susceptible of the
construction contended for, and the Commissioner has undoubted
power to promulgate such regulations prescribing the duties of
special inquiry officers.= We therefore have no alternative but to
recede from our prior holding that the special inquiry officer had
jurisdiction to rule on the bail application in the circumstances of
this case.
The Service motion suggests that we regard this case as a
direct appeal from the District Director's determination. If, as we
now hold, the amended regulation precludes special inquiry
officers from exercising jurisdiction under these circumstances, a
literal reading of the provision barring appeal from the District
Director's decision would have the effect of diverting the Board
of the appellate jurisdiction, conferred by the Attorney General,
which it had previously exercised. Such ouster was concededly not
intended by the Commissioner; indeed, it would have been beyond
his power. We are therefore justified in reading the regulation as
precluding appeal to this Board only in those instances where
there is still available the right to apply for release to a special
inquiry officer and to appeal to this Board from his decision. Substantial justice requires that we regard this case as having come
here on direct appeal from the District Director's decision.
While the needs of this case can thus be met, we agree with the
General Counsel that the regulations should be revised to reflect
clearly to all concerned the remedies available and the pertinent
procedures. Publication of this opinion, our prior opinion, and the
Service motion should help to apprise the public of the gloss we
have placed on the regulations in question; but this cannot satisfactorily substitute for a lucid restatement of the provisions
under review.
2 See Immigration and Nationality Act, sections 101(b) (4), 103(a) (b), and
242(b) ; 8 C.F.R. 2.1.
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Interim Decision #2021
We may safely assume that, in those instances where a District
Director denies an application under circumstances which preclude renewal before a special inquiry officer, the Service will
appropriately notify the alien of his right, if any, of direct appeal
to this Board and of the pertinent procedures.
ORDER: It is ordered that our opinion and order dated
November 21, 1969 be amended to accord with the views herein
expressed and, as so amended, be affirmed.
476
