AG's Precedent Decision Denies Haitian's Release on Bond Based on Generalized National Security Concerns

IMMIGRATION LAW & POLICY

Arrest and Detention

AG'S PRECEDENT DECISION DENIES HAITIAN'S RELEASE ON BOND BASED ON GENERALIZED NATIONAL SECURITY CONCERNS
Immigrants' Rights Update, Vol. 17, No. 3, June 3, 2003

Attorney General John Ashcroft has invoked his authority to reverse a decision of the Board of Immigration Appeals ordering the release of an 18-year-old Haitian asylum applicant on a $2,500 bond. The attorney general based his extraordinary decision principally on general national security concerns unrelated to the specific factors in the respondent's case.

The respondent in this case, David Joseph, fled Haiti along with 216 other Haitians who arrived in Miami on Oct. 29, 2002. As it reached Key Biscayne, the boat Joseph was in ran aground and many of its occupants jumped into the sea and swam towards the shore. When they reached land, many of them attempted to flee authorities who were attempting to detain them. It is unclear from the opinion whether Joseph was among those who swam to shore and ran from authorities. Nevertheless, he was detained.

Joseph filed for asylum and sought to be released from detention on bond. The Immigration and Naturalization Service (now the Dept. of Homeland Security, or DHS) objected to his being released on bond, arguing that releasing him "would stimulate further surges of such illegal immigration by sea and threaten important national security interests." The immigration judge granted Joseph's release on a $2,500 bond, and the INS appealed to the BIA. In a per curiam decision (i.e., a short decision made by a panel of BIA members and not authored by an individual panel member), the BIA concluded that, "absent contrary direction from the Attorney General," the broad national security interests invoked by the INS were not appropriate considerations for the purposes of determining release on bond.

Following that decision, Asa Hutchinson, undersecretary for the Border and Transportation Security Dept. under the newly structured DHS, referred the case to the attorney general. In the referral he noted that pursuant to regulations, the BIA decision ordering Joseph's release would be automatically stayed. In addition, he asked that the attorney general stay the adjudication of all other bond requests from individuals who arrived in the U.S. by boat with Joseph on the same day. The attorney general opted to review the case and now has issued a precedent decision.

The attorney general's opinion notes that under section 236(a) of the Immigration and Nationality Act, he has wide discretion over detentions of non-U.S. citizens and their release from custody. The opinion finds that neither the statute nor the regulations give respondents any right to release on bond, but rather, "the statute merely gives the Attorney General the authority to grant bond if he concludes, in the exercise of broad discretion, that the alien's release on bond is warranted" (emphasis in original). The opinion departs from a long-established approach to custody and bond determinations. It does not discuss or even cite Matter of Patel, 15 I. & N. Dec. 666 (1976), the precedent decision in which the BIA found that release on bond is appropriate except where a respondent presents a flight risk or a danger to the community. Rather than considering whether Joseph, as an individual, posed a risk of flight or a danger to the community, the attorney general focused on general factors unrelated to the specific circumstances of the respondent, reviewing the incidence of increased migration to the Florida coast by Haitians and whether as a whole their increased migration presents a national security concern. The attorney general concluded that these generalized factors warranted Joseph's detention without bond.

In the opinion, the attorney general asserts that he did consider "the individual aspects" of Joseph's claim for bond but found nothing that would warrant his release on bond when balanced against the "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 recent influx of Haitians. However, the only individualized consideration discussed in the opinion is the attorney general's finding that Joseph had not demonstrated that he was not among the individuals who jumped off the boat and swam ashore in an effort to evade apprehension, thereby placing the evidentiary burden on Joseph. Therefore, the attorney general denied Joseph's release from custody because he could not prove that he was not a flight risk.

However, the decision clearly is based on the attorney general's assessment of national security concerns. The government asserted that the increasing number of boats arriving in the U.S. from Haiti and other parts of the Caribbean have heavily taxed the U.S. Coast Guard. According to the attorney general's logic, if Joseph and others were freed from detention, their release would signal to other Haitians that they should attempt similar journeys to the U.S. Their arrival would continue to divert the U.S. Coast Guard from responding to other national security concerns. In addition, the attorney general cited State Dept. declarations stating that it had noticed an increase in the use of Haiti as a staging point for migration by other third country nationals such as Palestinians and Pakistanis.

The attorney general also considered and rejected the BIA's suggestion that a new policy imposing expedited removal on persons arriving by sea already sent a message that individuals would be detained during the pendency or their removal hearings. (In Nov. 2002, the Dept. of Justice exercised its discretion to apply expedited removal to individuals who arrive in the U.S. by sea who cannot prove that they have lived continuously in the U.S. for two years. See "INS Expands Expedited Removal to Haitians Arriving by Sea," IMMIGRANTS' RIGHTS UPDATE, Nov. 22, 2002, p. 2).

Joseph had argued that the new expedited removal policy would send the message that future arrivals by sea would be met with prolonged detention. However, the attorney general responded by saying that because the new policy did not apply to parolees or those arriving by other means, it was "not airtight." Moreover, any releases from custody would undercut the message provided by the implementation of the new policy. Joseph had also argued that denial of his release violates due process. He cited several appellate court decisions that had found INA sec. 236(c), another section of the detention statute, unconstitutional. However, the attorney general pointed out that while a number of decisions had struck down mandatory detention provisions as unconstitutional, those decisions were decided on behalf of lawful permanent residents. (For more on these decisions, see "3d and 9th Circuits Hold Mandatory Detention Provision Unconstitutional," IRU, Feb. 28, 2002, p. 11. However, these decisions were recently reversed by the U.S. Supreme Court. See "Supreme Court Upholds Mandatory Detention," p. 7 of this issue.) In contrast, Joseph is a non-U.S. citizen and would enjoy no such due process rights. On this basis the attorney general rejected Joseph's claim to a right to an individualized bond hearing. The attorney general also dismissed Joseph's international law arguments by declaring that such legal instruments are only advisory, not binding.

In re D-J-, 23 I. & N. Dec. 572 (A.G. 2003).