order pending appeal. (Pet. Ex. 8) When petitioner's family sought to post bond later that day, however, the INS delayed. INS Appellate Counsel applied to the BIA for a stay of the order admitting petitioner to bond, which was issued on the same date. The petition claims that the stay application was made ex parte, although it acknowledges that petitioner's counsel apparently got wind of what was going on and had a telephone conversation with a BIA clerk. The INS claims that petitioner's counsel was heard by telephone. (Return P 4 & Ex. A, at 001) Nothing ultimately turns on resolution of this dispute, however.
The IJ filed an extensive opinion setting forth her findings and conclusions on September 23, 1996. (Pet. Ex. 1) The IJ concluded that the evidence of petitioner's involvement in the alleged ambush was "not persuasive, reliable [or] probative," noting that the evidence against him consisted in substantial measure of statements from prisoners accused of participating in the ambush who were "beaten and tortured during interrogation..." She concluded also that petitioner was not a flight risk. Given the fact that the written decision was not completed until September 23, 1996, more than two weeks after the BIA stayed the IJ's order, the BIA obviously did not have the benefit of the IJ's reasoning or findings.
The petition presents three claims for relief. The first contends that petitioner's continued detention on bond is arbitrary, capricious and without reasonable foundation. The second asserts that the BIA's issuance of the stay without a hearing or review of the IJ's decision, as well as its failure to determine the government's appeal from the IJ's order on a timely basis, was arbitrary, capricious and a violation of petitioner's right to due process of law. The third contends that the failure to release petitioner on bond is unreasonable and improper, either standing alone or taken together with the Attorney General's failure to proceed with "reasonable dispatch" in hearing petitioner's political asylum claim.
Release on Bond Pending the Deportation and Asylum Proceeding
Petitioner's first and third claims overlap to the extent that both assert in substance that petitioner is entitled to release on bond pending the determination of his asylum application. It would be inappropriate, however, for the Court to reach the merits of these claims.
While 28 U.S.C. § 2241, which authorizes the district courts to issue writs of habeas corpus, does not in terms so provide, it long has been established that an applicant for the writ first must exhaust his administrative remedies. Gonzalez v. Perrill, 919 F.2d 1, 1-2 (2d Cir. 1990). Petitioner began the process by applying for bond and, indeed, prevailed at the first stage. Bond decisions by IJs, however, are reviewable by the BIA. 8 C.F.R. § 3.1(b)(7). The BIA conceivably may agree with the IJ's decision in this case, in which case petitioner presumably would be released. As long as that avenue remains before petitioner, he has not exhausted his administrative remedies and the petition does not lie.
Release on Bond Pending Determination of the Appeal to the BIA
Petitioner's second claim goes to a related but quite distinct issue. He asserts that the BIA acted improperly in staying the IJ's bond order.
In considering whether a habeas petitioner has exhausted his or her administrative remedies, it is important to focus on the precise issue as to which the petitioner seeks judicial relief. See United States v. LaVallee, 312 F.2d 308, 309 (2d Cir. 1963). In this case, petitioner argues not only that he has a right to bond pending the resolution of the asylum-deportation proceeding, but that he is entitled to be released pending the government's appeal from the IJ's decision in his favor on the bond application. On that question, the BIA already has spoken.
In consequence, the Court will consider the merits of the BIA's action.
The threshold question is whether the BIA is empowered to stay, pending appeal, orders of IJs that grant or deny bond. To those steeped in the superficially analogous powers of the federal courts of appeals, the answer seems obviously to be affirmative. On consideration of the quite different nature of the BIA, however, the problem is less easily resolved, but nonetheless yields the same conclusion.
8 C.F.R. § 242.2(c)(2) provides in substance that an officer executing an administrative arrest warrant in connection with a deportation proceeding initially shall determine whether the respondent will be held in custody pending the completion of the proceeding. After that initial determination, however, the arrestee may apply to an IJ for release. Id. § 242.2(d). The decision of the IJ may be appealed, either by the arrestee or the INS, to the BIA. Id.; 8 C.F.R. §§ 3.1(b)(7), 242.2(d).
Section 3.6 of the regulations provides that "the decision in any proceeding ... from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal . . . [or] while an appeal is pending" "except as provided in § 242.2 of this chapter ..." 8 C.F.R. § 3.6 (emphasis added). Section 242.2(d), which authorizes IJs to rule on bond applications, provides that "the filing of an appeal from a determination of an [IJ] ... shall not operate to delay compliance, during the pendency of the appeal, with the custody directive from which the appeal is taken...." Id. § 242.2(d). Thus, the regulations are crystal clear that the filing of an appeal by the INS from an order releasing a respondent pending a deportation proceeding, unlike any other type of appeal to the BIA, does not of its own force stay the order.
This of course does not answer the question whether the BIA has the power to stay a custody determination pending appeal. A statutory or regulatory framework contemplating appellate review of initial determinations might well provide that (1) the taking of an appeal itself stays enforcement of the order appealed from, (2) orders appealed from remain in effect pending appeal in all cases, or (3) the forum from or to which an appeal is taken may stay the effect of the order appealed from in an appropriate case. Compare, e.g., N.Y. CPLR § 5519(a), subd. 1 (appeal by state or political subdivision stays order appealed from), with id. § 5519(c) (court from or to which appeal taken may issue stay). Resolution of the question before the Court therefore requires close attention to the statutory and regulatory structure defining the powers of the BIA.
