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In re D-J-, Respondent 

Decided April 17, 2003 

U.S. Department of Justice

Office of the Attorney General 

(1) The Attorney General has broad discretion in bond proceedings under section 236(a) 

of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2000), to determine whether 

to release an alien on bond. 

(2) Neither section 236(a) of the Act nor the applicable regulations confer on an alien the 

right to release on bond. 

(3) In determining whether to release on bond undocumented migrants who arrive in the 

United States by sea seeking to evade inspection, it is appropriate to consider national 

security interests implicated by the encouragement of further unlawful mass migrations and 

the release of undocumented alien migrants into the United States without adequate 

screening. 

(4) In bond proceedings involving aliens seeking to enter the United States illegally, where 

the Government offers evidence from sources in the Executive Branch with relevant 

expertise establishing that significant national security interests are implicated, Immigration 

Judges and the Board of Immigration Appeals shall consider such interests. 

(5) Considering national security grounds applicable to a category of aliens in denying an 

unadmitted alien’s request for release on bond does not violate any due process right to an 

individualized determination in bond proceedings under section 236(a) of the Act. 

(6) The denial of the respondent’s release on bond does not violate international law. 

(7) Release of the respondent on bond is unwarranted due to considerations of sound 

immigration policy and national security that would be undercut by the release of the 

respondent and other similarly situated undocumented alien migrants who unlawfully 

crossed the borders of the United States on October 29, 2002; further, the respondent failed 

to demonstrate adequately that he does not present a risk of flight if released and should be 

denied bond on that basis as well. 

IN BOND PROCEEDINGS 

The respondent is an undocumented alien from Haiti who was taken into 

custody and detained by the Immigration and Naturalization Service (“INS”) 

on October 29, 2002, while attempting to evade lawful immigration 

procedures and enter the United States illegally. He arrived aboard a vessel 

that sailed into Biscayne Bay, Florida, on that date, carrying 216 

undocumented aliens from Haiti and the Dominican Republic. He and other 

passengers on the vessel were apprehended ashore after the vessel sought to 

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evade coastal interdiction by the United States Coast Guard and after many 

of the aliens sought to evade law enforcement authorities ashore. See INS 

Brief in Support of Bond Appeal, Exh. A (“INS Brief”). Respondent was 

placed in removal proceedings and charged as being an inadmissible alien 

under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 

8 U.S.C. § 1182(a)(6)(A)(i) (2002) (“INA”). He is now seeking asylum in the 

United States and has applied for bond, which would allow his release into 

the community pending disposition on removal or asylum. 

On November 6, 2002, an Immigration Judge (“IJ”) granted respondent’s 

application for release on bond (set at $2,500) over the objections of the INS. 

The INS argued, inter alia, that the release of respondent, and of other 

members of the undocumented migrant group of October 29, would stimulate 

further surges of such illegal migration by sea and threaten important national 

security interests. The INS then appealed the IJ’s decision to the Board of 

Immigration Appeals (“BIA”). The BIA dismissed the appeal, concluding, 

inter alia, that the broad national interests invoked by INS were not 

appropriate considerations for the IJ or the BIA in making the bond 

determination, “[a]bsent contrary direction from the Attorney General.” 

Decision of the Board of Immigration Appeals, In re D-J-, at 2 (March 13, 

2003) (“BIA Dec.”). Exercising authority transferred to the Department of 

Homeland Security (“DHS”) by the Homeland Security Act of 2002 (“HSA”), 

and pursuant to the provisions of 8 C.F.R. § 1003.1(h)(1)(iii), the Under 

Secretary for Border and Transportation Security has now referred the BIA’s 

decision to me for review.1 This referral automatically stayed the BIA’s 

order pending my decision. See 8 C.F.R. § 1003.19(i)(2). 

On February 12, 2003, the IJ denied respondent’s application for asylum. 

His appeal of that decision is pending before the BIA. 

Although authority to enforce and administer the INA and other laws 

related to the immigration and naturalization of aliens has recently been 

transferred to the Secretary of Homeland Security by the HSA, the Attorney 

General retains his authority to make controlling determinations with respect 

On March 1, 2003, the INS was transferred from the Department of Justice to the 

Department of Homeland Security pursuant to the Homeland Security Act of 2002, Pub. L. 

