Petition — Taerghodsi v. Immigration & Naturalization Service

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Supreme Court, U. & ~

FILED

' MAY $1 1978

NO. T7-1 7 1 Borciuc RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

MAJID TAERGHODSI and

NEZAM YOUSEFI,

Petitioners.

Vv.

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES REIF

308 Livingston St.

Brooklyn, NY 11217

212-858-9131

Counsel for

Petitioners

OF COUNSEL:

Collins & Felker

Houston, Texas

INDEX

Opinions Below

Jurisdiction

Questions Presented

Statement of Facts

Reasons for Granting This Writ

1. Where the Government Failed

To Fully Comply With Opera-

ting Instruction 214.2(f)(7)

It is Estopped From Deport-

Ing the Petitioner ‘

2. The Selective and Discrim-

inatory Enforcement of the

Immigration Laws Has Been

Banned by This Court's

Holding in Yick Wo v

Hopkins yi ane

3. The Immigration Judge Re-

Versibly Erred By Denying

Petitioner's Motion to

Suppress

Conclusion

Appendices

A - Opinion of Board of Immi-

gration Appeals - Nezam

Yousefi os

Opinion of Board of Immi -

gration Appeals - —

Taerghodsi. . .

- A-l

- A-9

B - Judgment of Court of

, Oyler v. Boles, 368 U.S.

Appeals - Majid ,

Taerghodsi. .. . aa OG) a a ee ee

sag oe age sa of U.S. ex rel. Parco v. Morris,

a ee es St — 426 F.Supp. (E.D.Pa. 1977). .10,11

C - Order of Court of Appeals ; (ab aaa 461 F.2d 1148 zs

Granting Further Stay ye ww ‘ eee 6 *

» Bo ene ew. eq Yick Wo v. Hopkins; 118 U.S.

Order of Court of Appeals 356 (1886). .......... 12

Granting Further Stay

Of Mandate - Nezam

Sannneé C-3 Miscellaneous:

I.N.S. Operating Instruction

MeGcSGePaees « « ot ew et GS 8 1,83

CITATIONS .

Cases: 7

Accardi v. Shanghnessy, 347 U.S. :

eS era ae a a ee Se ra

Dixon v. District of Columbia, |

394 F.2d 966 (U.S.App.D.C. 1968). .13

Falk v. United States, 479 F.2d

a Cee ne, «ks ae ee! a

Lennon v. United States, 527

i © @- © |. ) eee ee

Navis-Duran v. I.N.S., 569 F.2d

F © 3 ae ees eee

Noel v. Chapman, 508 F.2d 1023

(CA2 1974) cert. den. 423 U.S.

ae Gueeees 6 es 6 * 8- ees ss iii

ee ee

—

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

MAJID TAERGHODSI and

NEZAM YOUSEFI,

Petitioners,

vV.

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, MAJID TAERGHODSI and

NEZAM YOUSEFI, pray that a writ of cer-

tiorari issue to review the judgment of

the United States Court of Appeals for

the Fifth Circuit summarily affirming the

opinion and judgment of the Board of Im-

migration Appeals. The judgment of the

Court of Appeals was rendered on February

28, 1978.

The appeals of Petitioners, reviewed

separately by the Court of Appeals, are

here consolidated for the purposes of

judicial economy in that common questions

of fact and law are presented.

OPINIONS BELOW

The opinion of the Board of Immigra-

tion Appeals, as yet unreported, appears

at Appendix A, infra, pp.A-l. The Court

of Appeals affirmed the judgment of the

Board of Immigration Appeals without

opinion. See Appendix B, infra, pp.B-l.

JURISDICTION

On May 1, 1978, the Court of Appeals

granted Petitioners’ Motion for Further

Stay of Issuance of Mandate to Allow Pe-

titioners the opportunity to file their

application for writ of certiorari with

this Court not later than May 31, 1978.

See Appendix C, infra, pp.C-1. The jur-

isdiction of this Court is invoked pur-

Suant to 28 U.S.C. $1254.

QUESTIONS PRESENTED

Petitioners appealed orders of the

Immigration and Naturalization Service

District Director finding them deport-

able. The questions presented for re-

view are:

1. Whether the Government may be

estopped from deporting an alien student

because the Immigration and Naturaliza-

tion Service has constructively rescind-

ed one of its own "Operating Instruc-

tions" by failing to fully comply with

its mandates.

