Interim Decision #2167
MATTER OF TSOI
In Bond Proceedings
A-15162019
Decided by Board October 4, 1972
The Board of Immigration Appeals lacks jurisdiction under 8 CFR 242.2(b) to
entertain an appeal from the District Director's bond determination where an
alien is being held in Service custody for execution of a final order of
deportation and a stay of his deportation pending determination of a request
for asylum is likely to be of but brief duration. [Matter of Au, 13 I. & N. Dec.
133, and Matter ofKioun,
13 I. & N. Dec. 457, distinguished.)
ON BEHALF OF RESPONDENT: Jules E. Coven, Esquire
One East 42d Street
New York, New York 10017
Respondent, an alien in Service custody for deportation, appeals
from a decision of the District Director denying his application for
release pending determination of his asylum request. The appeal
will be dismissed.
From the meagre record before us, it appears that respondent is
a native and citizen of China who was admitted to the United
States on March 26, 1968 as a nonimmigrant crewman and
remained longer than permitted. In ensuing deportation proceedings, he was enlarged on posting a $1,000 delivery bond. He was
found deportable after a hearing before a special inquiry officer
and granted voluntary departure until September 30, 1968., On his
failure to depart, a warrant for his deportation was issued. He
failed to surrender for deportation as demanded on December 9,
1968 and the bond was breached. His whereabouts was unknown
to the Service until September 21, 1972, when he was taken into
custody under the outstanding warrant of deportation.
Respondent promptly applied for political asylum. The application was referred to the State Department and the District
Director stayed deportation pending determination of the asylum
request. Respondent also applied for release, on bond or otherwise,
pending that determination. The District Director concluded that
exaction of bond as a condition of release was precluded by the
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terms of section 242(c) of the Immigration and Nationality Act,
because more than six months had elapsed since the deportation
order became final. Insofar as concerned respondent's possible
release on his own recognizance, the District Director felt that
respondent's record did not justify reliance on his making himself
again available for deportation once released. Concluding that
respondent's deportation is still imminent, the District Director
denied the release application.
Appeals to this Board from Service detention determinations
are authorized by 8 CFR 3.1(b)(7), "as provided in Part 242 of this
chapter." Under the terms of 8 CFR 242.2(b), after a deportation
order becomes administratively final, an alien may appeal direct to
the Board from a District Director's determination, "except that
no appeal shall be,allowed 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 Guerra, 13 I. & N. Dec. 40
(BIA 1968), we regarded comparable language in a prior version of
the same regulation as depriving us of jurisdiction under such
circumstances.
In Matter of Au,
13 I. & N. Dec. 133 (BIA 1968) and Matter of
Moult,
13 I. & N. Dec. 457 (BIA. 1969, 1970), we concluded that the
exception carved out of the regulation did not apply where the
Service, by reason of a stay of deportation automatically granted
by statute during the pendency of review litigation, was not ready
to execute the final deportation order. In each of those cases, the
alien had filed a petition for review under section 106(a) of the Act,
challenging this Board's adjudication in the deportation proceedings on the merits. Under section 106(a)(3) of the Act, deportation
was automatically ,stayed pending court determination of the
petition. We concluded that because of the long delay attendant
upon judicial litigation of this sort, deportation could not be
considered imminent.
The case before us is clearly distinguishable, No proceedings are
pending for judicial review of the deportation order on the merits
and there is no statutory stay of deportation which is likely to
remain in effect for a protracted period of time. The District
Director's stay, geared to the asylum application, is likely to be of
but brief duration. The District Director's memorandum dated
September 25, 1972 informs us that past experience in cases of this
type indicates that a reply from the Department of State can be
expected within ten ,days. It thus appears that, if asylum is not
granted, it is likely that the District Director will shortly be in a
position to deport the respondent. Under these circumstances, we
conclude, as we did in Matter of duerra,supra, that the regulations
do not contemplate a right of appeal to this Board.
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If, contrary to the District Director's expectation, there should
be a protracted delay before determination of respondent's asylum
application, the rationale of Matter of Au and Matter of Kwun,
supra, would apply. In that event, if the District Director should
still refuse to enlarge respondent, the latter would be in a better
position to invoke our appellate jurisdiction.
Our disposition of the case on this narrow ground makes it
unnecessary for us to consider the question, raised by the District
Director, whether expiration of the six-month period precludes
exaction of a delivery bond as a condition of release. Whether the
six-month period should be considered as tolled where, as here, the
alien has prevented deportation by absconding, is a question we
therefore need not now confront.
ORDER: The appeal is dismissed for lack of jurisdiction.
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