No. 107-296, 116 Stat. 2135, 2178. The Executive Office for Immigration Review, however, 

remains in the Department of Justice. On February 28, 2003, the Attorney General published 

a technical rule that moved 8 C.F.R. § 3.1(h) (2002) to 8 C.F.R. § 1003.1(h). See Aliens and 

Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824, 9332 

(Feb. 28, 2003) (to be codified at 8 C.F.R. § 1003.1(h)). The authority of the INS 

Commissioner to refer Board decisions to the Attorney General is now vested in the Secretary 

of Homeland Security, or in “specific officials of the Department of Homeland Security 

designated by the Secretary with the concurrence of the Attorney General.” 8 C.F.R. 

§ 1003.1(h)(iii). 

573 

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to questions of law arising under those statutes.2 This statutory framework is 

consistent with the Attorney General’s traditional role as the primary 

interpreter of the law within the Executive Branch. See generally 28 U.S.C. 

§§ 511-13 (2000). 

Pursuant to the authority and discretion vested in me under the provisions 

of section 236(a) of the INA, 8 U.S.C. § 1226(a) (2000),3 I have determined 

that the release of respondent on bond was and is unwarranted due to 

considerations of sound immigration policy and national security that would 

be undercut by the release of respondent and other undocumented alien 

migrants who unlawfully crossed the borders of the United States on 

October 29, 2002. I further determine that respondent has failed to 

demonstrate adequately that he does not present a risk of flight if released on 

bond and that he should be denied bond on that basis as well. See 8 C.F.R. 

§ 236.1(c)(8) (2002). Accordingly, I order that the BIA’s decision and order 

be vacated, and that respondent be denied bond and detained pending 

appropriate disposition and proceedings respecting his status under the 

immigration laws. 

2 See section 103(a)(1) of the INA, 8 U.S.C. § 1103(a)(1), as amended by Homeland Security 

Act of 2002 Amendments, Division L of Pub. L. No. 108-7, § 105(a)(1), 117 Stat. 531 

(2003), which provides: 

The Secretary of Homeland Security shall be charged with the administration and 

enforcement of this chapter and all other laws relating to the immigration and naturalization 

of aliens, except insofar as this chapter or such laws relate to the powers, functions, and 

duties conferred upon the President, Attorney General, the Secretary of State, the officers 

of the Department of State, or diplomatic or consular officers: Provided, however, That 

determination and ruling by the Attorney General with respect to all questions of law shall 

be controlling. 

3 Section 1102 of the HSA, 116 Stat. at 2274, added a new subsection (g) to section 103 of 

the INA, providing as follows: 

The Attorney General shall have such authorities and functions under this Act and all 

other laws relating to the immigration and naturalization of aliens as were exercised by the 

Executive Office for Immigration Review, or by the Attorney General with respect to the 

Executive Office for Immigration Review, on the day before the effective date of the 

Immigration Reform, Accountability and Security Enhancement Act of 2002. 

The Attorney General’s authority to detain, or authorize bond for aliens under section 236(a) 

of the INA is one of the authorities he retains pursuant to this provision, although this authority 

is shared with the Secretary of Homeland Security because officials of that department make 

the initial determination whether an alien will remain in custody during removal proceedings. 

See sections 103(a), (g) of the INA, as amended; 8 C.F.R. §§ 236.1(c), (d), 287.3(d) (2002). 

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I. 

My review of the BIA’s decision in this case is de novo; it is not confined 

to reviewing the decisions of the BIA or the IJ for legal or factual error. See 

Deportation Proceedings of Joseph Patrick Thomas Doherty, 12 Op. O.L.C. 

1, 4 (1988) (“[W]hen the Attorney General reviews a case pursuant to 

8 C.F.R. § 3.1(h), he retains full authority to receive additional evidence and 

to make de novo factual determinations.”). In making their decisions in this 

matter, both the IJ and the BIA were exercising limited authority that is 

dependent upon delegation from the Attorney General. See id. at 4. When 

I undertake review of such decisions pursuant to a referral under 8 C.F.R. 

§ 1003.1(h), the delegated authorities of the IJ and BIA are superseded and 

I am authorized to make the determination based on my own conclusions on 

the facts and the law. The recent promulgation of 8 C.F.R. § 1003.l(d)(3), 

which precludes the BIA from engaging in de novo review of an IJ’s findings 

of fact, does not affect the de novo standard articulated in Doherty because 

that regulation does not govern the authority of the Attorney General to 

review BIA decisions. 

