BEFORE THE BOARD
Discussion: The respondent herein, pursuant to the provisions of section 242.2 of Title 8, C.F.R., as amended July 20, 1954 ( 19 F.R. 4442), appeals from a determination by the District Director at New York dated August 2, 1954, denying him release on bond. The district director in transmitting the appeal to the Board raises a jurisdictional question of law. Counsel on the other hand seeks a reversal of the district director's decision denying bond.
Before proceeding with a discussion of the jurisdictional question of law referred to above, a brief summary of prior litigation relative to respondent's detention appears to be in order. Respondent is a Chinese seaman whose immigration status was adjusted through suspension of deportation in 1949, resulting in the creation of a record of lawful entry as of June 10, 1945. During November 1950, respondent sailed foreign as a member of the crew of a vessel of American registry. Upon his return during March 1951, he was excluded without a hearing before a board of special inquiry as an alien whose entry was deemed prejudicial for security reasons pursuant to the provisions of 8 C.F.R. 175.57. A writ of habeas corpus was thereupon sued out by respondent and litigation with respect thereto finally reached the Supreme Court ( 344 U.S. 590). The Supreme Court found respondent to be a lawful permanent resident of the United States and therefore protected by the due process clause of the Fifth Amendment. The court remanded the case for an administrative hearing in connection with respondent's application for admission to the United States as a returning resident alien previously lawfully admitted.
Respondent was accorded appropriate hearings in accordance with the Supreme Court's ruling. He was found to have been from about 1945 until September 1948 a member of the Communist Party of the United States. By an order dated June 30, 1953, this Board dismissed respondent's appeal from the aforestated decision of the special inquiry officer. After the excluding decision of the special inquiry officer but before the Board's order of June 30, 1953, respondent, on May 13, 1953, sued out a writ of habeas corpus in the United States District Court, Southern District of New York, alleging that his continuous detention at Ellis Island was arbitrary and illegal. An order entered by the court June 5, 1953, sustained the writ to the extent of directing respondent's enlargement on bond in the sum of $2,500 on condition that he report regularly each week to the Immigration Service. Respondent, in compliance with the conditions of the court's order providing for his enlargement, reported in person at Ellis Island, New York, once each week until July 23, 1953. Respondent, on June 14, 1954, having failed to report for approximately one year, was returned to custody and is now held at Ellis Island.
A writ of habeas corpus concerned with the respondent's present detention and denial of bail was argued in the United States District Court on August 3, 1954. The Government's answer to the writ was argued in the alternative. It was urged on the one hand that the writ does not lie inasmuch as the relator is detained as an excluded alien and therefore his application for bail is not subject to judicial review nor is respondent eligible therefore under section 242 (c) of the Immigration and Nationality Act as this provision of law relates to the apprehension and deportation of aliens and not to those who have been excluded. It was urged on the other hand that assuming, arguendo, the validity of relator's claim that he is entitled to judicial review of his application for bail under the aforestated provision of the Immigration and Nationality Act, his filing of a writ of habeas corpus was premature since he had failed to exhaust his administrative remedies under the regulations (8 C.F.R. 242.2) recently amended on July 20, 1954 ( 19 F.R. 4442), which permit an appeal to the Board of Immigration Appeals from the denial of administrative bail.
Counsel, in answer to the Government's contention that the relator had failed to exhaust his administrative remedies, urged the court to hold the writ of habeas corpus in abeyance in order that an appeal could be taken to this Board pursuant to 8 C.F.R. 242.2 and a ruling had thereon, thus obviating the necessity of suing out a new writ of habeas corpus. The court agreed with this suggestion of counsel whereupon an appeal was immediately taken.
The jurisdictional question before us is whether the provisions of section 242 of the Immigration and Nationality Act and the regulations promulgated thereunder (8 C.F.R. 242.2) are applicable to respondent, an alien who has been ordered excluded and deported from the United States. The district director urges that the procedure concerning appellate jurisdiction set forth in 8 C.F.R. 242.2 relates solely to deportation proceedings instituted pursuant to section 242 of the Immigration and Nationality Act and since respondent's detention results from an order of exclusion, this Board does not have jurisdiction in the instant case.