2. Whether the Government may se-

lectively enforce the immigration laws

of the United States by discriminatorily

deporting those aliens who espouse un-

popular political views.

3. Whether Petitioner TAERGHODSI

was denied due process of law by the

Immigration Judge's denial of his motion

to suppress certain evidence.

STATEMENT OF FACTS

The facts relevant to the questions

presented by this Petition are uncontro-

verted and therefore will be introduced

to the Court in summary fashion.

On May 1, 1976, Petitioners partici-

pated in a lawful assembly protesting

against the Shah of Iran and United

States involvement in Iran. The demon-

stration took place in a public park in

Houston, Texas. Officers of the Houston

Police Department ordered the demonstra-

tors to disperse. Petitioners complied

with this order and proceeded to attempt

to leave the site of the demonstration.

As Petitioners attemptec to leave,

the automobile in which they were pas-

sengers was stopped by Houston Police

officers. Petitioners were asked to

produce their passports and visas, how-

ever, were unable to do so although they

did present valid driver licenses and

university identification cards. Peti-

tioners were then transported to the

city of Houston Jail and detained for

further investigation by the Immigration

and Naturalization Service. Petitioners

were transferred to the custody of the

Immigration and Naturalization Service

the following day.

An agent for the Service interroga-

ted Petitioners concerning nationality

and immigration status. Immigration

Form I-213 was then completed for both

Petitioners by the Service. It was dur-

ing this investigation that the Service

discovered the following facts:

1. That Petitioner YOUSEFI had been

granted an extension of temporary stay

until April 19, 1976, and;

2. That the personal effects of

Petitioner TAERGHODSI, taken from him by

the Houston Police Department and sub-

sequently transferred to the Service,

contained an employee identification

card.

It was then determined by the Ser-

vice investigators that Petitioner

YOUSEFI was out of lawful immigration

status by virtue of the fact that he was

a technical “overstay" and that Peti-

tioner TAERGHODSI had not been author-

ized by the Service to accept employment

while in the United States. Upon advice

of counsel, Petitioners refused to give

a sworn statement to Service investiga-

tors during the completion of their re-

port on Petitioners.

The reports of the Service investi-

gators, Petitioner TAERGHODSI's employee

identification card, and certain other

Service documents and the oral testimony

of the Petitioners were subsequently ad-

mitted into evidence, over objection of

counsel, at Petitioners' deportation

hearing.

On December 9, 1976, the Immigration

Judge held that all evidence taken in

the hearing was admissible and further

found Petitioners deportable on the

grounds charged.

Appeals were taken by Petitioners to

the Board of Immigration Appeals. The

Board affirmed the findings and concilu-

sions of the Immigration Judge. Peti-

tioners then sought review in the United

States Court of Appeals for the Fifth

Circuit.

By per curiam opinion the Court of

Appeals affirmed the opinion and judg-

ment of the Board of Immigration Appeals

in Petitioner YOUSEFI's case on Febru-

ary 28, 1978, and in Petitioner

TAERGHODSI's case on March 2, 1978.

At Petitioners’ deportation hearings

testimony was elicited which tended to

show that:

Be Sievektas Instruction 214.2(f)

(7) had not been fully complied with by

the Service;

2. Notations made by Service agents

concerning the political activities of

Petitioners had been made on their

records, and;

3. No probable cause existed for

Petitioners’ arrest and, hence, items

seized from them were tainted.

REASONS FOR GRANTING THIS WRIT

1. WHERE THE GOVERNMENT FAILED TO FULLY

COMPLY WITH OPERATING INSTRUCTION

214.2(f)(7) IT IS ESTOPPED FROM

DEPORTING THE PETITIONER.

In relevant part, Operating Instruc-

tion 214.2(f)(7) states that Officers of

the Service shall "meet with foreign

students...and with foreign student ad-

visors...to assure that these students

and advisors have maximum understanding

of the law, regulations and procedures

governing non-immigrant student." O.I.

214.2(f)(7).

Deportation proceedings were initiat-

ed against Petitioner YOUSEFI on the

charge that he had "remained in the Uni-

ted States for a longer time than admit-

ted" in violation of Section 241(a)(2)

of the Immigration and Nationality Act.

Petitioner contends that O.I. 214.2(f)(7)

places an affirmative duty on the Service

and failure to fully comply with its man-

dates precludes the Government from now

deporting him.

