SANCHEZ

                                                           Interim Decision #3139




                         MATTER OF SANCHEZ
        In Bond Proceedings Pursuant to 

(d)

                                    A-19361669

                  Decided by Board September 21, 1990

(1)The immigration judge erred in holding that he had jurisdiction to conduct a hearing
  in bond proceedings for a criminal alien who was still incarcerated in a Maryland
  State penal institution.
(2)The Immigration and Naturalization Service did not have actual physical custody of
  the criminal alien, and therefore there was no authority for the commencement of
  bond proceedings before an immigration judge under the regulations.
(3) The filing of a Service detainer with the Maryland penal authorities does not
  constitute actual physical custody.
(4)Section 242(i) of the Immigration and Nationality Act, 

(i) (1988),
  which indicates that the Attorney General should begin any deportation proceeding as
  expeditiously as possible after the date of the conviction, is not a vehicle for
  incarcerated aliens to demand immediate deportation hearings.

ON BEHALF OF RESPONDENT:                            ON BEHALF OF SERVICE:
 M. Kiel Hackley, Esquire                            Elizabeth S. Dolan
 Noto, Oswald, Hoffmeier, Hackley,                    General Attorney
 Eisman, and Miller
 Washington Harbor
  3050 K Street, N.W., Suite 310
  Washington, D.C. 20007

BY: Khan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   In a decision dated March 1, 1990, an immigration judge ordered
the respondent, who was being held in custody without bond, to be
released on a bond of $5,000. 1 In a subsequent decision dated March 8,
1990, the immigration judge vacated his prior order to set bond at
$5,000 and requested further briefing on the respondent's eligibility
for bond.2 The Immigration and Naturalization Service, however, has

   tThe immigration judge found that the Immigration and Naturalization Service's
refusal to set bond was the equivalent of a custody determination of no bond.
  2 The immigration judge's March 8, 1990, order vacated his original bond order
following the decision of the Board of Immigration Appeals in Matter of Barrett, 

 (BIA 1990), which held that a state conviction could qualify as an aggravated

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appealed from the immigration judge's original determination that he
had jurisdiction to hold a custody hearing. The Service's appeal will be
sustained.
   The record indicates that the respondent is a 25-year-old married
native and citizen of Argentina, who was admitted to the United States
as a lawful permanent resident on December 7, 1978. On September
18, 1989, an Order to Show Cause and Notice of Hearing (Form 1-221)
was issued in which it is alleged that en August 11, 1989, the
respondent was convicted of unlawful distribution of cocaine hydrochloride, and, therefore, that he is deportable under section 241(a)(11)
of the Immigration and Nationality Act, 

(a)(11)
(1988), on the basis of a controlled substance conviction, and under
section 241(a)(4)(3) of the Act, on the basis of an aggravated felony
conviction. The respondent was sentenced to 8 years in prison, but 4
years were suspended. The respondent was also ordered to complete 36
months of probation following his release from incarceration. On
September 12, 1989, while the respondent was in state custody, the
Service placed an immigration detainer on the respondent.
   On November 1, 1989, the respondent filed the Order to Show
Cause with the Office of the Immigration Judge. The respondent also
filed a motion which asked the immigration judge to require the
Service to set bond and to require the Service to lift the detainer
lodged with the prison.
   In his decision of March 1, 1990, the immigration judge concluded
that he had jurisdiction to set bond. The immigration judge initially
found that the immigration court had jurisdiction over the respondent's deportation proceedings because the proceedings had been
commenced through the filing of an Order to Show Cause. The
immigration judge then noted that the immigration court had authority to consider the respondent's custody and bond pursuant to 

 and 242.2(c)(2) and (d) (1990). In support of his findings
concerning custody and bond, the immigration judge stated that the
respondent was in the "technical" custody of the Service, and that the
Service's refusal to set bond was the equivalent of a decision that no
bond was warranted. The immigration judge concluded, however, that
he did not have authority to require the Service to remove the
detainer. In addition, he concluded that he did not have jurisdiction to
compel a state authority to allow a prisoner to participate in a work
release program or other detention facility program.

felony and preclude an alien's release from Service custody on bond. The immigration
judge therefore requested briefs to determine whether the respondent's state conviction
could be considered an aggravated felony. We are unable to review any subsequent bond
determination by the immigration judge because none is included in the record.