Jurisdiction to consider an appeal from an adverse determination by designated officers of the Immigration and Naturalization Service relating to bond, parole, or detention of an alien as provided in section 242.2 of Title 8, C.F.R., is conferred upon this Board by section 6.1 (b) (7) of the same title. Section 242.2 ( supra), as amended July 20, 1954 ( 19 F.R. 4442), authorizes, inter alia, designated officers of the Immigration and Naturalization Service to detain or release on bond or parole, aliens against whom proceedings under section 242 of the Immigration and Nationality Act of 1952 are pending. Under the regulations (8 C.F.R. 242.2) the alien may appeal in any case in which release from custody or on parole is denied with this exception: — "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."
Section 6.1 (b) (7) of Title 8, C.F.R., reads as follows:
Appeal shall lie to the Board of Immigration Appeals from the following: * * *
(7) Determinations of district directors, deputy district directors, or officers in charge relating to bond, parole, or detention of an alien as provided in section 242.2 of this chapter.
The statutory provision conferring the authority referred to in section 242.2 of the regulations, ( supra), issection 242 of the Immigration and Nationality Act which according to the title thereof is concerned with the "apprehension and deportation of aliens." That portion of section 242 (a) pertinent here provides: — "Any such alien taken into custody may in the discretion of the Attorney General and pending such final determination of deportability, (1) be continued in custody; or (2) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (3) be released on conditional parole." " Such alien" as that term is used above refers to any alien held in custody pursuant to a warrant of arrest issued in deportation proceedings, the authority for which is found in the first sentence of section 242 (a) and reads as follows: — "Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody." Subsection (c) of the same section provides, inter alia, "When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States, during which period, at the Attorney General's discretion, the alien may be detained, released on bond in an amount and containing such conditions as the Attorney General may prescribe, or released on such other conditions as the Attorney General may prescribe."
It is clear from the statutory provisions cited above that section 242 of the Immigration and Nationality Act is concerned solely with aliens apprehended in the United States and held for deportation proceedings under a warrant of arrest issued pursuant to subsection (a) thereof. The authority to continue or detain aliens in, or release them from custody, provided by this section relates solely to an alien apprehended in deportation proceedings. The appeal to this Board provided in section 242.2 of Title 8, C.F.R., is from an adverse determination of designated officers of the Immigration and Naturalization Service who have exercised the statutory authority contained in section 242 of the Immigration and Nationality Act. Since this authority relates solely to aliens apprehended in deportation proceedings, it has no application to an alien detained in an exclusion proceeding. Provision for the release of an excluded alien is found in section 212(d) (5) of the Immigration and Nationality Act, and the regulation which implements this provision of the statute ( 8 C.F.R. 212.9) does not provide for an appeal to this Board by an excluded alien who has been denied parole by a designated officer having administrative jurisdiction of the port where the alien seeks to enter. Accordingly, we find that this Board does not have jurisdiction to consider the appeal before us.
Section 212 (d) (5), Immigration and Nationality Act, reads as follows:
The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States * * *.
We reach this conclusion fully cognizant of the Supreme Court's ruling with respect to this particular alien that "for purposes of his constitutional right to due process, we assimilate petitioner's status to that of an alien continuously residing and physically present in the United States" ( Kwong Hai Chew v. Colding, 344 U.S. 590, 596; 97 L. Ed. 576, 583, February 9, 1953). Procedural due process under the Fifth Amendment in this instance was held, under the circumstances presented, to be the right to an administrative hearing. A hearing has been granted respondent and he has been found subject to exclusion. We find no authority to the effect that due process under the Fifth Amendment bestows any constitutional right to release on bond. The assimilation referred to in the Supreme Court's ruling does not transpose this case into something other than an exclusion proceeding. The right to a hearing in an exclusion proceeding does not confer jurisdiction upon this Board to consider an appeal under statutory authority and regulations concerned solely with deportation proceedings.
By way of comment, we note that respondent's continued detention results from an action instituted by him and now pending in the United States District Court for the District of Columbia, wherein he seeks a review of the final order directing his exclusion and to enjoin its execution. A communication from the District Director at New York relates that respondent's deportation can be effective upon a vessel departing from San Francisco September 18, 1954, and that no difficulty would be entailed in securing a transit visa. Respondent's deportation, however, has been stayed temporarily by a restraining order of the United States District Court for the District of Columbia.
Accordingly, we find for the reasons aforestated that section 242 of the Immigration and Nationality Act and the regulations promulgated thereunder (8 C.F.R. 242.2) do not confer jurisdiction upon this Board to review the determination of an officer of the Immigration Service denying bail to an alien who has been ordered excluded and who is detained awaiting deportation. An appropriate order will be entered.
Order: It is ordered that the appeal be and the same is hereby dismissed.