Petitioners rely on United States ex

rel. Parco v. Morris, 426 F.Supp. 976

(E.D.Pa. 1977). The Parco court ruled

that the Service's failure to publish the

rescission of an Operating Instruc-

tion created an estoppel against the

Government in favor of the alien. Pe-

titioners here contend that whether the

Service formally rescinds an Operating

Instruction, as in Parco, supra, or

simply fails to implement its mandates

thereby constructively rescinding the

O.I., as in the instant case, makes no

difference. The same result of govern-

ment estoppel is required in both

situations.

The Parco court distinguished Parco

from the situation found in Noel v.

Chapman, 508 F.2d 1023 (CA2 1974), cert.

denied 423 U.S. 824 (1975), where the

Second Circuit focused specifically on

the discretionary nature of voluntary

departure. The distinction is one of

procedure rather than substance. In the

instant case, the central issue is

clearly one of procedure. Petitioners

contend that the procedures utilized by

the Service to constructively rescind

O.I. 214.2(f)(7) are unlawful under

Parco, supra. Without notice of the re-

scission to the alien, the Service is

now estopped to deport him.

Further, Petitioners would urge this

Court to take into account compelling

policy arguments for the retention of

O.I. 214.2(f)(7). The record below is

replete with examples of the Petitioners’

difficulty with the English language and

resultant misconceptions concerning the

requirements of the Immigration and

Nationality Act.

Petitioners' contention is further

bolstered by this Court's ruling in

Accardi v. Shanghnessy, 347 U.S. 260

(1954) where the Court reiterated its

belief that compliance with Service reg-

ulations was an essential safeguard to

the alien's rights. The Accardi Court

found that failure to follow a Service

regulation required reversal of an other-

wise valid deportation order.

2. THE SELECTIVE AND DISCRIMINATORY

ENFORCEMENT OF THE IMMIGRATION LAWS

HAS BEEN BANNED BY THIS COURT'S

HOLDING IN YICK WO V. HOPKINS

In Yick Wo v. Hopkins, 118 U.S. 356

(1886), this Court announced its ban of

the selective or discriminatory enforce-

ment of the law. It is precisely the

unequal application of a law, fair and

impartial on its face, that Petitioners

challenge here. While conscious selec-

tivity is not, in and of itself banned,

selectivity based on some unjustifiable

standard or other arbitrary classifica-

tion has been found to be repugnant to

the Fourteenth Amendment to the Consti-

tution of the United States. Oyler v.

Boles, 368 U.S. 448 (1962).

It is now beyond cavil that politi-

cal activity or association is within

the boundaries of the constitutional

meaning of "unjustifiable standard."

Falk v. United States, 479 F.2d 616

(CA7 1973); United Stated v. Steele,

461 F.2d 1148 (1972); Dixon v. District

of Columbia, 394 F.2d 966 (U.S.App.D.C.

1968).

A reading of the record below will

indicate, Petitioners believe, the sel-

ective and discriminatory nature of

their deportation proceedings. The use

of deportation to stifle dissent or to

rid our country of those people who hold

political views unpopular with the Go-

vernment cannot be condoned and it is

respectfully urged that this Court fol-

low the dictates of Lennon v. United

States, £27 F.2d 187 (CA2 1975).

3. THE IMMIGRATION JUDGE REVERSIBLY

FERRED BY DENYING PETITIONER'S

MOTION TO SUPPRESS

Petitioners were arrested without

warrant and without probable cause.

Statements and tangible evidence seized

from them are, therefore, inadmissible

and may not be used as a basis for find-

ing deportability.

Petitioners rely primarily on the re-

cent case of Navia-Duran v. Immigration

and Naturalization Serv., 569 F.2d 809

(CAl 1977). Petitioner TAERGHODSI's

employee identification card, clearly a

"fruit of the poisonness tree" cannot

be used as evidence, nor can his subse-

quent statements given over objection of

counsel. Id.

CONCLUSION

Petitioners urge that the Service is

estopped from deporting them for failure

to implement their own regulations, for

selectively initiating deportation pro-

ceedings and for incorrectly admitting

certain evidence.

