the same required for each bail application, it is predictable that the
expenditure of INS resources on such hearings would at a minimum double,
assuming that every person who asks for a deportation hearing would also
ask for a hearing on at least one bail application.
Supreme Court precedent establishes, furthermore, that the opportunity
to be heard with respect to the deprivation of a constitutionally
protected interest does not always mean that a live testimonial hearing is
required. In Kwong Hai Chew v. Colding, 344 U.S. 590(1953), the Supreme
Court addressed what process was owed to the petitioner in that case, a
Chinese seaman who had been a legal permanent resident for about three
years before being denied entry to the United States upon his return from
a voyage abroad which was taken connection with in his employment. The
Court found that he had a right to be heard prior to deportation:
"Although Congress may prescribe conditions for his expulsion and
deportation, not even Congress may expel him without allowing him a fair
opportunity to be heard." Id. at 597. The Court further discussed what
might satisfy the hearing requirement, noting that "[o]ne of the
principles [inherent in due process] is that no person shall be deprived
of . . . liberty without opportunity, at some time, to be heard, before
[administrative officers executing the provisions of a statute involving
the liberty of persons], 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." Id. at 478, n. 6.
Under the circumstances of this case, the Constitution does not compel
that Ferreras be afforded an in-person, evidentiary hearing upon his
application for temporary release. As the Supreme Court noted in Mathews
v. Eldridge, "[t]he fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner."
424 U.S. at 333 (internal quotation marks omitted).
The "opportunity to be heard" does not necessarily require an
in-person, evidentiary hearing. Here, the INS regulations set forth
clearly the criteria applicable to parole determinations. Ferreras was
afforded an unfettered opportunity to present a written application and
did so. His arguments were presented by counsel; thus any due process
concern that might stem from the inability of a lay person to present
effective legal arguments is absent here. Cf. Mathews v. Eldridge, 424
U.S. at 345. The submission was considered and its factual premises
accepted. The requisite notice and opportunity were afforded by the
procedure. The District Director's determination reflects individualized
consideration of Ferreras' application and was not arbitrary. The
procedure thus comported with the requirements of due process and no
constitutional infirmity compels the conduct of a live evidentiary
Petitioner further contends that his due process rights were violated
because his parole application was reviewed by the District Director
rather than by an Immigration Judge. Courts must begin by presuming that
an administrative agency will act properly and according to law. FCC v.
Schreiber, 381 U.S. at 296. The statute and regulations provide for
review of parole applications by the District Director.
The Court finds that Petitioner has failed to establish that his rights
were violated in this respect.
The adjudication of deportation-related issues by agency personnel is a
long-standing practice and is one that has withstood Constitutional
challenges. In Marcello v. Bonds, 349 U.S. 302(1955), the Supreme Court
rejected the contention that a deportation hearing was neither fair nor
impartial because the special inquiry officer was subject to the
supervision and control of the INS:
The contention is without substance when considered
against the long-standing practice in deportation
proceedings, judicially approved in numerous decisions
in the federal courts, and against the special
considerations applicable to deportation which the
Congress may take into account in exercising its
particularly broad discretion in immigration matters.
Id. at 311. In Withrow v. Larkin, 421 U.S. 35, 56(1975), the Supreme
Court likewise noted that it is "typical for the members of
administrative agencies to receive the results of investigations, to
approve the filing of charges or formal complaints instituting enforcement
proceedings, and then to participate in the ensuing hearings." As the
Fifth Circuit noted in United States v. Benitez-Villafuerte, 186 F.3d 651,
660 (5th Cir. 1999), "the Supreme Court's precedent on this point is
clear: we will not presume bias from the mere institutional structure of
The INA commits detention and parole release determinations to the
discretion of the Attorney General. 8 U.S.C. § 1182(d)(5). Ferreras
argues, without pointing to specific evidence, that an INS hearing
officer is an inherently biased adjudicator. This proposition has
repeatedly been rejected by the Supreme Court and Circuit Courts of
Appeal. See. e.g., Marcello v. Bonds, 349 U.S. at 311 ("[t]he . . .
contention that because the officer is under the supervision of
Immigration and Naturalization Service officers who perform prosecuting
and investigative functions, due process may be violated, is . . .
without merit"); United States v. Garcia-Martinez, 228 F.3d 956, 960-64
(9th Cir. 2000) (finding no due process violation in expedited removal
proceedings where alien challenged procedure on the basis that special
inquiry officer was inherently biased because he served as an INS
enforcement employee); United States v. Benitez-Villafuerte, 186 F.3d at
659 (finding allegation that the INS impermissibly functioned in
prosecutorial and adjudicative capacity was "wholly devoid of merit"). To
the contrary, a hearing officer is presumed to be fair. See Schweiker v.
McClure, 456 U.S. 188, 195(1982) (in applying the Mathews factors,
starting from the presumption that hearing officer serving in
quasijudicial capacity is presumed to be fair and finding no
disqualifying interest to show bias on the part of the hearing
officers); Withrow v. Larkin, 421 U.S. at 35 ("The contention that the
combination of investigative and adjudicative functions
necessarily creates an unconstitutional risk of bias in administrative
adjudication . . . must overcome a presumption of honesty and integrity
in those serving as adjudicators. . . ."). Likewise, "the Attorney
General's exercise of his broad discretionary power [to release
unadmitted aliens under 8 U.S.C. § 1182(d)(5)] must be viewed at the
outset as presumptively legitimate and bona fide in the absence of strong
proof to the contrary." Bertrand v. Sava, 684 F.2d at 212-132.
In light of the Supreme Court's mandate to presume fairness on the part
both of the agency and of the hearing officer, and in the absence of any
particularized showing of bias on the part of the Acting District Director
who determined Ferreras' application, the Court finds that Ferreras has
failed to demonstrate that the INS violated his due process rights when
the District Director, as opposed to an Immigration Judge, ruled on his
request for release pending termination of the deportation proceedings.
Ferreras has failed to demonstrate that his detention by the INS
violates his rights under the Constitution of the United States.
Therefore, whether or not the Court would have reached conclusions
different from those reached by the INS regarding the propriety of his
release from detention, there is no basis for judicial interference with
the discretionary determination made by the INS in this case pursuant to
its statutory authority. Accordingly, the petition for a writ of habeas
corpus is denied and the stay of deportation previously entered by the
Court is vacated.