This new provision for informing aliens of the 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 66 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.

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

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 1976 until his retirement. 67 Bookford Testimony, Washington Hearing Transcript, p. 275.

6 The eighth amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." "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

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

"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).

72 Black's Law Dictionary 177 (rev. 4th ed. 1968).

73 Bail Reform Act of 1966, 18 U.S.C. §§3141-3151. 74 Id. at §3146(a).

75 8 U.S.C. §1252(a) (1976).

50,000

FIGURE 7.1

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

Apprehended
Expelled
Expelled.

without hearing

1945.

1946_

1947

1948_

1949_

1950_

1951_

1952_

1953_

1954_

1955_

1956_

1957_

1958

19592

1960

1961.

1962.

*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.

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:

77 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).

78 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.

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

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].81

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 system:83

There is no discernible pattern-Servicewide-to the setting of bond.

· 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.

70 Operations Instruction 242.6c.

so 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).

81 Austin Fragomen, professor of law, New York University and Brooklyn Schools of Law, testimony, New York Open Meeting Transcript, pp. 24546.

82 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).

Although "lip service" is given to the principle that bond is set to assure appearance, in reality it is set (or not set) for other purposes as well. [The report specified such "other purposes" as punishment for lying, attempting to elude detection, using false documentation, etc.]

There are few written standards against which bond recommendations should be measured.

Files do not generally contain sufficient information to justify the bond recommended (or the bond set or reduced at bond redetermination hearings).

Since most bond redetermination requests result in reduced bonds (most of the hearings attended resulted in bond reductions), the initial bond may be set at too high a figure.

Since comparatively few bond reduction requests are made, it follows that most persons detained are held in lieu of bonds that would probably be reduced if such requests were made.

There is scant use of detention without bond in cases where there is substantial evidence of an intent to flee.

To correct these inequities, the report urged that:84

A. In those cases in which a determination has been made to issue an order to show cause85 coupled with a warrant of arrest, a more thorough community tie investigation than is presently carried out should be considered.

B. An objective system for determining appropriate release recommendations should be designed and implemented.

C. A system that provides for the immediate presentment of a detained alien to a special inquiry officer (either an immigration judge or some type of non-Service magistrate) for initial bond determination and advice about various rights should be implemented.

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.

D. In those cases in which a respondent is detained longer than forty-eight (48) hours, an automatic bond redetermination process should be considered.

E. Experimental programs should be carefully designed and monitored to test the feasibility of reasonable alternative modes of release.

F. A temporary (spot check) system of data analysis should be implemented to determine the true effects of either the present bond practices or any experimental program conducted.

In general, the report found that the bail system was misused, not due to malicious intent, but rather from a lack of consistency and accountability. The lack of consistency and comparability in INS bail decisions stemmed in part from the lack of coordination between the prosecutorial and adjudicative functions of INS. The report found that the two groups worked at odds:

investigators recommend bonds higher than they think necessary because they "know" the judges will reduce them if a redetermination is requested. At the same time, judges will reduce bond based not so much on the individual merits of a particular case but because they "know" the law enforcement side of the Service asks for high bond anticipating that they will reduce it.86

Bail as utilized by INS is analogous to bail in the criminal sphere. To protect against unconstitutional deprivations of liberty that can occur from erroneous or improper bond determinations, the setting of bail by INS should, therefore, be administered as carefully as in criminal cases.

Right to Impartial Hearing

The right to a hearing is perhaps the most firmly established requirement of due process, but controversy has always raged as to what a hearing should entail. It is generally accepted that the right to a

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). 86 Bond Study, pp. 18-19.

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:

[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

* 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

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:

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

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,

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

as 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).

90 339 U.S. at 50 (1950).