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    On appeal, the Service contends that the immigration judge erred in
 holding that he had jurisdiction to conduct a bond hearing for a
 criminal alien who was still incarcerated in a state penal institution. In
support of this position, the Service argues that the immigration judge
 erred in holding that the Service assumes "technical" custody over the
 respondent through issuance of an immigration detainer and an Order
 to Show Cause. The Service also argues that the immigration judge
erred in holding that the Service's refusal to set a bond for the
respondent was the equivalent of a bond determination under 

(c)(2) (1990).
    Jurisdiction vests and proceedings commence before an immigration judge when a charging document is filed with the Office of the
Immigration Judge except for bond proceedings as provided in 

 and 242.2(d). 

(a) (1990). 3 Since the
regulations do not specify who can file a charging document with the
Office of the Immigration Judge, the respondent as well as the Service
can commence deportation proceedings by filing the Order to Show
Cause. The effect of such filing is to vest the Office of the Immigration
Judge with jurisdiction over the case. The regulation at 

(a) (1990), however, does not apply to bond proceedings, which
are expressly excluded from that provision. Jurisdiction in bond
proceedings is controlled by 8 C.F.R. §g 3.18 and 242.2(d) (1990). The
regulation at 

(a) (1990) indicates that the immigration
judge may review custody and bond determinations made by the
Service pursuant to 

 (1990). Therefore, the Service
would be required to make a custody and a bond determination under

(c) (1990) before an immigration judge would have
jurisdiction to conduct a custody hearing.
    To make a proper custody determination under 

(c)
(1990), the Service must first have custody of the respondent. In the
present case, the immigration judge concluded that the Service
"assumed 'technical' custody of the respondent through its issuance of
a detainer and Order to Show Cause." We find this equation of a
Service detainer with Service custody to be misplaced. A detainer is
merely an administrative mechanism to assure that a person subject to
confinement will not be released from custody until the party
requesting the detainer has an opportunity to act. See Moody v.
Daggett, 

 (1976). Although the immigration judge was
correct in noting that a detainer has been deemed to be "technical"
custody, it clearly does not constitute actual physical custody. See
Chung Young Chew v. Boyd, 

 (9th Cir. 1962); Slavik v.
Miller, 

 (W.D. Pa.), afrd, 

 (3d Cir. 1950),

 3 The regulation at 

(a) (1990) incorrectly cites 

(b).

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cert. dented, 

 (1951); Matter of Lehder, 

(BIA 1975).
   In the present case, the respondent was in the actual physical
custody of the State of Maryland. We note that the Service can neither_
compel the Maryland authorities to make the respondent available for
immigration proceedings, nor, as a practical matter, exert its authority
over the respondent as long as he is confined in a state facility. Since
there is no dual or joint custody, we find it inappropriate to consider
the Service's detainer as custody under 

(c) (1990). See
 Young v. United States, 

 (5th Cir. 1964); cf. Gaddy v.
Michael, 

 (4th Cir. 1975); Small v. Britton, 

(10th Cir. 1974). Consequently, inasmuch as the respondent is not yet
in the custody of the Service, we conclude that the provisions of 

(d) (1990) are not yet applicable to this case. See Matter
of Lehder, supra:*
    We note that the immigration judge's decision attempted to
 distinguish Matter of Lehder, supra, from the present case based on
two regulatory changes made subsequent to that decision. First, the
immigration judge relied on the regulation at 

(a) (1990)
which, as previously noted, does not trigger the commencement of
bond proceedings. Second, the immigration judge also relied on
section 242(i) of the Act, 

(i) (1988), which indicates
that the Attorney General should "begin any deportation proceeding
as expeditiously as possible after the date of the conviction." The
statute and its legislative history reveal that it was intended more as a
directive to the Service to address the balance of state versus federal
responsibility for incarcerated aliens subject to deportation, rather
than as a vehicle for incarcerated aliens to demand immediate
deportation hearings. Mohammed v. Sullivan, 

 (8th Cir.
1989); Campillo v. Sullivan, 

 (8th Cir. 1988); Cabezas v.
Scott, 717 F. Sum. 696 (D. Ariz. 1989). This provision, therefore, does
not compel the immigration judge to conduct a hearing.
   Accordingly, the following order will be entered.
   ORDER:          The appeal of the Immigration and Naturalization
Service is sustained and the immigration judge's order is vacated for
lack of jurisdiction.




  4 1n light of our findings, we find it unnecessary to determine whether the immigration
judge erred in holding that the Service's refusal to set a bond for the respondent was the
equivalent of a bond determination.

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