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 custody for that purpose, the special inquiry officer lacks jurisdiction pursuant 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: 

Jules E. Coven, Esquire 

Lebenkoff & Coven 

One East 42d Street 

New York, New York 10017 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

Charles Gordon 

General Counsel 

(Brief filed) 

BEFORE THE BOARD 

(November 21, 1969) 

Respondent, an alien detained by the District Director for deportation, appeals from an order of a special inquiry officer refusing to disturb the District Director's decision to continue respondent 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 directed to surrender on October 27, 1969 for deportation two days 

later. He surrendered as requested and has been in Service custody 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 Immigration and Nationality Act. In his motion papers, counsel challenged 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 opnosed 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 motion. 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 coon21's telephonic request for a stay of deportation. In a confirmarry 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 deed 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 chaliges 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 determinan 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 de458 
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 opposition and the 10-day period provided by 8 CFR 103.5 has long 

expired, the special inquiry officer has thus far deliberately refrained from formally adjudicating respondent's motion to reopen, for reasons which he explains in the order now before us on 

appeal. That order, dated November 4, 1969, denied counsel's application for a redetermination, pursuant to 8 CFR 242.2(b), as 

amended,' of the District Director's decision to continue respondent 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 deportation 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 administrative review of the District Director's detention determination in a 

situation where the deportation order could not be promptly executed 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 before final conclusion, we cannot believe that the regulation intended to make the District Director's detention determination 

administratively conclusive." The special inquiry officer in the instant case rejected the rationale of Matter of Au, stating (opinion, 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 disposition 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 

134 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 important one, we will reconsider it. 

As we pointed out in Matter of Au, the Service's power to detain 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 appellate 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 appellate 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 juisdiction 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 libation, which the Service considered purely dilatory. We conuded 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 elimiated. 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 appeal to this Board inapplicable when the Service is ready to execute 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 designed to change in any way the jurisdictional situation as we 

had construed it in Matter of Au. Indeed, under familiar canons 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 intended 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 absence of any other evidence on the subject, we are justified in concluding 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 language in question is in keeping with the Congressional intent underlying 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 release 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 Commissioner 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 exercise of discretion. Since the respondent is already in court and 

since the court has undoubted power to release, goes the argument, 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 oppositions, 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. Ineed, no satisfactory answer has been supplied to us as to why it 

so important that he be continued in detention pending termiation of the court action. The Service apparently considers his 

tnstitutional argument frivolous and his litigation purely (Mary. It is understandably anxious to have the litigation termitted 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 detenn 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 immition laws. We are aware that in many instances frivolous apIs 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 dilatactics, cannot in our view be considered a legitimate ob-

." We attempt to discourage appeals which are clearly frivo462 
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 similar attempts at frivolous and dilatory litigation. Summary procedures 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 difficult for a United States Attorney to obtain expeditious consideration 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 reopening 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 considerations. 

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 constitutional 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 exclusion 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 respondent will urge and the court will conclude that our order confronted 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 litigation. 

We do not believe that deference to the Court of Appeals requires or even renders it appropriate that the question of respondent'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 special 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 responsibility may not be abdicated by passing it on to the court. 

This is so a fortiori when we take into account the reasons underlying 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 Director'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 litigaion 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 ourelves direct respondent's release. 

4See the letter of the Association of Immigration and Nationality Lawars 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 special 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 Commissioner, 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 Commissioner 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 determinations 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 Association'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 antiquated 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 decisions 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 deporation. 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 disissal 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 disict 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 regulains 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 recurring 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 determinations challenged here only if appellate jurisdiction is sanctioned 

by the regulations. 

Thus the issue we confront solely concerns the proper interpretation 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 provided 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 reguitions obviously is required. However, in the meantime we con-

?de that in cases where the special inquiry officers have no jurisiction 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 consistit 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 proed with deportation, and took him into custody for that purIse. 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 cusly 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 appropriate 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. Sobeloff, to advise it regarding the Attorney General's exercise of his 

power to admit to bail. The Attorney General directed the Solicitor 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 Solicitor General rejected this view, stating that there was coordinate authority in the courts and the Service to grant such release, 

and that it was desirable for the Service to exercise such authority, 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 promulgated. 

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

1954 regulations were adopted primarily to recognize the authority of the Service to grant release on bond while court proceedings 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 consider 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), speci469 
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 judicial review proceedings, and deportation therefore is not imminent, Matter of Au, Interim Decision No. 1939, correctly holds 

that the Board has authority to review the district director's custody 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 desirable 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 litigation, can entertain an application for release on bail while a petition 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 suggestion 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 pendency 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 anticipates 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, settled 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 regulations may be in order and we expect to consider the desirability 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 detemination 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 advised 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: 

 able the Attorney General to complete his review of both the particular case 

and the general procedures applicable to cases of this category, and you informed 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 Hallam, 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 deternine 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 Disrict Director, District Enforcement Officer, or officer in charge having addnistrative jurisdiction over the place where the alien is detained. In addion, 8 CFR 9.6 and 9.4 reserve to the Commissioner and to the Assistant 

ommissioner (Division of Detention, Deportation and Border Patrol) coornate 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 rem, 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 operans instructions issued by the Service. 

!. Changes to be made in procedures governing bail applications in deporion eases. After review of the existing practices, and upon the joint recmendation 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 pols governing bail applications in deportation cases: 

a) In order to provide a quasi-judicial review by a body within the Detment of Justice which is independent of enforcement activities, the presregulations 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 deion. 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 Naturalization Service to review cases, at its option, and to avoid unnecessary appeals, 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 Justice, and to the United States Attorneys, that (1) notwithstanding the pendency of the judicial proceedings, the Department shall consider on its merits 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 administrative bail previously made by Anthony Pino pending review by habeas 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 before 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 Service 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 neither the Service nor this Board has power to adjudicate. The Dis473 
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 discretion. In our opinion of November 21, 1969, relying on the rationale 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 queson whether the language just quoted from the Commissioner's 

.igulation improperly impinged on the appellate jurisdiction deleated 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 jurisdicalai 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 notithe 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 custody 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 regulation, 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. Substantial 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 satisfactorily substitute for a lucid restatement of the provisions 

under review. 

2See 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 preclude 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