In re D-J-, Respondent
U.S. Department of Justice Office of the Attorney General
Decided April 17, 2003
23 I&N Dec. 572 (A.G. 2003)
Interim Decision #3488
(2) Neither
(3) In determining whether to release on bond undocumented migrants who arrive in the United States by sea seeking to evade inspection, it is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations and the release of undocumented alien migrants into the United States without adequate screening.
(4) In bond proceedings involving aliens seeking to enter the United States illegally, where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, Immigration Judges and the Board of Immigration Appeals shall consider such interests.
(5) Considering national security grounds applicable to a category of aliens in denying an unadmitted alien‘s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under
(6) The denial of the respondent‘s release on bond does not violate international law.
(7) Release of the respondent on bond is unwarranted due to considerations of sound immigration policy and national security that would be undercut by the release of the respondent and other similarly situated undocumented alien migrants who unlawfully crossed the borders of the United States on October 29, 2002; further, the respondent failed to demonstrate adequately that he does not present a risk of flight if released and should be denied bond on that basis as well.
IN BOND PROCEEDINGS
The respondent is an undocumented alien from Haiti who was taken into custody and detained by the Immigration and Naturalization Service (“INS“) on October 29, 2002, while attempting to evade lawful immigration procedures and enter the United States illegally. He arrived aboard a vessel that sailed into Biscayne Bay, Florida, on that date, carrying 216 undocumented aliens from Haiti and the Dominican Republic. He and other passengers on the vessel were apprehended ashore after the vessel sought to
On November 6, 2002, an Immigration Judge (“IJ“) granted respondent‘s application for release on bond (set at $2,500) over the objections of the INS. The INS argued, inter alia, that the release of respondent, and of other members of the undocumented migrant group of October 29, would stimulate further surges of such illegal migration by sea and threaten important national security interests. The INS then appealed the IJ‘s decision to the Board of Immigration Appeals (“BIA“). The BIA dismissed the appeal, concluding, inter alia, that the broad national interests invoked by INS were not appropriate considerations for the IJ or the BIA in making the bond determination, “[a]bsent contrary direction from the Attorney General.” Decision of the Board of Immigration Appeals, In re D-J-, at 2 (March 13, 2003) (“BIA Dec.“). Exercising authority transferred to the Department of Homeland Security (“DHS“) by the
On February 12, 2003, the IJ denied respondent‘s application for asylum. His appeal of that decision is pending before the BIA.
Although authority to enforce and administer the INA and other laws related to the immigration and naturalization of aliens has recently been transferred to the Secretary of Homeland Security by the HSA, the Attorney General retains his authority to make controlling determinations with respect
Pursuant to the authority and discretion vested in me under the provisions of
My review of the BIA‘s decision in this case is de novo; it is not confined to reviewing the decisions of the BIA or the IJ for legal or factual error. See Deportation Proceedings of Joseph Patrick Thomas Doherty, 12 Op. O.L.C. 1, 4 (1988) (“[W]hen the Attorney General reviews a case pursuant to
I now turn to the question of whether respondent should have been detained or released on bond under the authority of
II.
A.
The law governing the detention or release of aliens such as respondent (i.e., aliens arrested and detained pending a decision on removal) is set forth in
As recognized by the Supreme Court,
Further discretionary authority for the release on bond of aliens such as respondent is found in subpart A, section 236.1 of the INS regulations governing “Detention of Aliens Prior to Order of Removal.” See
Any officer authorized to issue a warrant of arrest may, in the officer‘s discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.
Id. (emphasis added). This provision gives the DHS discretionary authority to release a covered alien on bond if, and only if, the alien makes a satisfactory demonstration with respect to the stated criteria. Like
B.
I will now briefly summarize the pertinent facts and contentions of the parties indicated in the record.