Respectfully submitted,

JAMES REIF

Counsel for Petitioners

308 Livingston

Brooklyn, New York

212-858-9131

OF COUNSEL:

Collins & Felker

2323 Caroline, #1200

Houston, Texas

713-654-0620

May 31, 1978

APPENDIX A

UNITED STATES DEPARTMENT

OF JUSTICE

BOARD OF IMMIGRATION APPEALS

FILE NO. A21 490 974

IN DEPORTATION PROCEEDINGS

APPEAL

CHARGE:

Order: Sec.24l(a(2), I&N Act

(8 U.S.C. 1251(a)(2)-Non-

immigrant remained longer

In Re: NEZAM YOUSEFI

Application: Termination of Proceedings

July 19, 1977

In a decision dated December 7, 1976,

the immigration judge found respondent

deportable under section 24l(a)(2) of

the Immigration and Nationality Act, as

a non-immigrant who had overstayed the

term permitted him by the Service. The

immigration judge granted the respondent

voluntary departure in lieu of deporta-

tion. The respondent appeals, alleging

that irregularities in his arrest and in

the initiation of the proceedings by the

Service mandate termination of these

proceedings. Additionally, he alleges

that the Government is estopped from

deporting him on the stated charge,

A-1

Since the Service has not complied with

its own Operating Instructions, in that

it has failed to adequately apprise for-

eign students in the Houston area of the

requirement that they must file for an

extension of stay at the expiration of

their visas. The appeal will be dis-

missed.

The respondent, a native and citizen

of Iran, entered the United States as a

nonimmigrant student on April 20, 1974

authorized to remain until April 19,

1976. On May 1, 1976, the respondent

was arrested by officers of the Houston

Police in connection with his activi-

ties at a political demonstration. 1/

On May 2, he was released into the cus-

tody of Service officers. An Order to

Show Cause was issued by the Service,

charging the respondent with deporta-

bility under section 241(a)(2) of the

Act, in that his authorized period of

instruction in the United States had ex-

pired some 13 days before. On October

27, 1976, at one of several hearings

conducted in connection with respondent's

case, the respondent admitted all alle-

gation contained in the Order to Show

Cause. However, he denied deportability-

alleging that he had been the victim of

selective initiation of deportation pro-

ceedings by the Service, and that, by

its alleged non-compliance with Service

Operating Instructions §$214.2(f)(7), the

Service was estopped from effecting his

deportation on the stated charge. The

immigration judge found against the res-

pondent on both of these arguments, and

found him deportable under Section 214

A-2

(a)(2) of the Act.

The respondent's case was heard by

the immigration judge in a consolidated

proceeding involving four other respon-

dents. The allegations of facts con-

tained in the five Orders to Show Cause

were not identical. In Matter of

Taerghodsi, Interim Decision (BIA

June 28, 1977), involving an appeal

from a finding of deportability steming

from these same proceedings, we defined

the standards which should govern the

immigration judge's decision to consoli-

date or hear separately the cases of

different respondents. As in that case,

our review of the record satisfies us

that the respondent in this case was af-

forded the opportunity to fully and

clearly litigate his claims. In con-

trast with Matter of Taerghodsi, supra,

the respondent and two co-respondents

joined in several arguments to the in-

migration judge. Since the issues of

fact in the respondent's particular

case were not complex, the immigration

judge was clearly justified in consoli-

dating the proceedings of the respondent

and the two co-respondents joining in

the estoppel and selective initiation of

deportation arguments. Such consolida-

tion clearly promoted administrative ef-

ficiency without prejudicing the res-

pondent's due process rights.

On appeal, the respondent argues

first that the finding of deportability

A-3

was based upon evidence illegally seized

from him by the Houston Police. However,

the record establishes that the respon-

dent admitted the allegations contained

in the Order to Show Cause at the hear-

ing. It is settled that irregularities

in the arrest and interrogation proce-

dure will not preclude a valid finding

of deportability if that finding is

based upon evidence unrelated to the

allegedly illegal activity. U.S. ex rel.

Bilokumsky v. Todd, 263 U.S. 149 (1923);

Avila-Gallegos v. INS, 525 F.2d 666

(CA2 1975). Since the respondent admit-

ted the allegations in the Order to Show

Cause, and since these allegations, once

admitted, are sufficient to establish

deportability under section 241(a)(2),

the respondents claim is without merit.

III.

The respondent next argues that the

Government is estopped from deporting

him because Service officers in the

Houston area have not complied with Ser-

vice Operating Instructions section 214.

2(f)(7). This instruction states that

officers of the Service shall "meet with

foreign students...within their juris-

diction and with foreign student advi-

sors...to assure that these students and

their advisors have maximum understand-

ing of the law, regulations, and pro-

cedures governing non-immigrant students.

