KWUN

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 cus-

tody for that purpose, the special inquiry officer lacks jurisdiction pur-

suant 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 de-

portation, appeals from an order of a special inquiry officer refus-

ing to disturb the District Director's decision to continue re-

spondent 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

457

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 di-

rected to surrender on October 27, 1969 for deportation two days

later. He surrendered as requested and has been in Service cus-

tody 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 Immigra-

tion and Nationality Act. In his motion papers, counsel chal-

lenged 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 op-

nosed 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 mo-

tion. 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 confirma-

rry 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 de-

ed 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 chal-

iges 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 determina-

n 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-

458

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 oppo-

sition and the 10-day period provided by 8 CFR 103.5 has long

expired, the special inquiry officer has thus far deliberately re-

frained from formally adjudicating respondent's motion to re-

open, for reasons which he explains in the order now before us on

appeal. That order, dated November 4, 1969, denied counsel's ap-

plication for a redetermination, pursuant to 8 CFR 242.2(b), as

amended,' of the District Director's decision to continue respond-

ent 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 deporta-

tion 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 administra-

tive review of the District Director's detention determination in a

situation where the deportation order could not be promptly exe-

cuted 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 be-

fore final conclusion, we cannot believe that the regulation in-

tended to make the District Director's detention determination

administratively conclusive." The special inquiry officer in the in-

stant case rejected the rationale of Matter of Au, stating (opin-

ion, 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 disposi-

tion 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).

459

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 impor-

tant one, we will reconsider it.

As we pointed out in Matter of Au, the Service's power to de-

tain 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 appel-

late 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 ap-

pellate 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 ju-

isdiction 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 lib-

ation, which the Service considered purely dilatory. We con-

uded 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 elimi-

ated. 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 ap-

peal to this Board inapplicable when the Service is ready to exe-

cute 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 de-

signed to change in any way the jurisdictional situation as we

had construed it in Matter of Au. Indeed, under familiar can-

ons 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 in-

tended 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 ab-

sence of any other evidence on the subject, we are justified in con-

cluding 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 lan-

guage in question is in keeping with the Congressional intent un-

derlying 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 re-

lease 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 exer-

cise of discretion. Since the respondent is already in court and

since the court has undoubted power to release, goes the argu-

ment, 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 opposi-

tions, 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. In-

eed, no satisfactory answer has been supplied to us as to why it

so important that he be continued in detention pending termi-

ation of the court action. The Service apparently considers his

tnstitutional argument frivolous and his litigation purely (Ma-

ry. It is understandably anxious to have the litigation termi-

tted 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 deten-

n 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 immi-

tion laws. We are aware that in many instances frivolous ap-

Is 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 dila-

tactics, 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 simi-

lar attempts at frivolous and dilatory litigation. Summary proce-

dures 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 dif-

ficult for a United States Attorney to obtain expeditious consider-

ation 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 reopen-

ing 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 consider-

ations.

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 constitu-

tional 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 ex-

clusion 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 re-

spondent will urge and the court will conclude that our order con-

fronted 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 litiga-

tion.

We do not believe that deference to the Court of Appeals re-

quires or even renders it appropriate that the question of re-

spondent'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 spe-

cial 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 re-

sponsibility may not be abdicated by passing it on to the court.

This is so a fortiori when we take into account the reasons un-

derlying 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 Direc-

tor'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 litiga-

ion 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 our-

elves direct respondent's release.

4 See the letter of the Association of Immigration and Nationality Law-

ars referred to in footnote 2, above.

464

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 spe-

cial 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 Commis-

sioner, 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 Com-

missioner 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 determina-

tions 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 Associa-

tion'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 anti-

quated 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 deci-

sions 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 depor-

ation. 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 dis-

issal 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 dis-

ict 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 regula-

ins then in effect) where the alien had brought proceedings for

iicial review, with a resultant stay of deportation, since depon

466

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 recur-

ring 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 determi-

nations challenged here only if appellate jurisdiction is sanctioned

by the regulations.

Thus the issue we confront solely concerns the proper interpre-

tation 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 pro-

vided 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 regu-

itions obviously is required. However, in the meantime we con-

?de that in cases where the special inquiry officers have no juris-

iction 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 consist-

it 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 pro-

ed with deportation, and took him into custody for that pur-

Ise. 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 cus-

ly 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 appro-

priate 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. Sobel-

off, to advise it regarding the Attorney General's exercise of his

power to admit to bail. The Attorney General directed the Solici-

tor 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 So-

licitor General rejected this view, stating that there was coordi-

nate authority in the courts and the Service to grant such release,

and that it was desirable for the Service to exercise such author-

ity, 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 pro-

mulgated.

In the light of the foregoing background it is clear that the

1954 regulations were adopted primarily to recognize the author-

ity of the Service to grant release on bond while court proceed-

ings 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 con-

sider 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 judi-

cial review proceedings, and deportation therefore is not immi-

nent, Matter of Au, Interim Decision No. 1939, correctly holds

that the Board has authority to review the district director's cus-

tody 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 desir-

able 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 litiga-

tion, can entertain an application for release on bail while a peti-

tion 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

470

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 sug-

gestion 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 pend-

ency 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 antic-

ipates 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, set-

tled 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 reg-

ulations may be in order and we expect to consider the desirabil-

ity 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 detemina-

tion 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.

471

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 ad-

vised 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 in-

formed 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 Hal-

lam, 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 deter-

nine 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 Dis-

rict Director, District Enforcement Officer, or officer in charge having ad-

dnistrative jurisdiction over the place where the alien is detained. In addi-

on, 8 CFR 9.6 and 9.4 reserve to the Commissioner and to the Assistant

ommissioner (Division of Detention, Deportation and Border Patrol) coor-

nate 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 re-

m, 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 opera-

ns instructions issued by the Service.

!. Changes to be made in procedures governing bail applications in depor-

ion eases. After review of the existing practices, and upon the joint rec-

mendation 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 pol-

s governing bail applications in deportation cases:

a) In order to provide a quasi - judicial review by a body within the De-

tment of Justice which is independent of enforcement activities, the pres-

regulations 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 de-

ion. 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 Naturali-

zation Service to review cases, at its option, and to avoid unnecessary ap-

peals, 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 Jus-

tice, and to the United States Attorneys, that (1) notwithstanding the pend-

ency of the judicial proceedings, the Department shall consider on its mer-

its 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 ad-

ministrative bail previously made by Anthony Pino pending review by ha-

beas 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 be-

fore 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 Serv-

ice 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 nei-

ther 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 discre-

tion. In our opinion of November 21, 1969, relying on the ration-

ale 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 ques-

on whether the language just quoted from the Commissioner's

.igulation improperly impinged on the appellate jurisdiction dele-

ated 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 jurisdic-

alai 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 noti-

the alien that it is ready to execute the order of deportation and takes

into custody for that purpose."

474

Interim Decision #2021

officers, though not of this Board, once the alien is taken into cus-

tody 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 regula-

tion, 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. Sub-

stantial 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 satis-

factorily 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.

475

Interim Decision #2021

We may safely assume that, in those instances where a District

Director denies an application under circumstances which pre-

clude 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