As noted above, respondent arrived off the shores of Florida in an overloaded vessel with 216 undocumented aliens from Haiti and the Dominican Republic on October 29, 2002. After the vessel sought to evade the orders and interdiction efforts of a U.S. Coast Guard (“USCG“) vessel, some of the alien passengers jumped from the vessel and swam ashore. After the migrant vessel ran aground, the remaining passengers disembarked and, despite the order of USCG officers to stop, ran ashore and fled from law enforcement officers before they were apprehended. See INS Brief, Exh. A (Declaration of Captain Mark J. Kerski, USCG) (“Kerski Declaration“). I find nothing in the record showing that respondent was not among the alien
The respondent offered limited evidence and information in the proceedings below in support of his claims that he did not present a danger to the community, a risk of flight, or a threat to national security. Respondent testified that he has not been arrested or convicted of a crime; and that, if released, he would live with an uncle residing in New York, New York, who would provide him with food, shelter, and transportation while he applied for asylum. Memorandum Decision of the Immigration Judge, In re D-J-, at 2 (Dec. 12, 2002) (“IJ Dec.“).
Respondent‘s brief before the BIA asserts that he was “willingly taken into INS custody.” Respondent‘s Brief in Support of the Immigration Judge‘s Custody Determination at 3 (“Respondent‘s Brief“). That assertion, however, does not address whether the respondent was among the migrants who sought to evade USCG and other law enforcement officers after coming ashore, as indicated in the USCG‘s Kerski Declaration. Respondent‘s brief further asserts that, because he does not speak or understand English, he could not be expected to obey any orders from English-speaking law enforcement officers at the time he came ashore. That assertion, however, does not address the likelihood, indicated by the content of the Kerski Declaration, that the circumstances in which those orders were issued were such that their meaning would have been clear in context, without regard to the particular words uttered by the officers. See INS Brief, Exh. A, ¶¶ 4-6.
In opposing respondent‘s contentions, the INS submitted declarations from officers of the Coast Guard, the Department of State, and the Department of Defense (“DOD“) as exhibits before the IJ and the BIA.5 INS maintains that these declarations show that there are strong concerns of national security requiring the continued detention of the respondent and similarly situated undocumented migrants pending removal proceedings. Two general areas of concern are implicated. First, there is a concern that the release of aliens such as respondent and the other October 29 migrants would tend to encourage further surges of mass migration from Haiti by sea, with attendant strains on national and homeland security resources. Such mass migrations would also place the lives of the aliens at risk. Second, in light of the terrorist attacks of September 11, 2001, there is increased necessity in preventing undocumented aliens from entering the country without the screening of the immigration inspections process.
The disposition of those detained in the October 29 arrival will spur further migration if they are released into the U.S. Such treatment would create a perception in Haiti of an easing in U.S. policy with respect to admission of migrants. For this reason, the Department of State strongly recommends that the 216 migrants (207 Haitians, 9 Dominicans) from the boat which reached Key Biscayne on October 29 be detained while they undergo processing. The migrants should be detained unless and until they demonstrate a well-founded fear of persecution. Those who cannot do so should continue to be held, absent a compelling humanitarian reason for release, until they can be expeditiously repatriated.
INS Brief, Exh. B (State Department Memorandum). The State Department memorandum sets forth extensive and detailed information documenting the relationship between perceptions in Haiti of successful U.S. entry by seagoing migrants and the likelihood of further mass migrations. Id.
The declarations submitted from the Coast Guard (see supra n.6) and the Defense Department express corroborating statements regarding this concern. The Coast Guard states that “[a]necdotal reporting and operational experience strongly suggests that detaining and swiftly repatriating those who illegally and unsafely attempt to enter the United States by sea is a significant deterrent to surges in illegal immigration and mass migration.” INS Brief, Exh. C, ¶ 9 (Declaration of Captain Kenneth A. Ward, USCG). Similarly, the Department of Defense declaration states that “[a]ctual or even perceived changes in U.S. immigration policy can trigger mass migration events by encouraging other potential illegal migrants.” See INS Brief, Exh. F, ¶ 5 (Declaration of Joseph J. Collins, Deputy Assistant Secretary of Defense for Stability Operations).
