Interim Decision #3139 

MATTER OF SANCHEZ 

In Bond Proceedings Pursuant to 8 C.F.R. § 242.2(d) 

A-19361669 

Decided by Board September 21, 1990 

(1) The immigration judge erred in holding that he had jurisdiction to conduct a hearing 

in bond proceedings for a criminal alien who was still incarcerated in a Maryland 

State penal institution. 

(2) The Immigration and Naturalization Service did not have actual physical custody of 

the criminal alien, and therefore there was no authority for the commencement of 

bond proceedings before an immigration judge under the regulations. 

(3) The filing of a Service detainer with the Maryland penal authorities does not 

constitute actual physical custody. 

(4) Section 242(i) of the Immigration and Nationality Act, 8 U.S.C. § 1252(i) (1988), 

which indicates that the Attorney General should begin any deportation proceeding as 

expeditiously as possible after the date of the conviction, is not a vehicle for 

incarcerated aliens to demand immediate deportation hearings. 

ON BEHALF OF RESPONDENT: 

M. Kiel Hackley, Esquire 

Noto, Oswald, Hoffmeier, Hackley, 

Eisman, and Miller 

Washington Harbor 

3050 K Street, N.W., Suite 310 

Washington, D.C. 20007 

ON BEHALF OF SERVICE: 

Elizabeth S. Dolan 

General Attorney 

BY: Khan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated March 1, 1990, an immigration judge ordered 

the respondent, who was being held in custody without bond, to be 

released on a bond of $5,000. 1In a subsequent decision dated March 8, 

1990, the immigration judge vacated his prior order to set bond at 

$5,000 and requested further briefing on the respondent's eligibility 

for bond.2The Immigration and Naturalization Service, however, has 

tThe immigration judge found that the Immigration and Naturalization Service's 

refusal to set bond was the equivalent of a custody determination of no bond. 

2The immigration judge's March 8, 1990, order vacated his original bond order 

following the decision of the Board of Immigration Appeals in Matter of Barrett, 20 I&N 

Dec. 171 (BIA 1990), which held that a state conviction could qualify as an aggravated 

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Interim Decision #3139 

appealed from the immigration judge's original determination that he 

had jurisdiction to hold a custody hearing. The Service's appeal will be 

sustained. 

The record indicates that the respondent is a 25-year-old married 

native and citizen of Argentina, who was admitted to the United States 

as a lawful permanent resident on December 7, 1978. On September 

18, 1989, an Order to Show Cause and Notice of Hearing (Form 1-221) 

was issued in which it is alleged that en August 11, 1989, the 

respondent was convicted of unlawful distribution of cocaine hydrochloride, and, therefore, that he is deportable under section 241(a)(11) 

of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) 

(1988), on the basis of a controlled substance conviction, and under 

section 241(a)(4)(3) of the Act, on the basis of an aggravated felony 

conviction. The respondent was sentenced to 8 years in prison, but 4 

years were suspended. The respondent was also ordered to complete 36 

months of probation following his release from incarceration. On 

September 12, 1989, while the respondent was in state custody, the 

Service placed an immigration detainer on the respondent. 

On November 1, 1989, the respondent filed the Order to Show 

Cause with the Office of the Immigration Judge. The respondent also 

filed a motion which asked the immigration judge to require the 

Service to set bond and to require the Service to lift the detainer 

lodged with the prison. 

In his decision of March 1, 1990, the immigration judge concluded 

that he had jurisdiction to set bond. The immigration judge initially 

found that the immigration court had jurisdiction over the respondent's deportation proceedings because the proceedings had been 

commenced through the filing of an Order to Show Cause. The 

immigration judge then noted that the immigration court had authority to consider the respondent's custody and bond pursuant to 8 C.F.R. 

§§ 3.18 and 242.2(c)(2) and (d) (1990). In support of his findings 

concerning custody and bond, the immigration judge stated that the 

respondent was in the "technical" custody of the Service, and that the 

Service's refusal to set bond was the equivalent of a decision that no 

bond was warranted. The immigration judge concluded, however, that 

he did not have authority to require the Service to remove the 

detainer. In addition, he concluded that he did not have jurisdiction to 

compel a state authority to allow a prisoner to participate in a work 

release program or other detention facility program. 

felony and preclude an alien's release from Service custody on bond. The immigration 

judge therefore requested briefs to determine whether the respondent's state conviction 

could be considered an aggravated felony. We are unable to review any subsequent bond 

determination by the immigration judge because none is included in the record. 

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On appeal, the Service contends that the immigration judge erred in 

holding that he had jurisdiction to conduct a bond hearing for a 

criminal alien who was still incarcerated in a state penal institution. In 

support of this position, the Service argues that the immigration judge 

erred in holding that the Service assumes "technical" custody over the 

respondent through issuance of an immigration detainer and an Order 

to Show Cause. The Service also argues that the immigration judge 

erred in holding that the Service's refusal to set a bond for the 

respondent was the equivalent of a bond determination under 8 C.F.R. 

