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we conclude that an appeal in bond proceedings pursuant to section 242 (a) (2) of the Act and 8 CFR 242.2(b) is within the jurisdiction of this Board in the instant case.
This brings us to the merits of the appeal. The District Director in his order denying release on bond refers to the fact that the respondent has failed to effect his departure voluntarily on two prior occasions. He takes the position that the respondent's petition for review is patently frivolous and merely a dilatory tactic to avoid deportation. He also refers to the fact that the respondent did not take advantage of the special inquiry officer's offer to reconsider the application for voluntary departure in the event the respondent presented a paid ticket for departure from the United States within 10 days of the decision.
We are in no position to judge the sincerity of the respondent's petition for review. We do note, however, that the respondent was unable to depart for Japan, the country of his choice, because that country would not accept him. He cannot return to the country of his nationality, namely, the Republic of China on Formosa, for similar reasons. The respondent was enlarged on bond in the amount of $2,500 during the period of 10 months between the institution of deportation proceedings on December 7, 1967 and the date he reported voluntarily for deportation on October 21, 1968. It is alleged in the notice of appeal that in the normal course of events, the respondent's petition cannot be heard until sometime in January 1969. We find no basis for the continued detention of the respondent in light of his prior record while enlarged on bond. The fact that counsel for the respondent has made no move to accelerate the hearing before the Court of Appeals should not be held against the respondent. Counsel may or may not have reasons for his failure to take advantage of the offer of the United States Attorney for the Southern District of New York to argue the petition on an accelerated basis.
We can sympathaize with the District Director's feelings. The automatic stay of deportation afforded by section 106(a) (3) does open the door to dilatory opportunities in frivolous cases, and the District Director so views this case. Undoubtedly, the continued detention of the alien could be used as leverage to bring about his attorney's consent to an accelerated hearing in the Court of Appeals. However desirable that end might seem, we cannot justify the alien's continued detention as the means to that end.
The statute makes it clear that the detention power was designed for use, where needed, to make the alien available for hearing and, if ordered, for deportation. Denial of bail has been
sustained by the courts only where it has been demonstrated that the alien is not a good risk security-wise, Carlson v. Landon, 342 U.S. 524, 96 L. Ed. 547 (1952), or bail-wise, Marks v. Esperdy, 198 F. Supp. 40 (S.D.N.Y., 1961); Kordic v. Esperdy, 279 F. Supp. 880 (S.D.N.Y., 1967). This respondent obviously fits into neither category. To deny enlargement to an otherwise bailable alien merely because he has sought judicial review would constitute an impermissible restraint on the statutory right of judicial review, however justified the District Director might be in his conclusion that the litigation is frivolous and brought solely for delay.
There are other means of dealing with litigation which is purely dilatory. Frivolous actions are subject to summary dismissal or affirmance on motion, Fuentes-Torres v. Immigration and Naturalization Service, 344 F.2d 911 (9th Cir., 1965), cert. denied 382 U.S. 846. The automatic stay of deportation afforded by section 106(a) (3) remains effective only "unless the court otherwise directs.” In a proper case, the Court of Appeals may be induced on motion to dissolve the stay. Attorneys who persistently engage in abuse of process by bringing actions purely dilatory in frivolous cases may be brought to account by the courts whose officers they are. In any event, continued detention of the alien is not the way to deal with the problem of vexatious litigation.
Under the circumstances, we will enter an appropriate order releasing the respondent conditioned upon the posting of an acceptable appearance and delivery bond in the amount of $2,500.
ORDER: It is directed that the alien be released from custody conditioned upon the posting of an acceptable appearance and delivery bond in the amount of $2,500.
MATTER OF VILLEGAS AGUIRRE
In Deportation Proceedings
Decided by Board February 13, 1969
A timely appeal to the Board of Immigration Appeals from the special inquiry
officer's order granting respondent voluntary departure with an alternate order of deportation in the event of failure to depart, effects an automatic stay of execution of the special inquiry officer's order during the pendency of the appeal (8 CFR 3.6); the voluntary departure authorization by the special inquiry officer begins to run from the date of the Board's decision on the appeal.
