In re Manuel Ignacio GALLARDO-Fresneda, Respondent

File A74 171 445 - Krome

Original Panel Decision September 29, 1995

Decided En Banc as Amended January 17, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien’s admission pursuant to the Visa Waiver Pilot Program does not curtail his ability to

obtain a bond redetermination hearing when the Immigration and Naturalization Service has

issued an Order to Show Cause and Notice of Hearing (Form I-221) and the alien has applied

for asylum and withholding of deportation.

FOR RESPONDENT: Roberto A. Godoy, Esquire, Miami, Florida

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Roger A. Bernstein,

Assistant District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,

MATHON, and GUENDELSBERGER, Board Members

DUNNE, Vice Chairman:

In a memorandum dated September 1, 1995, the Immigration Judge found

the respondent ineligible for a bond redetermination hearing and certified the

respondent’s case to this Board pursuant to 8 C.F.R. § 3.1(c) (1995). Certification will be granted and the record will be remanded to the Immigration

Judge.

The record indicates that the respondent is a native of Cuba and citizen of

France. He entered the United States on October 29, 1994, as a nonimmigrant

visitor pursuant to the Visa Waiver Pilot Program as set forth at section 217

of the Immigration and Nationality Act, 8 U.S.C. § 1187 (1994). The Order to

Show Cause and Notice of Hearing (Form I-221), issued on June 22, 1995,

alleges that the respondent remained in the United States beyond his authorized stay; as a result, the Immigration and Naturalization Service has

charged the respondent with deportability under section 241(a)(1)(B) of the

Act, 8 U.S.C. § 1251(a)(1)(B) (1994).

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Subsequent to the Service’s determination of the respondent’s

deportability, the respondent requested asylum in the United States and submitted a Request for Asylum in the United States (Form I-589).1 Inasmuch as

the Service held the respondent without bond by directive of the district

director, the respondent requested a bond redetermination hearing before an

Immigration Judge. The Immigration Judge declined to conduct a bond

redetermination hearing, finding that the respondent had waived his right to

request a custody hearing. He further found that federal regulations prevented the respondent from appealing his decision, but he certified the

respondent’s case to the Board pursuant to 8 C.F.R. § 3.1(e).

Upon our review of the record, we find that the respondent is entitled to a

bond redetermination hearing pursuant to section 242 of the Act, 8 U.S.C.

§ 1252 (1994). The nature of his nonimmigrant admission, pursuant to the

Visa Waiver Pilot Program, does not curtail his ability to obtain a bond

redetermination hearing where the Service has issued an Order to Show

Cause and he has requested asylum and withholding of deportation.

Section 217 of the Act provides for a Visa Waiver Pilot Program under

which visitors to the United States from specified countries may stay in the

United States for up to 90 days without a visa. Section 217(b) provides as

follows:

An alien may not be provided a waiver under the pilot program unless the alien has waived

any right -

(1) to review or appeal under this Act of an immigration officer’s determination as to the

admissibility of the alien at the port of entry into the United States, or

(2) to contest, other than on the basis of an application for asylum, any action for deportation against the alien.

Similarly, federal regulations provide that a deportable alien who entered

under the provisions of section 217 “shall be removed . . . without referral of

the alien to an immigration judge,” except that an alien “who applies for asylum in the United States must be referred to an immigration judge for a determination of deportability.” See 8 C.F.R. § 217.4(c) (1995); see also 8 C.F.R.

§ 242.1(a) (1995). In Matter of L-, 20 I&N Dec. 553 (BIA 1992), we found

that when a deportable alien admitted under section 217 of the Act requests

asylum in the United States, the subsequent proceedings against the alien

must commence with an Order to Show Cause. See 8 C.F.R. § 242.1(d)2

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1 Federal regulations provide that an alien who has been admitted to the United States under

the provisions of section 217 of the Act who is determined by an immigration officer to be

deportable may be removed without referral of the alien to an Immigration Judge, unless the

respondent has applied for asylum. See 8 C.F.R. § 217.4(c) (1995). 2 We have also found, in Matter of H-, 20 I&N Dec. 611 (BIA 1992), that exclusion

proceedings against an applicant who has been refused admission under section 217 of the Act

and who has applied for asylum must commence with a Notice to Applicant for Admission

Detained for Hearing before Immigration Judge (Form I-122).
Subsequent to the Service’s filing of the Order to Show Cause with the Immigration Court, “[j]urisdiction vests, and proceedings before an Immigration

Judge commence.” See 8 C.F.R. § 3.14 (1995).

In the respondent’s case, the Service correctly issued the respondent an

Order to Show Cause in response to the respondent’s request for asylum.

See Matter of L-, supra. The respondent, now formally charged, remains in

custody awaiting a hearing on the merits of his asylum application. The

Immigration Judge found, notwithstanding his authority to conduct the

respondent’s impending deportation hearing, that the language set forth at

section 217 of the Act still limits the respondent’s right to contest any action

for deportation “other than to have an application for asylum heard.” We do

not read the statute so narrowly; rather, we find that the regulations clearly

allow for bond proceedings upon the Service’s issuance of the respondent’s

Order to Show Cause.

As we held in Matter of L-, supra, proceedings need not be commenced

with an Order to Show Cause for an alien admitted under the Visa Waiver

Pilot Program “other than such an alien who has applied for asylum in the

United States.” 8 C.F.R. § 242.1(a) (emphasis added). However, when an

alien has applied for asylum, regulations provide that the Visa Waiver Pilot

Program nonimmigrant “shall be brought into proceedings as otherwise provided in this part.” See 8 C.F.R. § 242.1(d) (emphasis added). Elsewhere in

8 C.F.R. § 242, regulations otherwise provide not only for the filing of an

Order to Show Cause, but also for the release of an alien from custody. See 8

C.F.R. § 242.2(d).

Specifically, 8 C.F.R. § 242.2(d) provides that after the Service’s issuance

of an Order to Show Cause, and at any time before a deportation order

becomes administratively final:

upon application by the respondent for release from custody . . . an Immigration Judge may

exercise the authority contained in section 242 of the Act to continue to detain a respondent

in custody, or to release a respondent from custody, and to determine whether a respondent

shall be released under bond, and the amount of the bond, if any.

Moreover, federal regulations at 8 C.F.R. § 242.2(d), as well as section

242 of the Act, not only address the charging document and the bond proceedings, but also set forth the provisions under which the Immigration Judge

must conduct the hearing, as well as various notice requirements and appeal

rights. We do not find that Congress ever intended for section 217 of the Act

to deny the respondent the opportunity to request a bond redetermination

hearing. Rather, the regulations specifically state that asylum applicants,

such as the respondent, shall be brought under proceedings consistent with

the provisions set forth in section 242 of the Act. See 8 C.F.R. § 242.1(d).

Accordingly, we find that the Immigration Judge has the authority to conduct the respondent’s bond redetermination hearing pursuant to section

242 of the Act and federal regulations.See 8 C.F.R. §§ 3.14, 3.19 (1995).

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Consequently, we will remand the record to the Immigration Court to allow

the respondent the opportunity to pursue such a request.

ORDER: The record is remanded to the Immigration Court for

further proceedings consistent with the foregoing opinion.

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