I now turn to the question of whether respondent should have been detained 

or released on bond under the authority of section 236(a) of the INA. 

II. 

A. 

The law governing the detention or release of aliens such as respondent 

(i.e., aliens arrested and detained pending a decision on removal) is set forth 

in section 236(a) of the INA. It provides that the Attorney General may 

(1) continue to detain the alien; or (2) release the alien on bond or conditional

4 parole. See section 236(a) of the INA. Conditional parole is not placed in 

issue here, so the only question is whether the respondent should be detained 

or released on bond. 

As recognized by the Supreme Court, section 236(a) does not give detained 

aliens any right to release on bond. See Carlson v. Landon, 342 U.S. 524, 

534 (1952). Rather, the statute merely gives the Attorney General the 

authority to grant bond if he concludes, in the exercise of broad discretion, 

that the alien’s release on bond is warranted. The extensive discretion 

granted the Attorney General under the statute is confirmed by its further 

provision that “[t]he Attorney General’s discretionary judgment regarding the 

application of this section shall not be subject to review.” Section 236(c) of 

the INA. Even apart from that provision, the courts have consistently 

recognized that the Attorney General has extremely broad discretion in 

4 See supra n.3. 

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determining whether or not to release an alien on bond under this and like 

provisions. E.g., Carlson, 342 U.S. at 540; United States ex rel. Barbour v. 

District Dir. of INS, 491 F.2d 573, 577-78 (5th Cir.), cert. denied, 419 U.S. 

873 (1974). Further, the INA does not limit the discretionary factors that may 

be considered by the Attorney General in determining whether to detain an 

alien pending a decision on asylum or removal. See, e.g., Carlson, 342 U.S. 

at 534 (Attorney General’s denial of bail to alien is within his lawful 

discretion as long as it has a “reasonable foundation”); Barbour, 491 F.2d at 

578 (INS finding that alien was a threat to national security warranted denial 

of bond, applying “reasonable foundation” standard); see also Sam Andrews’ 

Sons v. Mitchell, 457 F.2d 745, 748 (9th Cir. 1972) (Attorney General’s 

exercise of discretionary authorities under the INA must be upheld if they are 

founded “on considerations rationally related to the statute he is 

administering”). 

Further discretionary authority for the release on bond of aliens such as 

respondent is found in subpart A, section 236.1 of the INS regulations 

governing “Detention of Aliens Prior to Order of Removal.” See 8 C.F.R. 

§ 236.l(c)(8). This regulation provides: 

Any officer authorized to issue a warrant of arrest may, in the officer’s discretion, 

release an alien not described in section 236(c)(1) of the Act, under the conditions at section 

236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction 

of the officer that such release would not pose a danger to property or persons, and that the 

alien is likely to appear for any future proceeding. 

Id. (emphasis added). This provision gives the DHS discretionary authority 

to release a covered alien on bond if, and only if, the alien makes a 

satisfactory demonstration with respect to the stated criteria. Like section 

236(a), it does not establish any right to release on bond. 

B. 

I will now briefly summarize the pertinent facts and contentions of the 

parties indicated in the record. 

As noted above, respondent arrived off the shores of Florida in an 

overloaded vessel with 216 undocumented aliens from Haiti and the 

Dominican Republic on October 29, 2002. After the vessel sought to evade 

the orders and interdiction efforts of a U.S. Coast Guard (“USCG”) vessel, 

some of the alien passengers jumped from the vessel and swam ashore. After 

the migrant vessel ran aground, the remaining passengers disembarked and, 

despite the order of USCG officers to stop, ran ashore and fled from law 

enforcement officers before they were apprehended. See INS Brief, Exh. A 

(Declaration of Captain Mark J. Kerski, USCG) (“Kerski Declaration”). I 

find nothing in the record showing that respondent was not among the alien 

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migrants who disobeyed the orders of, and sought to evade, USCG or law 

enforcement officers ashore in an effort to enter the United States unlawfully. 

The respondent offered limited evidence and information in the proceedings 

below in support of his claims that he did not present a danger to the 

community, a risk of flight, or a threat to national security. Respondent 

testified that he has not been arrested or convicted of a crime; and that, if 

released, he would live with an uncle residing in New York, New York, who 

would provide him with food, shelter, and transportation while he applied for 

asylum. Memorandum Decision of the Immigration Judge, In re D-J-, at 2 

(Dec. 12, 2002) (“IJ Dec.”). 