§ 242.2(c)(2) (1990). 

Jurisdiction vests and proceedings commence before an immigration judge when a charging document is filed with the Office of the 

Immigration Judge except for bond proceedings as provided in 8 

C.F.R. §§ 3.18 and 242.2(d). 8 C.F.R. § 3.14(a) (1990). 3Since the 

regulations do not specify who can file a charging document with the 

Office of the Immigration Judge, the respondent as well as the Service 

can commence deportation proceedings by filing the Order to Show 

Cause. The effect of such filing is to vest the Office of the Immigration 

Judge with jurisdiction over the case. The regulation at 8 C.F.R. 

§ 3.14(a) (1990), however, does not apply to bond proceedings, which 

are expressly excluded from that provision. Jurisdiction in bond 

proceedings is controlled by 8 C.F.R. §g 3.18 and 242.2(d) (1990). The 

regulation at 8 C.F.R. § 3.18(a) (1990) indicates that the immigration 

judge may review custody and bond determinations made by the 

Service pursuant to 8 C.F.R. § 242 (1990). Therefore, the Service 

would be required to make a custody and a bond determination under 

8 C.F.R. § 242.2(c) (1990) before an immigration judge would have 

jurisdiction to conduct a custody hearing. 

To make a proper custody determination under 8 C.F.R. § 242.2(c) 

(1990), the Service must first have custody of the respondent. In the 

present case, the immigration judge concluded that the Service 

"assumed 'technical' custody of the respondent through its issuance of 

a detainer and Order to Show Cause." We find this equation of a 

Service detainer with Service custody to be misplaced. A detainer is 

merely an administrative mechanism to assure that a person subject to 

confinement will not be released from custody until the party 

requesting the detainer has an opportunity to act. See Moody v. 

Daggett, 429 U.S. 78 (1976). Although the immigration judge was 

correct in noting that a detainer has been deemed to be "technical" 

custody, it clearly does not constitute actual physical custody. See 

Chung Young Chew v. Boyd, 309 F.2d 857 (9th Cir. 1962); Slavik v. 

Miller, 89 F. Supp. 575 (W.D. Pa.), afrd, 184 F.2d 575 (3d Cir. 1950), 

3The regulation at 8 C.F.R. § 3.14(a) (1990) incorrectly cites 8 C.F.R. § 242.2(b). 

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Interim Decision #3139 

cert. dented, 340 U.S. 955 (1951); Matter of Lehder, 15 I&N Dec. 159 

(BIA 1975). 

In the present case, the respondent was in the actual physical 

custody of the State of Maryland. We note that the Service can neither_ 

compel the Maryland authorities to make the respondent available for 

immigration proceedings, nor, as a practical matter, exert its authority 

over the respondent as long as he is confined in a state facility. Since 

there is no dual or joint custody, we find it inappropriate to consider 

the Service's detainer as custody under 8 C.F.R. § 242.2(c) (1990). See 

Young v. United States, 337 F.2d 753 (5th Cir. 1964); cf. Gaddy v. 

Michael, 519 F.2d 669 (4th Cir. 1975); Small v. Britton, 500 F.2d 299 

(10th Cir. 1974). Consequently, inasmuch as the respondent is not yet 

in the custody of the Service, we conclude that the provisions of 8 

C.F.R. § 242.2(d) (1990) are not yet applicable to this case. See Matter 

of Lehder, supra:* 

We note that the immigration judge's decision attempted to 

distinguish Matter of Lehder, supra, from the present case based on 

two regulatory changes made subsequent to that decision. First, the 

immigration judge relied on the regulation at 8 C.F.R. § 3.14(a) (1990) 

which, as previously noted, does not trigger the commencement of 

bond proceedings. Second, the immigration judge also relied on 

section 242(i) of the Act, 8 U.S.C. § 1252(i) (1988), which indicates 

that the Attorney General should "begin any deportation proceeding 

as expeditiously as possible after the date of the conviction." The 

statute and its legislative history reveal that it was intended more as a 

directive to the Service to address the balance of state versus federal 

responsibility for incarcerated aliens subject to deportation, rather 

than as a vehicle for incarcerated aliens to demand immediate 

deportation hearings. Mohammed v. Sullivan, 866 F.2d 258 (8th Cir. 

1989); Campillo v. Sullivan, 853 F.2d 593 (8th Cir. 1988); Cabezas v. 

Scott, 717 F. Sum. 696 (D. Ariz. 1989). This provision, therefore, does 

not compel the immigration judge to conduct a hearing. 

Accordingly, the following order will be entered. 

ORDER: The appeal of the Immigration and Naturalization 

Service is sustained and the immigration judge's order is vacated for 

lack of jurisdiction. 

4 1n light of our findings, we find it unnecessary to determine whether the immigration 

judge erred in holding that the Service's refusal to set a bond for the respondent was the 

equivalent of a bond determination. 

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