The INS submissions also outline an additional national security implication of encouraging future mass migrations by sea from Haiti. The Coast Guard declaration asserts that continued mass migrations from Haiti have “heavily taxed Coast Guard capacity and capabilities,” while “reducing
The declarations submitted by INS also substantiate a national security concern raised by the prospect of undocumented aliens from Haiti being released within the United States without adequate verification of their background, associations, and objectives. Thus, the State Department declaration asserts that it has “noticed an increase in third country nations (Pakistanis, Palestinians, etc.) using Haiti as a staging point for attempted migration to the United States. This increases the national security interest in curbing use of this migration route.” INS Brief, Exh. B, ¶ 11. Relatedly, the Coast Guard‘s supplemental declaration asserts that the boatloads of interdicted Haitians have included persons previously deported for drug trafficking and subject to outstanding felony warrants. INS Brief, Exh. E, ¶ 4 (Supplemental Declaration of Captain Kenneth A. Ward, USCG). The Coast Guard further asserts that “because maritime migrants are typically undocumented and carry little or no identification, it is often difficult to ascertain the identity and background of interdicted persons, particularly in large groups, which presents potential threats to officer safety, as well as national security.” Id.
III.
Having considered the record and the briefs of the parties, and exercising my authority under
I conclude that releasing respondent, or similarly situated undocumented seagoing migrants, on bond would give rise to adverse consequences for national security and sound immigration policy. As demonstrated by the declarations of the concerned national security agencies submitted by INS, there is a substantial prospect that the release of such aliens into the United States would come to the attention of others in Haiti and encourage future surges in illegal migration by sea. Encouraging such unlawful mass migrations is inconsistent with sound immigration policy and important national security interests. As substantiated by the government declarations, surges in such illegal migration by sea injure national security by diverting valuable Coast Guard and DOD resources from counterterrorism and homeland security responsibilities. Such national security considerations clearly constitute a “reasonable foundation” for the exercise of my discretion to deny release on bond under
I further conclude that the release on bond of undocumented seagoing migrant aliens from Haiti without adequate background screening or investigation presents a risk to national security that provides additional grounds for denying respondent‘s release on bond. This consideration is fortified by the State Department‘s assertion that it has observed an increase in aliens from countries such as Pakistan using Haiti as a staging point for migration to the United States. Under the current circumstances of a declared National Emergency, the Government‘s capacity to promptly undertake an exhaustive factual investigation concerning the individual status of hundreds of undocumented aliens is sharply limited and strained to the limit. Under these circumstances, it is reasonable to make a determination that aliens arriving under the circumstances presented by the October 29 influx should be detained rather than released on bond. There is substantial risk that granting release on bond to such large groups of undocumented aliens may include persons who present a threat to the national security, as well as a
I note that the BIA has acknowledged the seriousness of INS‘s arguments that the detention or release of these aliens implicates important national security interests. See BIA Dec. at 2. The BIA determined, however, that such considerations fall “outside the scope of Immigration Judge bond proceedings as such proceedings are currently constituted,” except where individual considerations show that the respondent is not likely to appear or presents a danger to the community. The BIA then stated: “Absent contrary direction from the Attorney General, we therefore agree with the Immigration Judge‘s focus on the respondent‘s individual likelihood to appear and individual danger to the community.” Id. This opinion provides the BIA and Immigration Judges with the “contrary direction” to which the BIA referred. In future proceedings involving similarly situated aliens, this opinion constitutes binding precedent, requiring the BIA and IJs to apply the standards set forth herein, including consideration of national security interests. See generally Iran Air v. Kugelman, 996 F.2d 1253, 1260 (D.C. Cir. 1993) (administrative judges “are entirely subject to the agency on matters of law“). Further, in all future bond proceedings involving aliens seeking to enter the United States illegally, where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, IJs and the BIA shall consider such interests.