Respondent’s brief before the BIA asserts that he was “willingly taken into 

INS custody.” Respondent’s Brief in Support of the Immigration Judge’s 

Custody Determination at 3 (“Respondent’s Brief”). That assertion, however, 

does not address whether the respondent was among the migrants who sought 

to evade USCG and other law enforcement officers after coming ashore, as 

indicated in the USCG’s Kerski Declaration. Respondent’s brief further 

asserts that, because he does not speak or understand English, he could not 

be expected to obey any orders from English-speaking law enforcement 

officers at the time he came ashore. That assertion, however, does not 

address the likelihood, indicated by the content of the Kerski Declaration, that 

the circumstances in which those orders were issued were such that their 

meaning would have been clear in context, without regard to the particular 

words uttered by the officers. See INS Brief, Exh. A, ¶¶ 4-6. 

In opposing respondent’s contentions, the INS submitted declarations from 

officers of the Coast Guard, the Department of State, and the Department of 

Defense (“DOD”) as exhibits before the IJ and the BIA.5 INS maintains that 

these declarations show that there are strong concerns of national security 

requiring the continued detention of the respondent and similarly situated 

undocumented migrants pending removal proceedings. Two general areas of 

concern are implicated. First, there is a concern that the release of aliens 

such as respondent and the other October 29 migrants would tend to 

encourage further surges of mass migration from Haiti by sea, with attendant 

strains on national and homeland security resources. Such mass migrations 

would also place the lives of the aliens at risk. Second, in light of the 

terrorist attacks of September 11, 2001, there is increased necessity in 

preventing undocumented aliens from entering the country without the 

screening of the immigration inspections process. 

5 The exhibits submitted with the INS brief included: Declaration of Captain Mark J. Kerski, 

USCG (Exhibit A); Memorandum from the United States Department of State (Exhibit B); 

Declaration of Captain Kenneth A. Ward, USCG (Exhibit C); Declaration of Johnny Williams 

(Exhibit D); Supplemental Declaration of Captain Kenneth A. Ward, USCG (Exhibit E); and 

Declaration of Joseph J. Collins, Deputy Assistant Secretary of Defense for Stability 

Operations (Exhibit F). 

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The first area of national security concern advanced by INS is the threat 

of further mass migration. INS asserts that reports and rumors of successful 

entry into the United States by Haitian migrants have fueled recent migration 

surges and the perception of further successful entries could encourage 

further mass migration attempts.6 In support of this contention, INS has 

submitted a memorandum issued by the State Department supporting 

detention of the migrants who landed in Florida on October 29, 2002, in order 

to prevent further mass migrations. The memorandum states in relevant part: 

The disposition of those detained in the October 29 arrival will spur further migration if they 

are released into the U.S. Such treatment would create a perception in Haiti of an easing 

in U.S. policy with respect to admission of migrants. For this reason, the Department of 

State strongly recommends that the 216 migrants (207 Haitians, 9 Dominicans) from the 

boat which reached Key Biscayne on October 29 be detained while they undergo 

processing. The migrants should be detained unless and until they demonstrate a 

well-founded fear of persecution. Those who cannot do so should continue to be held, 

absent a compelling humanitarian reason for release, until they can be expeditiously 

repatriated. 

INS Brief, Exh. B (State Department Memorandum). The State Department 

memorandum sets forth extensive and detailed information documenting the 

relationship between perceptions in Haiti of successful U.S. entry by seagoing 

migrants and the likelihood of further mass migrations. Id. 

The declarations submitted from the Coast Guard (see supra n.6) and the 

Defense Department express corroborating statements regarding this concern. 

The Coast Guard states that “[a]necdotal reporting and operational 

experience strongly suggests that detaining and swiftly repatriating those who 

illegally and unsafely attempt to enter the United States by sea is a significant 

deterrent to surges in illegal immigration and mass migration.” INS Brief, 

Exh. C, ¶ 9 (Declaration of Captain Kenneth A. Ward, USCG). Similarly, the 

Department of Defense declaration states that “[a]ctual or even perceived 

changes in U.S. immigration policy can trigger mass migration events by 

encouraging other potential illegal migrants.” See INS Brief, Exh. F, ¶ 5 

(Declaration of Joseph J. Collins, Deputy Assistant Secretary of Defense for 

Stability Operations). 