The respondent alleges that at no

time during his status as a nonimmigrant

did Service officers meet with him or

other nonimmigrant students to carry out

this directive. However, the Foreign

A-4

Student Advisor employed by the res-

pondent's institution testified at the

hearing that Service officers met with

foreign student advisors at regular in-

tervals in connection with immigration

law and procedure. Even if non-

compliance with OI 214.2(f)(7) would

preclude the initiation of deportation

proceedings, the Service in this case

has complied substantially with its

terms.

Additionally, the directive contain-

ed in OI 8214.2(f)(7) does not serve to

cast upon the Service the burden of in-

suring that every student in its juris-

diction maintains his status properly.

That burden rests ultimately upon the

student himself. Form I-20A, issues to

each prospective foreign students for

his own records before his arrival in

the United States, states clearly:

"A nonimmigrant student is permitted

to remain in the United States only

while maintaining non-immigrant student

Status, and in any event not longer than

the period fixed at time of admission...

unless he applies to the Immigration and

Naturalization Service on Form I-538 in

accordance with the instructions on that

form between 15 and 30 days prior to the

expiration of the period of his authori-

zed stay and obtains an extension of his

stay."

Form I-538, filed by the respondent on

April 28, 1975, contains a similar noti-

fication. The Service cannot be held

to bear the responsibility for the res-

A-5

pondent's disregard of Service require-

ments of which he was on full notice.

We find that the respondent has not es-

tablished the sort of detrimental re-

liance necessary to estop the Govern-

ment. Cf. Matter of Lavoie, 349 F.Supp.

68 (D.V.I. 1972; Gesturo v. District

Director, INS, 337 F.Supp. 1 ,

Cal. 1971)

IV.

The respondent finally argues that he

has been singled out for the initiation

of deportation proceedings solely be-

cause of his political beliefs. The re-

cord reveals that a Form G-600A "Control

Card" was attached to the respondent's

file after he had been remanded to Ser-

vice custody on May 2, 1976. This card

bears the notation "Iranian Students

Association."' At the hearing, a Service

investigator, when questioned as to the

possible relevance of this notation in

a case involving a student overstay,

stated that this notation indicated "a

certain type of case, the real type of

case....'"' The respondent argues that

this statement reveals the true reason

for his deportation.

The initiation of deportation proce-

edings against an alien whom the District

Director has cause to believe is deport-

able is a matter within the discretion of

the District Cirector. While the respon-

dent is undoubtedly correct in stating

that this discretion may not be abused

by the District Cirector, there is noth-

ing in the record that the respondent

A-6

has pointed us to which would sustain

the heavy burden of showing an abuse of

discretion by the District Cirector in

this case. The investigator's state-

ment, without more, is clearly insuffi-

cient to establish that there has been

any abuse of discretion. It is ambiguous

and the respondent has furnished us with

no evidence which would tend to substan-

tiate his charge that this statement

should be read to indicate a desire to

effect his deportation solely because

of his political beliefs.

Since we find that the respondent's

deportability has been established upon

clear, convincing, and unequivocal evi-

dence, we shall dismiss the appeal. Be-

cause the term of voluntary departure

granted the respondent by the immigra-

tion judge has expired, we shall grant

the respondent 30 days in which to de-

part from the United States voluntarily.

See Matter of Choularis, Interim Deci-

sion (BIA March 29, 1977).

ORDER: The appeal is dismissed.

FURTHER ORDER: The respondent is

permitted to depart from the United

States voluntarily within 30 days from

the date of this order or any extension

beyond that time as may be granted by

the District Director; and in the event

of failure so to depart, the respondent

shall be deported as provided in the

immigration judge's order.

Chairman

1/ No evidence of prosecution on this

charge appears in the record.

A-8

UNITED STATES DEPARTMENT

OF JUSTICE

BOARD OF IMMIGRATION APPEALS

FILE NO. A21 369 456

IN DEPORTATION PROCEEDINGS

APPEAL

CHARGE :

Order: Sec. 241(a)(9), I&N Act

(8U.S.C. 1251(a)(9))-Nonimmi-

grant, failed to maintain status

In Re: MAJID TAERGHODSI

Application: Termination

June 28, 1977

In a decision dated December 9, 1976,

the immigration judge found the respon-

dent deportable under section 241(a)(9)

of the Immigration and Nationality Act

on the ground that he had failed to

maintain his nonimmigrant student status.