Most powers relating to immigration matters are vested by statute in the Attorney General of the United States. 8 U.S.C. § 1103(a). The Attorney General in turn may delegate her power as she sees fit. See, e.g., Johns v. Department of Justice, 653 F.2d 884, 889 (5th Cir. 1981). In order to facilitate the discharge of her statutory obligations, she has created the BIA which has no statutory basis, by regulation. Green v. INS, 313 F.2d 148 (9th Cir.), cert. denied, 374 U.S. 828, 10 L. Ed. 2d 1052, 83 S. Ct. 1869 (1963). In consequence, the BIA's power is limited to that granted to it by the Attorney General, and it is powerless to act in any matter not enumerated in the regulations. 1 CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE § 3.05, at 3-54 (rev. ed. 1996).
There is nothing in the regulations that create the BIA or set forth its powers that expressly confers upon it the power to stay a bond determination by an IJ. The question is whether such a power properly may be inferred.
Section 3.1(d)(1) of the regulations provides in relevant part:
"Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case." 8 C.F.R. § 3.1(d)(1).
Because the Attorney General is vested with the statutory authority to grant or deny release on bond in deportation hearings, 8 U.S.C. § 1252(a)(1), the government argues that the authority to stay a release order necessarily was conferred on the BIA by this provision.
The language of Section 3.1(d)(1) suggests that the BIA impliedly was granted the power to stay release orders. The regulation empowers the BIA to exercise the Attorney General's powers "in considering and determining cases before it" to the extent doing so "is appropriate and necessary for the disposition of the case." The "case" before the BIA is the appeal from the bond determination of the IJ. The term "necessary," from the very inception of American law, has been interpreted liberally. As Chief Justice Marshall stated in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 4 L. Ed. 579 (1819), synonyms for "necessary" include "convenient, or useful." Ensuring the continued presence of the alien during his bond appeal is, obviously, more than a matter of mere convenience in the disposition of a case before the BIA. Allowing IJs alone to exercise power over alien detentions during the bond appeal process would threaten the BIA's explicit power over bond determination appeals. Should an alien escape in those cases in which the BIA would have reversed an IJ's decision admitting an alien to bond, its power to determine the custodial status of the alien pending deportation proceedings would be rendered a functional nullity. Accordingly, there is considerable strength to the view that the power to stay orders admitting aliens to bond is implicit in the BIA's power to hear and determine appeals from such orders. Cf. Doherty v. Meese, 808 F.2d 938, 941-42 & n.3 (2d Cir. 1986) (BIA empowered to exercise authority necessary to dispose of appeal presenting novel issue of Attorney General's right to reject country of deportation designated by alien); United States v. Huckabay, 707 F. Supp. 35, 37 (D. Me. 1989) (statute permitting government appeal from order releasing criminal defendant on bail implicitly confers on reviewing court power to stay order pending appeal).
The Attorney General's acquiescence in the BIA's issuance of such stays further demonstrates her approval of the practice. Just as difficult separation of powers delegation questions may be resolved, at least in part, by consistent conduct over time, Youngstown Co. v. Sawyer, 343 U.S. 579, 613, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) (Frankfurter, J., concurring), so may questions of subdelegation. It appears that the BIA long has exercised its right to stay IJ bond determinations
without the Attorney General having altered the regulations or, as far as the record discloses, disapproving of the practice. The Court reasonably may infer that this inaction on her part express approval of the practice sub silentio.
Courts usually accord considerable deference to government agencies' interpretations of the statutes they administer. E.g., Chevron v. National Resources Defense Council, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984); Good Samaritan Hospital Regional Medical Center. v. Shalala, 85 F.3d 1057, 1060 (2d Cir. 1996); Rye Psychiatric Hospital Center, Inc. v. Shalala, 52 F.3d 1163, 1168 (2d Cir. 1995). Although the present case concerns a subdelegation from the Attorney General to the BIA, the rationale for judicial deference remains the same. Gaps in explicit internal delegations of administrative authority, such as the lack of an explicit grant to the BIA of power to stay bond determinations, often may be ascribed to "inadequate expertise, inadequate time, inadequate foresight." 1 KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 3.3, at 112 (3rd ed. 1994). Absent persuasive evidence that the lack of an explicit grant of such authority reflects an intention to withhold such power, the Court will defer to the BIA's not unreasonable view that the power has been delegated to it.
The Merits of Salazar's Petition
As the government has demonstrated that the BIA may exercise its power to issue a stay in an appropriate case, the Court must determine whether the BIA's action in doing so here violated petitioner's rights and thus warrants relief. The standard for making such determinations with regard to denials of bail pending the outcome of deportation proceedings is found in United States ex rel. Potash v. District Director, 169 F.2d 747 (2d Cir. 1948), and its progeny. Subsequent to an INS decision to deny bond, a habeas corpus writ releasing petitioner must "demonstrate [by] a clear and convincing showing that the decision against him was without a reasonable foundation." Id. at 751.
While the temporary nature of a stay urges, if anything, heightened deference to the it BIA's determination, the Court concludes that the petition must be denied even if the "reasonable foundation" standard is applied.
Despite the fact that petitioner apparently has a cogent case for political asylum, the Board was entitled to conclude that he presents a sufficiently substantial risk of flight to justify continued detention pending determination of the INS' appeal. Should petitioner be deported to Peru, he is likely to face a long term of imprisonment or death at the hands of the Peruvian authorities. Indeed, the threat of such treatment is the basis of his asylum application. The Board cannot be said to have acted capriciously in concluding that such severe potential penalties, whether products of justice or tyranny, could serve as an impetus for flight, thus providing the requisite "reasonable foundation" for its limited action in staying the bond order.
For the foregoing reasons, the petition for a writ of habeas corpus is denied.
Dated: October 9, 1996
Lewis A. Kaplan
United States District Judge