Matter of Kwun
| Decision Date | 21 November 1969 |
| Docket Number | Interim Decision Number 2021,A-15997430 |
| Parties | MATTER OF KWUN In Bond Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
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 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 his 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 opposed the stay and refused to waive the 10-day period afforded by 8 CFR 103.5 within which to file a brief in opposition to the motion. Without ruling on the motion, the special inquiry officer on October 27, 1969 denied the stay. On the same day, respondent filed an appeal to this Board from the order denying a stay and requested oral argument on the appeal.
The Service concluded that the appeal did not automatically stay deportation under 8 CFR 3.6 and prepared to proceed with respondent's deportation. On October 28, 1969, we denied counsel's telephonic request for a stay of deportation. In a confirmatory order dated October 29, 1969, we concluded that the motion to reopen must be denied since neither the special inquiry officer nor this Board has power to rule on the constitutionality of an act of Congress. We therefore held that the special inquiry officer had properly denied the requested stay of deportation and we denied the stay application directed to us.
On October 29, 1969 counsel for respondent filed a petition for review under section 106(a) of the Act in the United States Court of Appeals for the Second Circuit. We are told that it challenges our order of October 29, 1969. Concluding that he was bound by the automatic stay of deportation afforded by section 106(a)(3) of the Act, the District Director held up respondent's scheduled deportation but determined that he should be continued in Service custody pending termination of the litigation.
When we received the record on respondent's appeal from the special inquiry officer's order denying a stay pending determination of the motion to reopen, we promptly denied the request for oral argument and summarily dismissed the appeal. In an order dated November 3, 1969, we pointed out that we had already determined 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,1 of the District Director's decision to continue respondent in custody pending termination of the review proceedings in the court of Appeals.
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 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); 8 CFR 242.2; 19 Fed. Reg. 2442 (July 20, 1954). The new regulation contained the identical language, quoted above, excluding appellate review when the Service notifies the alien that it is ready to execute the deportation order and takes him into custody for that purpose. That provision is now incorporated in 8 CFR 242.2(b).
In Matter of Guerra, Interim Decision No. 1914 (BIA 1968), we concluded that we lacked jurisdiction under that provision to review a District Director's bail determination where the alien was in Service custody for deportation. No review litigation was pending in that case. In Matter of Au, supra, we held we had jurisdiction because there was litigation pending and the statutory stay of deportation precluded deportation. We found that the alien was concededly a good bail risk who was being detained solely to exact his agreement to accelerated disposition of the litigation, which the Service considered purely dilatory. We concluded that such use of the detention power is impermissible and ordered the alien's release on bond.
Section 242.2(b) of the regulations was thereafter amended by regulations promulgated by the Commissioner, pursuant to Notice of Proposed Rule Making, 34 Fed. Reg. 5509 (March 21, 1969); 34 Fed. Reg. 7327 (May 6, 1969); 34 Fed. Reg. 8037 (May 22, 1969). Under the amended regulations, the appeal to this Board from the District Director's detention determination was eliminated. The application or request for release could be renewed, however, before a special inquiry officer and his decision was made appealable to this Board. Continued without change was the 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...
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