The respondent was granted voluntary de-

parture in lieu of deportation. The

respondent appeals from the finding of

deportability, arguing that it was based

on evidence unlawfully seized and which

should have been excluded from consider-

ation at the hearing. The appeal will be

dismissed.

The respondent, a native and citizen

of Iran, was admitted to the United

States as a nonimmigrant student on

December 31, 1970. On May 1, 1976, he

A-9

was arrested by the Houston police in the

aftermath of a political demonstration,

apparently on the charge of obstructing

traffic. 1/ After transportation to the

station house for booking, the respon-

dent's personal effects were confisca-

ted. Upon ascertaining that the respon-

dent was an alien and that he was unable

to verify his alien status, the Immigra-

tion and Naturalization Service was noti-

fied.

On May 2, 1976, the respondent was

remanded to the custody of Service of-

ficers. His personal effects, confis-

cated at the time of his incarceration

were also turned over to the Service of-

ficers. Among these effects was a docu-

ment issued by the Marriott Corporation,

bearing the respondent's name, and re-

lating his participation in an "Employee

Health and Welfare Benefits Plan" admin-

istered by that corporation.

An Order to Show Cause was issued by

the Service on May 3, 1976, charging the

respondent with deportability under sec-

tion 241(a)(9) of the Act. Specifically,

it was alleged that the respondent had

violated his nonimmigrant status by ac-

cepting employment without the advance

permission of the Service, as required

by 8 C.F.R. 214.2(f)(6).

Hearings were held before the im-

migration judge on June 16, October 17,

and November 15, 1976. At these hear-

ings, the respondent's case was heard in

conjunction with the cases of four other

aliens, all of whom had been arrested at

A-10

oe ek be lel eee end Ree eee omen” .

Se Re Ges eens Sut ee A

May lst political demonstration.2/ The

five respondents were represented by the

same counsel. The immigration judge

denied the motion to suppress the iden-

tification card signed by the Houston

police. He relied upon this card and

statements made by the respondent at the

hearing to find the respondent deportable

under section 241(a)(9) by clear, con-

vincing, and unequivocal evidence.

We are faced at the outset with some

question as to the procedure employed by

the immigration judge in this case. The

respondent's case was heard during three

different hearings, interspersed with

the cases of four other respondents

charged with deportability on unrelated

grounds. 3/ However, after two prelimi-

nary motions, made in conjunction with

two or more of the other respondents 4/,

were denied by the immigration judge,

all nexus between the respondent's case

and the cases of the other four respon-

dents dissolved. 5/ The respondent's

case was nevertheless not severed from

those of the other four respondents. We

feel that it is appropriate at this time

to discuss the considerations which

Should govern the immigration judge's de-

cision whether to consolidate or hear

separately the cases of different alien

respondents.

Section 242(b) of the Immigration

and Nationality Act grants wide latitude

to the Attorney General to determine the

A-11

nature of deportation proceedings, man-

dating only that certain procedures es-

sential to procedural due process be

followed by the immigration judge. See

generally Kwong Hai Chew v. Colding,

344 U.S. 590 (1953); Shaughnessy v.

United States, 345 U.S. 206 (1953).

The regulations issued by the Attor-

ney General do not specifically address

the issue of joinder or consolidation of

proceedings. However, 8 C.F.R. 242.8(a)

specifies that it is within the power of

the immigration judge "to take any...

action consistent with applicable pro-

visions of law and regulation as may be

appropriate to the disposition of the

case." We interpret this provision to

allow the immigration judge, subject to

the requirements of procedural due pro-

cess, to consolidate the cases of dif-

ferent respondents, if he deems such

consolidation necessary to promote ad-

ministrative efficiency. 6/

This interpretation of 8 C.F.R. 242.

8(a) finds support in judicial decisions

concerning the authority of a hearing

officer to consolidate proceedings in

other types of federal administrative

proceedings. In Association of Massa

chusetts Consumers, Inc. v. U.S. Securi-

ties and Exchange Commission, 516 F.2d

711 (D.C. Cir. 1975), the court stated:

No principle of administrative

law is more firmly established than

that of agency control over its own

calendar...Consolidation...and si-

milar questions are housekeeping

A-12

details addressed to the discretion

of the agency and, due process or

Statutory considerations aside, are

no concern of the courts.

ery ts 516 F.2d