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tion or exclusion proceedings before this Service.64

judgment of the court.”72 Bail as administered by INS is analogous to bail in criminal cases and should provide the safeguards instituted in the criminal law arena through the Bail Reform Act.73

The Bail Reform Act provides:

65

Significantly, even this measure was adopted by INS only after lawsuits were instituted challenging the unavailability of legal counsel in the deportation process.

This new provision for informing aliens cfine availability of legal services, however, does nothing to eliminate the greatest difficulties in the system. By its terms, the regulation still applies only to those who are placed under formal deportation proceedings, a token number of those apprehended. When asked how many people this new regulation would affect, Chief Immigration Judge Herman Bookford replied, "Well, the last figures that I saw were that 800,000 people were given voluntary departure without hearing. We had 60,000 hearings last year.”67 The urgency for meaningful reform in the due process rights of aliens is highlighted by figure 7.1, which illustrates the comparatively small percentage of people who will benefit from the new regulation.

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Right to Bail

Today, with the eighth amendment to the Constitution creating an implicit right to bail, 68 and various statutes creating an explicit right to bail,69 this right is not often subject to dispute.70 Questions concerning bail have generally revolved around its administration and standards for granting bail, with the criminal justice system struggling to devise an equitable and just answer to such questions, as seen in the Bail Reform Act of 1966. The quasi-criminal bail system administered under the Immigration and Nationality Act (INA),with no comparable reform, lags behind the criminal justice system.

Bail in criminal cases is meant “to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and

Any. . .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. But such bond or parole, whether heretofore or hereafter authorized, may be revoked at any time by the Attorney General, in his discretion, and the alien may be returned to custody under the warrant which initiated the proceedings against him and detained until final determination of his deportability. 75

64 44 Fed. Reg. 4651 (1979). 65 Munoz v. Bell, No. CV-77-3765-WP, District Court, Central District of California. That case was later dismissed with the consent of both parties. Munoz v. Bell, No. CV-77-3765-WP (C.D. Cal. Oct. 4, 1979) (order entered). 66 Mr. Bookford retired from the Service in September 1979. He was the Chief Immigration Judge from August 19 until his retirement. 67 Bookford Testimony, Washington Hearing Transcript, p. 275. 68 The eighth amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." 6* See, for example, the Bail Reform Act of 1966, 18 U.S.C. $$3141-3151 (1976), 70 This right in immigration cases was challenged in one notable exception, Carlson v. Landon, 342 U.S. 524 (1951). This case arose out of the general

“Red scare" of the 1950s. It involved alleged members of the Communist Party who were also aliens. These people were arrested without warrants and held without bond. They appealed the refusal to set bond. The Supreme Court held that "the Attorney General may, in his discretion, hold in custody without bail, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, when there is reasonable cause to believe that their release on bail would endanger the safety and welfare of the United States." 71 8 U.S.C. $1252(a) (1976). 73 Black's Law Dictionary 177 (rev. 4th ed. 1968). 13 Bail Reform Act of 1966, 18 U.S.C. $$3141-3151. 76 Id. at $3146(a). 75 8 U.S.C. $1252(a) (1976).

FIGURE 7.1 Persons Apprehended, Expelled, and Expelled Without a Hearing, 1945-76

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1,000,000

500,000

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50,000

1945

1946.

1947–

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1956

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1958.

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1962. 1963.

1964

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1967.

1968

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1970_ 1971 1972_ 1973_

1974

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1976_

*Note: The recordkeeping on apprehensions changed in 1960. Figures before 1960 represent the total actually apprehended. Since 1960 figures include those located. Source: U.S., Department of Justice, Immigration and Naturalization Service, 1976 Annual Report, p. 126, extracted from Table 23.

It was also alleged by Austin Fragomen that bail was administered in a discriminatory fashion:

This exercise of discretion is subject to a very limited review in the Federal courts. The INA provides that the court, in a habeas corpus proceeding, can only assess whether “the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability."76 Under this standard, a determination regarding bail will “be overturned only on a showing of clear abuse."77

Under this section, then, an alien may or may not be granted bail solely through the discretion of the Attorney General and may be returned to custody solely through the Attorney General's discretion. The only statutory check on the Attorney General's discretion is the nebulous "reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability.” The rules promulgated in the Code of Federal Regulations78 provide few additional safeguards.

The INS Operations Instructions give the grounds justifying detention, namely:

If an Englishman is arrested by the Immigration Service, you can almost be assured that he will be released on his own recognizance. If the individual arrested were Asian or were Hispanic, there would be a minimum of a $2,500 bond requested notwithstanding the fact that in most cases the European person can more easily post a higher bond, and the bond that's required of an Asian or Hispanic is totally unrelated to his ability to pay. . . . They just routinely require standard amounts for persons of certain ethnic origin with total disregard of the situation (emphasis added].61

81

[w]hen any available information indicates that an alien's freedom at large would clearly represent a present danger to public safety or security, or when the alien's lack of funds or fixed address supports a finding that he is likely to abscond. 79

The INS, however, disputed the testimony of Professor Fragomen, former staff counsel to the Immigration, Citizenship, and International Law Subcommittee of the House Judiciary Committee, and denied “that bail is administered by the INS in a discriminatory fashion and that the Service, ...just routinely require(s) standard amounts for persons of certain ethnic backgrounds with total disregard of the situation'.”82

A study recently commissioned by INS provides some support for criticism that the INS bail process is not applied in a uniform manner. This report compared the bond-setting practices of INS with those of the criminal courts. Starting from the premise that the function of bail should be solely to assure the appearance of the accused at a proceeding, the report identified certain inequities in the INS

The lack of guidelines for release and conditions of release leave room for arbitrary and unequal treatment. Allegations have been made that the lack of guidelines does lead to capricious action on bail and parole requests. One witness commented:

system:83

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The immigrant is treated as a common criminal; he is fingerprinted, photographed, and jailed. Usually he is either deported or given a high bond. The bond is inconsistent. People with exactly identical cases are given different amounts of bonds. . . .80

There are few statistics-present or pastthat demonstrate, even on a "hunch" basis, that one amount of bond is more or less successful than another.