The INS submissions also outline an additional national security 

implication of encouraging future mass migrations by sea from Haiti. The 

Coast Guard declaration asserts that continued mass migrations from Haiti 

have “heavily taxed Coast Guard capacity and capabilities,” while “reducing 

Following the successful landing of more than 200 Haitians on October 29, 2002, on 

November 7, 2002, and again on November 9, 2002, the USCG successfully interdicted three 

groups of undocumented Haitian migrants attempting to transit to the United States via the 

Bahamas. In all, 264 Haitian migrants were interdicted on these dates. Such incidents are 

“typical of a surge in Haitian migrant departures following similar successful landings and 

demonstrates the ‘pull’ factor that successful landing can have.” INS Brief, Exh. E, ¶ 3 

(Supplemental Declaration of Captain Kenneth A. Ward, USCG). 

578 

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responsiveness in other mission areas.” INS Brief, Exh. C, ¶ 7. The 

Department of Defense, which is also involved in efforts to contain such 

overseas migrations, also asserts that the demands of mass migrations from 

Haiti “would create a drain on scarce assets that are being used in or 

supporting operations elsewhere.” INS Brief, Exh. F, ¶ 8. 

The declarations submitted by INS also substantiate a national security 

concern raised by the prospect of undocumented aliens from Haiti being 

released within the United States without adequate verification of their 

background, associations, and objectives. Thus, the State Department 

declaration asserts that it has “noticed an increase in third country nations 

(Pakistanis, Palestinians, etc.) using Haiti as a staging point for attempted 

migration to the United States. This increases the national security interest 

in curbing use of this migration route.” INS Brief, Exh. B, ¶ 11. Relatedly, 

the Coast Guard’s supplemental declaration asserts that the boatloads of 

interdicted Haitians have included persons previously deported for drug 

trafficking and subject to outstanding felony warrants. INS Brief, Exh. E, ¶ 4 

(Supplemental Declaration of Captain Kenneth A. Ward, USCG). The Coast 

Guard further asserts that “because maritime migrants are typically 

undocumented and carry little or no identification, it is often difficult to 

ascertain the identity and background of interdicted persons, particularly in 

large groups, which presents potential threats to officer safety, as well as 

national security.” Id. 

III. 

Having considered the record and the briefs of the parties, and exercising 

my authority under section 236(a) of the INA, I have determined that the 

release of respondent on bond is unwarranted. 

I conclude that releasing respondent, or similarly situated undocumented 

seagoing migrants, on bond would give rise to adverse consequences for 

national security and sound immigration policy. As demonstrated by the 

declarations of the concerned national security agencies submitted by INS, 

there is a substantial prospect that the release of such aliens into the United 

States would come to the attention of others in Haiti and encourage future 

surges in illegal migration by sea. Encouraging such unlawful mass 

migrations is inconsistent with sound immigration policy and important 

national security interests. As substantiated by the government declarations, 

surges in such illegal migration by sea injure national security by diverting 

valuable Coast Guard and DOD resources from counterterrorism and 

homeland security responsibilities. Such national security considerations 

clearly constitute a “reasonable foundation” for the exercise of my discretion 

to deny release on bond under section 236(a). See Carlson, 342 U.S. at 534; 

Barbour, 491 F.2d at 578. 

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I have noted the BIA’s suggestion that the INS’s recent adoption of a policy 

placing certain aliens (including many undocumented aliens who arrive by sea 

and are not admitted or paroled) in expedited removal proceedings in which 

affected aliens, with limited exceptions, would be automatically detained 

without review by an IJ or the BIA tends to negate the INS’s concern 

regarding the encouragement of migration surges. BIA Dec. at 2 n.3; see 

Notice Designating Aliens Subject to Expedited Removal Under Section 

235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 

68,924-26 (Nov. 13, 2002). The offsetting effect suggested by the BIA 

would presumably be due to the prospect that the new expedited removal 

policy will be so restrictive that potential Haitian migrants would learn of that 

and be deterred from future migration attempts, regardless of respondent’s 

fate and that of the other October 29 migrants. While the expedited removal 

policy may reduce the incidence of seagoing Haitian migrants being released 

on bond pending removal, it hardly provides airtight assurance against future 

successful entries by such migrants through legal and extra-legal maneuvers, 

or the encouragement of additional maritime migrations likely to arise from 

such entries. I note, for example, that the policy’s strict detention provision 

is entirely inapplicable to aliens who are admitted or paroled. In any event, 

even if the new policy somewhat reduced the expectations of further 

successful U.S. entries, the release of respondent and hundreds of others from 

the October 29 migrant group would strongly undercut any resultant deterrent 

effect arising from the policy. The persistent history of mass migration from 

Haiti, in the face of concerted statutory and regulatory measures to curtail it, 

confirms that even sporadic successful entries fuel further attempts. I 

therefore am not persuaded that the new expedited removal policy negates the 

migration “surge” consideration. 