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9)]—Nonimmi
grant visitor—failed to comply.
ON BEHALF OF RESPONDENT:
Antonio C. Martinez, Esquire
This case presents an appeal from a decison of the special inquiry officer granting the respondent the privilege of voluntary departure and further providing that in the event she failed to depart when and as required, the respondent should be deported to Ecuador. The appeal will be dismissed.
The respondent is a married native and citizen of Ecuador who entered the United States at Miami, Florida on or about August 17, 1968 as a nonimmigrant visitor for pleasure. She was authorized to remain in this country until December 31, 1968, but took gainful employment in New York City on or about August 29, 1968. Counsel conceded her deportability at the hearing.
The respondent has a return trip ticket to Ecuador. She is ready, willing and able to depart and consented to leave the United States within one month if granted voluntary departure.
The respondent suffers from a kidney condition and has been under medical care in this country. She has previously undergone surgery in Ecuador.
The special inquiry officer, by order dated October 16, 1968, finding no evidence of record to indicate that the respondent would be in any way impeded in her ability to travel by reason of her ailment, nor any indication she could not obtain adequate treatment in Ecuador upon her return there, granted the respondent only the privilege of voluntary departure. He further ordered that in the event she failed to depart when and as required, she should be deported on the charge contained in the order to show cause. On appeal, counsel stated only that, “The denial of additional time for voluntary departure is unreasonable, capricious and arbitrary.” Although an extension of time was granted upon request of counsel, no brief has been received.
We have reviewed the entire record in this matter and conclude that the special inquiry officer's decision was fully warranted. We find no substance to counsel's contention that the denial of additional voluntary departure time was unreasonable. Voluntary departure is the maximum relief to which respondent is eligible. If she finds she needs more time than the special inquiry officer has allowed, she can apply to the District Director for an extension. See 8 CFR 244.2.
Under 8 CFR 3.6, a timely appeal stays the execution of the special inquiry officer's decision during the pendency of the appeal. As we have held in a number of unreported decisions, the stay not only affects the automatic deportation provision of the special inquiry officer's order, but it also tolls the running of the voluntary departure authorization. See In Ja Kim v. INS, 403 F.2d 636 (7 Cir. 1968). Thus, the respondent still has 30 days from the date of our decision within which to depart voluntarily and thereby avoid the automatic entry of the deportation order prescribed by the special inquiry officer.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the United States voluntarily within 30 days from the date of this de cision or any extension beyond that time as may be granted by the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order.
MATTER OF WONG AND CHAN
In Deportation Proceedings
Decided by Board February 6, 1969
(1) Where, due to their suspicious actions, a Service investigator sought to
interrogate respondents who tried to flee from him, but he was unable to do so due to a language barrier, whereupon he instructed a hospital security officer, without the knowledge of respondents, to stand guard over them while he went nearby to get the help of another investigator travelling with him and to seek the services of an interpreter, arrest of respondents did not occur with the stationing of the security officer, which was done merely to make it possible to interrogate respondents, but occurred when they were subsequently taken into custody by the Service investigators following interrogation revealing their illegal presence in the United
States. (2) Arrest of respondents without a warrant was proper since the Service
investigators, being aware that respondents were illegally in the United States and that they had fled to avoid interrogation, could reasonably conclude that it was likely they would escape before warrants could be obtained.*
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Crewmen
-remained longer (each respondent).
ON BEHALF OF RESPONDENTS:
David Carliner, Esquire
ON BEHALF OF SERVICE:
R. A. Vielhaber
Respondents appeal from the special inquiry officer's order finding them deportable as charged. The appeals will be dismissed.
* Affirmed, see 445 F.2d 217 (C.A. D.C., 1971).
1 Separate hearings started on November 13, 1967, were consolidated by agreement and joint hearings were held thereafter. No one record contains the complete testimony. References to pages preceded by “R” will be found in either record. Page references not attributed to the Chan record are from the Wong record. Exhibit references are to exhibits in record under discussion.