76 Id.
7? Carlson v. Landon, 342 U.S. 524, 540 (1952). See also Yaris v. Esperdy,
202 F.2d 109, 112 (2d Cir. 1953); Hyndman v. Holton, 205 F.2d 228, 230
(7th Cir. 1953).
7* 8 C.F.R. $242.2 (1978) provides that the alien “shall also be informed
whether he is to be continued in custody, or, if release from custody has
been authorized, of the amount and conditions of the bond or the
conditions under which he may be released.” The procedure for review is
also outlined.
8 C.F.R. $287.3 (1978) applies to those "aliens" arrested without a warrant
and provides that the "alien" shall be advised "that a decision will be made
within 24 hours or less as to whether he will be continued in custody or
released on bond or recognizance." After this stage, if a decision has been
made to institute proceedings, 8 C.F.R. $242 applies.

78 Operations Instruction 242.6c.
80 Douglas Franklin, National Alliance on Immigration Laws, testimony
before the New York State Advisory Committee to the U.S. Commission
on Civil Rights, open meeting, New York City, Feb. 16-17, 1978, p. 55
(hereafter cited as New York Open Meeting Transcript).
$ Austin Fragomen, professor of law, New York University and Brooklyn
Schools of Law, testimony, New York Open Meeting Transcript, pp. 245-

46.

42 Castillo Letter.
83 INS, “A Comparison of the Bond-Setting Practices of the Immigration
and Naturalization Service with that of the Criminal Courts" (Bruce D.
Beaudin, consultant) (July 26, 1978), pp. 20-31 (hereafter cited as Bond
Study).

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* Ibid., p. 32.
85 An order to show cause issued and served on the detainee by the INS is
required for the commencement of every deportation proceeding:

The order to show cause will contain a statement of the nature of the
proceeding, the legal authority under which the proceeding is
conducted, a concise statement of factual allegations informing the
respondent of the act or conduct alleged to be in violation of the law,
and a designation of the charges against the respondent and of the
statutory provisions alleged to have been violated. The order will
require the respondent to show cause why he should not be deported.

The order will call upon the respondent to appear before an
immigration judge for a hearing at a time and place which may be
stated in the order or may be later specificed. Respondent shall be
notified of the time and place of the hearing not less than 7 days before
the hearing date except that where the issuing officer, in his discretion,
believes that the public interest, safety, or security so requires, he may

schedule the hearing on shorter notice.
8 C.F.R. $242.1(b) (1980).
66 Bond Study, pp. 18-19.

Further development of judicial doctrine concerning aliens' rights to a hearing resulted in a requirement that such hearings be held before an impartial judge. In 1950 the Supreme Court held in Wong Yang Sung:

hearing is principally the right to be heard by an impartial person or judge.

Prior to 1952 the Immigration and Nationality Act did not expressly require that an alien be given a hearing before deportation from the United States. 87 The Supreme Court, however, held that the right to a hearing was implicitly required by the deportation statute because "the constitutional requirement of procedural due process of law derives from the same source as Congress' power to legislate and, where applicable, permeates every valid enactment of that body.”88 Other Supreme Court cases recognized the severe consequences of deportation and acknowledged that the right to a hearing accrues to persons who are accused of violating the immigration laws. As the Court stated in the Japanese Immigration Case:

When the Constitution requires a hearing, it requires a fair one, one before a tribunal which

a meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself (emphasis added].90

Although the definition of "currently prevailing standards of impartiality” may vary from generation to generation, it is clear that an impartial hearing is mandated by the Constitution. In deciding Wong Yang Sung, the Court considered a 1937 report by the President's Committee on Administrative Management. The Committee found that agencies charged with law enforcement functions as well as judicial responsibilities could not conduct sufficiently impartial hearings to protect the rights of individuals who appeared before them:

[T]his Court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in “due process of law” as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends—not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore, it is not

competent. . .arbitrarily to cause an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized (emphasis added).89

the independent commission is obliged to carry on judicial functions under conditions which threaten the impartial performance of that judicial work. The discretionary work of the administrator is merged with that of the judge. Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible.

Furthermore, the same men are obliged to serve both as prosecutors and as judges. This not only undermines judicial fairness; it weakens public confidence in that fairness. Commission decisions affecting private rights and conduct lie under the suspicion of being rationalizations of the preliminary findings which the commission,

87 Immigration Act of 1917, 39 Stat. 874 $19(a), as amended (repealed 1952). Section 19(a) provided in part:

any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States. . .shall, upon the warrant of the Attorney General, be taken into custody and deported. . . In every case where any person is ordered deported from the United States under the provisions of this

Act, or of any law or treaty, the decision of the Attorney General shall

be final. .
85 Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950).

189 U.S. 86, 100-01 (1902). See also Bridges v. Wixon, 326 U.S. 135, 160-
162 (1945) (Murphy, J., concurring).
* 339 U.S. at 50 (1950).

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