I further conclude that the release on bond of undocumented seagoing 

migrant aliens from Haiti without adequate background screening or 

investigation presents a risk to national security that provides additional 

grounds for denying respondent’s release on bond. This consideration is 

fortified by the State Department’s assertion that it has observed an increase 

in aliens from countries such as Pakistan using Haiti as a staging point for 

migration to the United States. Under the current circumstances of a declared 

National Emergency, the Government’s capacity to promptly undertake an 

exhaustive factual investigation concerning the individual status of hundreds 

of undocumented aliens is sharply limited and strained to the limit. Under 

these circumstances, it is reasonable to make a determination that aliens 

arriving under the circumstances presented by the October 29 influx should 

be detained rather than released on bond. There is substantial risk that 

granting release on bond to such large groups of undocumented aliens may 

include persons who present a threat to the national security, as well as a 

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substantial risk of disappearance into the alien community within the United 

States. 

I note that the BIA has acknowledged the seriousness of INS’s arguments 

that the detention or release of these aliens implicates important national 

security interests. See BIA Dec. at 2. The BIA determined, however, that 

such considerations fall “outside the scope of Immigration Judge bond 

proceedings as such proceedings are currently constituted,” except where 

individual considerations show that the respondent is not likely to appear or 

presents a danger to the community. The BIA then stated: “Absent contrary 

direction from the Attorney General, we therefore agree with the Immigration 

Judge’s focus on the respondent’s individual likelihood to appear and 

individual danger to the community.” Id. This opinion provides the BIA and 

Immigration Judges with the “contrary direction” to which the BIA referred. 

In future proceedings involving similarly situated aliens, this opinion 

constitutes binding precedent, requiring the BIA and IJs to apply the standards 

set forth herein, including consideration of national security interests. See 

generally Iran Air v. Kugelman, 996 F.2d 1253, 1260 (D.C. Cir. 1993) 

(administrative judges “are entirely subject to the agency on matters of law”). 

Further, in all future bond proceedings involving aliens seeking to enter the 

United States illegally, where the Government offers evidence from sources 

in the Executive Branch with relevant expertise establishing that significant 

national security interests are implicated, IJs and the BIA shall consider such 

interests. 

Finally, I conclude that respondent has not individually demonstrated that 

he satisfies the prerequisites to discretionary release on bond under the 

provisions of 8 C.F.R. § 236.l(c)(8). INS may (but is not required to) grant 

release under that provision if the alien demonstrates to its satisfaction that 

such release would not pose a danger to property or persons, and that the 

alien is likely to appear for any future proceeding. I do not find that 

respondent has adequately demonstrated that he is likely to appear at future 

proceedings for purposes of granting release on bond pursuant to section 

236(a)(2) of the INA or 8 C.F.R. § 236.l(c)(8). There are strong indications 

in the record that respondent was among those aliens who sought to evade 

Coast Guard and law enforcement officers in a determined effort to effect 

illegal entry into the United States. Because such evasive behavior does not 

provide reassuring evidence of respondent’s likely reliability in appearing for 

future proceedings, it was incumbent upon respondent to produce substantial 

countervailing evidence as to that criterion. I conclude that the minimal 

showing made by respondent on this point was insufficient to demonstrate the 

likelihood of his appearance for future proceedings.7 

7 The INS also offered evidence disputing respondent’s claim that, individually, he does not 

(continued...) 

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In addition, I note that the respondent was denied asylum by the 

Immigration Judge on February 12, 2003. The respondent appealed that 

decision to the BIA on March 14, 2003, and that appeal remains pending. 

