Interim Decision #2599
MATTER OF CHIRINOS
In Bond Proceedings
A-20424783
Decided by Board July 14, 1977
(1) The primary consideration in a bail determination is that the parties be able to place
. the facts before an impartial judge as promptly as possible. There is no requirement for
a formal "hearing." Informal procedures, even telephonic "hearings," are encouraged so
long as prejudice does not result.
(2) There is no right to a transcript of a bond redetermination hearing.
(3) 8 C.F. R. 242.2(b) provides that bond redetermination hearings shall be held separate and
apart from the deportation hearing itself. This was not done in this case. However, the
respondent does not appear to have been prejudiced by this error. Therefore, the appeal
from the immigration judge's order denying a bond redetermination will be dismissed.
CHARGE:
Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant—remained
longer than permitted
APPLICATION: Redetermination of bond
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Frank Murray, Esquire George Indelicato
28 West Flagler, Suite 400 Appellate Trial Attorney
Miami, Florida 33130
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members
The respondent appeals from a decision of an immigration judge,
dated January 24, 1977, denying his request for a bond redetermination.
The appeal will be dismissed.
The respondent is a 24-year-old native and citizen of the Honduras,
who last entered the United States on June 7, 1974, as a nonimmigrant
visitor, authorized to remain until June 30, 1974. He was taken into
custody by Service officers pursuant to an Order to Show Cause, Notice
of Hearing and Warrant for Arrest, issued on January 14, 1977. The
District Director authorized his release from custody under bond in the
amount of $1,000. The bond was posted and he was released on January
17, 1977. At his deportation hearing on January 24, 1977, the respondent's request for cancellation of bond was denied by the immigration
judge.
Interim Decision #2599
The regulations require that the determination of the immigration
judge concerning custody status or bond shall be entered on Form 1-342
and shall be accompanied by a memorandum by the immigration judge
as to the reasons for his determination. 8 C.F.R. 242.2(b). Although
these procedures were followed, the regulations also require that this
consideration "be separate and apart from any deportation hearing or
proceeding, and shall form no part of such hearing or proceeding or of
the record thereof." 8 C.F.R. 242.2(b). Therefore, the procedures followed in this case were inappropriate. The bond issue should have been
handled separately, with a separate order and a separate appeal to this
Board.
Nevertheless, there is no right to a transcript of a bond redetermination hearing. Indeed, there is no requirement of a formal "hearing." Our
primary consideration in a bail determination is that the parties be able
to place the facts as promptly as possible before an impartial arbiter. To
achieve this objective we not only countenance, but will encourage,
informal procedures so long as they do not result in prejudice. Thus, we
even favor telephonic "hearings" before the immigration judge with the
consent of the parties, where feasible. The bail record forwarded to us,
in addition to the memorandum of the immigration judge, may contain
any information which will he helpful to our consideration of the matter.
See U.S. ex rel. Barbour v. District Director,
(C.A. 5,
1974).
Obviously, this informality cannot carry over to a deportation hearing. The requirement of a separate bond procedure and record is part of
the effort to divorce, so far as possible, the bond matter from the
deportation hearing. While it is sometimes helpful to have the results of
the deportation hearing when considering a bond appeal, it is neither
required, nor necessary. Moreover, if transcription of the deportation
proceedings would entail delay in passing upon the bond appeal, it would
be most undesirable to hold up a bond determination until a transcript
could be prepared.
While the bond issue was not handled separately, on review of this
case, the respondent does not appear to have been prejudiced by the
error. The matter is before us now and on consideration of the merits of
the bond appeal, we find that a bond in the amount of $1,000 is appropriate in this case. See Matter of San Martin, Interim Decision 2340 (BIA
1974).
ORDER: The appeal from the immigration judge's order denying a
bond redetermination is dismissed.
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