Finally, I conclude that respondent has not individually demonstrated that he satisfies the prerequisites to discretionary release on bond under the provisions of
IV
Although neither the IJ nor the BIA chose to address the issue, respondent contends that he is constitutionally entitled on due process grounds to an “individualized determination” of his request for release on bond and that denying bond on broad national security grounds that are generally applicable to the October 29 migrants would somehow violate such a right. Respondent‘s Brief at 6-8. In that regard, I note that several federal appellate courts have recently held that a lawful permanent resident alien has a due process right to an individualized hearing and determination on whether he poses a risk of flight or a danger to the community when subjected to the mandatory detention provisions of section 236(c) of the INA. See Kim v. Ziglar, 276 F.3d 523 (9th Cir.), cert. granted sub nom. Demore v. Hyung Joon Kim, 536 U.S. 956 (2002); Patel v. Zemski, 275 F.3d 299, 314-15 (3d Cir. 2001); see also Hoang v. Comfort, 282 F.3d 1247, 1256 (10th Cir. 2002). Another federal appeals court has reached a contrary conclusion on that issue, see Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999), and the Supreme Court has granted the Government‘s petition for a writ of certiorari and heard oral argument in Kim.
I first note that the decisions in Kim and Patel were specifically addressed to the mandatory detention provisions of section 236(c) of the INA and are therefore fundamentally distinguishable from the procedures afforded under
More significantly, however, the holdings in Kim and Patel were premised upon the petitioner‘s status as a lawful permanent resident alien. See Kim, 276 F.3d at 528, 534; Patel, 275 F.3d at 307. In contrast, respondent has not
Even if the respondent were entitled to an individualized hearing, however, such a conclusion would not support a contention that this respondent‘s request for release on bond must be determined exclusively on the basis of his individual situation, rather than on the basis of general considerations applicable to a category of migrants, as a matter of constitutional due process. The mere fact that general considerations are introduced does not negate the individual nature of the hearing. The Attorney General is broadly authorized to detain respondent, and deny his request for bond, based on any reasonable consideration, individualized or general, that is consistent with the Attorney General‘s statutory responsibilities. See Reno v. Flores, 507 U.S. 292, 313-14 & n.9 (1993) (rejecting juvenile aliens’ demands for an “individualized custody hearing” and upholding INS use of “reasonable presumptions and generic rules” in such cases).
In any event, I have given full consideration to the individual aspects of respondent‘s claim for bond based on the record in this proceeding. I find nothing in respondent‘s individual case that warrants granting him release on bond when balanced against the above-described compelling factors that militate against such release in the case of undocumented aliens attempting illegal entry into the United States under the circumstances presented by the October 29 influx.
This argument is without merit. First, the UDHR is merely a nonbinding expression of aspirations and principles, rather than a legally binding treaty. See Haitian Refugee Center v. Gracey, 809 F.2d 794, 816 n.17 (D.C. Cir. 1987) (UDHR “is merely a nonbinding resolution, not a treaty“). In any event, the application of U.S. law to protect the nation‘s borders against mass migrations by hundreds of undocumented aliens violates no right protected by the UDHR or any other applicable rule of international law. As the Supreme Court has recognized, ““[T]he power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government‘s political departments . . . .” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). The authority to expel aliens is meaningless without the authority to detain those who pose a danger or a flight risk during the process of determining whether they should be expelled. The national security interests invoked in this opinion are directed at unlawful and dangerous mass migrations by sea, not the right to seek asylum. Aliens who do arrive in the United States, including the respondent himself, are afforded the right to apply for asylum and have those applications duly considered.8
I have determined that respondent‘s release on bond under the provisions of
Notes
The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
The Attorney General‘s authority to detain, or authorize bond for aliens underThe Attorney General shall have such authorities and functions under this Act and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.