The IJ’s denial of the respondent’s application for asylum increases the risk 

that the respondent will flee if released from detention. “A respondent with 

a greater likelihood of being granted relief from deportation has a greater 

motivation to appear for a deportation hearing than one who, based on a 

criminal record or otherwise, has less potential of being granted such relief.” 

Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987). 

IV 

Although neither the IJ nor the BIA chose to address the issue, respondent 

contends that he is constitutionally entitled on due process grounds to an 

“individualized determination” of his request for release on bond and that 

denying bond on broad national security grounds that are generally applicable 

to the October 29 migrants would somehow violate such a right. 

Respondent’s Brief at 6-8. In that regard, I note that several federal appellate 

courts have recently held that a lawful permanent resident alien has a due 

process right to an individualized hearing and determination on whether he 

poses a risk of flight or a danger to the community when subjected to the 

mandatory detention provisions of section 236(c) of the INA. See Kim v. 

Ziglar, 276 F.3d 523 (9th Cir.), cert. granted sub nom. Demore v. Hyung 

Joon Kim, 536 U.S. 956 (2002); Patel v. Zemski, 275 F.3d 299, 314-15 (3d 

Cir. 2001); see also Hoang v. Comfort, 282 F.3d 1247, 1256 (10th Cir. 

2002). Another federal appeals court has reached a contrary conclusion on 

that issue, see Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999), and the 

Supreme Court has granted the Government’s petition for a writ of certiorari 

and heard oral argument in Kim. 

I first note that the decisions in Kim and Patel were specifically addressed 

to the mandatory detention provisions of section 236(c) of the INA and are 

therefore fundamentally distinguishable from the procedures afforded under 

section 236(a). Section 236(c) requires nondiscretionary detention as a 

categorical statutory mandate for those aliens covered by it, whereas section 

236(a) affords aliens to whom it applies the opportunity to seek discretionary 

relief (bond or conditional parole) in a hearing before an Immigration Judge. 

See Kim, 276 F.3d at 533. 

More significantly, however, the holdings in Kim and Patel were premised 

upon the petitioner’s status as a lawful permanent resident alien. See Kim, 

276 F.3d at 528, 534; Patel, 275 F.3d at 307. In contrast, respondent has not 

7 (...continued)

pose a danger to the community and is likely to appear in future proceedings. See INS Brief

at 14-15.

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even been admitted to the United States, let alone acquired the status of a 

lawful permanent resident alien. Respondent’s status is that of an 

undocumented alien, charged as being inadmissible as an alien present in the 

United States without having first been admitted or paroled. See 

section 212(a)(6)(A)(i) of the INA. As an alien who has “not yet gained 

initial admission to the United States,” he does not qualify for the limited due 

process protection extended to “admitted” aliens under the sharply 

distinguishable circumstances presented in Zadvydas v. Davis, 533 U.S. 678, 

682 (2001) (“We deal here with aliens who were admitted to the United States 

but subsequently ordered removed. Aliens who have not yet gained initial 

admission to this country would present a very different question.”). As 

explained by the court in Gisbert v. United States Attorney General, 

988 F.2d 1437, 1440 (5th Cir.), amended on other grounds, 997 F.2d 1122 

(5th Cir. 1993): “Although aliens seeking admission into the United States 

may physically be allowed within its borders pending a determination of 

admissibility, such aliens are legally considered to be detained at the border 

and hence as never having effected entry into this country.” Accord United 

States v. Lopez-Vasquez, 227 F.3d 476, 484-85 (5th Cir. 2000); Zheng v. 

INS, 207 F.Supp.2d 550, 552 (E.D. La. 2002) (“The detention of aliens who 

have been denied initial admission into the United States does not implicate 

the Fifth Amendment, even if such aliens were subsequently paroled or 

released within the country.”). 

Even if the respondent were entitled to an individualized hearing, however, 

such a conclusion would not support a contention that this respondent’s 

request for release on bond must be determined exclusively on the basis of 

his individual situation, rather than on the basis of general considerations 

applicable to a category of migrants, as a matter of constitutional due 

process. The mere fact that general considerations are introduced does not 

negate the individual nature of the hearing. The Attorney General is broadly 

authorized to detain respondent, and deny his request for bond, based on any 

reasonable consideration, individualized or general, that is consistent with the 

Attorney General’s statutory responsibilities. See Reno v. Flores, 507 U.S. 

292, 313-14 & n.9 (1993) (rejecting juvenile aliens’ demands for an 

“individualized custody hearing” and upholding INS use of “reasonable 

presumptions and generic rules” in such cases). 

In any event, I have given full consideration to the individual aspects of 

respondent’s claim for bond based on the record in this proceeding. I find 

nothing in respondent’s individual case that warrants granting him release on 

bond when balanced against the above-described compelling factors that 

militate against such release in the case of undocumented aliens attempting 

illegal entry into the United States under the circumstances presented by the 

October 29 influx. 

583
8 

Cite as 23 I&N Dec. 572 (A.G. 2003) Interim Decision #3488 

Finally, I note that respondent argued to the BIA that an INS policy of 

detaining Haitian migrants in order to deter other Haitians from migrating to 

the United States seeking asylum violates international law. See 

Respondent’s Brief at 8-9. In support of his argument, he invokes the right to 

asylum protected by Article 14 of the Universal Declaration of Human Rights 

(“UDHR”) and an advisory opinion of the United Nations High Commission 

for Refugees stating that “asylum seekers should not be detained for purposes 

of deterrence.” Id. at 8. The BIA did not address respondent’s arguments on 

this point in its decision. 

This argument is without merit. First, the UDHR is merely a nonbinding 

expression of aspirations and principles, rather than a legally binding treaty. 

See Haitian Refugee Center v. Gracey, 809 F.2d 794, 816 n.17 (D.C. Cir. 

1987) (UDHR “is merely a nonbinding resolution, not a treaty”). In any 

event, the application of U.S. law to protect the nation’s borders against mass 

migrations by hundreds of undocumented aliens violates no right protected by 

the UDHR or any other applicable rule of international law. As the Supreme 

Court has recognized, “‘[T]he power to expel or exclude aliens [is] a 

fundamental sovereign attribute exercised by the Government’s political 

departments . . . .’” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting 

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). The 

authority to expel aliens is meaningless without the authority to detain those 

who pose a danger or a flight risk during the process of determining whether 

they should be expelled. The national security interests invoked in this 

opinion are directed at unlawful and dangerous mass migrations by sea, not 

the right to seek asylum. Aliens who do arrive in the United States, including 

the respondent himself, are afforded the right to apply for asylum and have 

those applications duly considered.8 

I note that a regional official of the United Nations High Commissioner for Refugees 

(“UNHCR”) has sent me a letter volunteering certain comments on this proceeding. Letter for 

The Honorable John Ashcroft, Attorney General of the United States, from Guenet 

Guebre-Christos, Regional Representative, United Nations High Commissioner for Refugees, 

Re: Matter of D-J-, Advisory Opinion on Detention of Asylum Seekers (March 28, 2003). 

In brief, the UNHCR letter makes certain arguments invoking purported obligations arising 

under the 1967 Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 

6577 (Jan. 31, 1967) (“Protocol”), and the 1951 United Nations Convention Relating to the 

Status of Refugees, 189 U.N.T.S. 150 (1954), 19 U.S.T. 6259, 6278, T.I.A.S. No. 6577 

(1968) (“Convention”). The United States is not a party to the Convention, but it is a party 

to the Protocol, which incorporates by reference Articles 2 through 34 of the Convention. The 

Protocol is not self-executing, but Congress has incorporated into the INA, through the 

Refugee Act of 1980, the appropriate requirements of the Protocol. Consequently, the 

Protocol does not afford respondent any rights beyond what he is afforded under the federal 

immigration laws, as applied in this decision. See Abdelwahed v. INS, 22 Fed.Appx. 811, 815, 

2001 WL 1480651 (9th Cir. 2001) (stating that “the Protocol does not give [the petitioner] any 

rights beyond what he already enjoys under the immigration statutes”); Legal Obligations of 

(continued...) 

584 
Cite as 23 I&N Dec. 572 (A.G. 2003) Interim Decision #3488 

CONCLUSION

I have determined that respondent’s release on bond under the provisions 

of section 236(a) of the INA is unwarranted. The BIA’s Order of March 13, 

2003, is hereby vacated and respondent is to be detained pending decision on 

removal. 

8 (...continued) 

the United States under Article 33 of the Refugee Convention, 15 Op. O.L.C. 86, 87 (1991) 

(“[T]he Protocol by which the United States adhered to the Convention is not self-executing 

for domestic law purposes. Accordingly, the Protocol itself does not create rights or duties that 

can be enforced by a court.”). 

585