UNITED
STATES DEPARTMENT OF JUSTICE
EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW
OFFICE
OF THE IMMIGRATION JUDGE
IN
THE MATTER OF Male Respondent
)
File No. A
)
In Removal Proceedings
)
Section 287.3 implements 8 U.S.C. § 1457, INA § 287. Section 287 does not mention extended detention prior to filing a charging document to enable the Attorney General to conduct an investigation.[2]
An agency cannot exceed the scope of the authority Congress provides. This is so regardless of how salubrious the purpose of the agency’s action. See, e.g., Food and Drug Administration v. Brown & Williamson Tobacco Corp, 529 U.S. 120 (1999) (striking Food and Drug Administration’s (FDA’s) regulatory attempt to mitigate devastating health consequences from cigarette smoking). The Attorney General cannot use regulations to expand the INS’ authority to detain a noncitizen without a warrant beyond the authority Congress provided in §287 any more than the FDA could use its general powers to regulate tobacco.
When
Congress believes that national security concerns justify expanding the Attorney
General’s authority to detain noncitizens it does so by passing legislation.
For example, in 1950, Congress passed the Internal Security Act section
23 of which authorized the Attorney General:
. . . Pending final determination of the deportability of any alien taken
into custody under warrant of the Attorney General, such alien may, in the
discretion of the Attorney General (1) be continued in custody; or (2) be
released under bond in the amount of not less than $ 500, with security approved
by the Attorney General; or (3) be released on conditional parole. . . .
Without comparable legislation today, the Attorney General is powerless to expand the INS’ detention authority.
The Administrative Procedures Act requires an agency to give the public notice and an opportunity to comment before a regulation takes force, unless one of several specific exceptions apply [cite]. The Attorney General published 8 C.F.R. § 287.3 as an interim regulation. The Attorney General justified publishing 8 C.F.R. § 287.3 as an interim regulation because the Constitution did not mandate the regulation. [fed reg cite]. The language and purpose of the regulation do not support the Attorney General’s conclusion.
The source of the phrase “emergency or other extraordinary circumstance” is Supreme Court Fourth Amendment jurisprudence. Section 287.3 of 8 C.F.R. includes the phrase “emergency or other extraordinary circumstance” in the amended regulation because it would be unconstitutional to detain a person indefinitely without qualification. See Gerstein v. Pugh, 420 US 103 (19 ); County of Riverside v. McLaughlin, 500 U.S. 44, (1991). The phrase “emergency or other extraordinary circumstance” is lifted verbatim from County of Riverside, 500 U.S. 44, 57 (1991). Because the Attorney General included the “emergency or other extraordinary circumstance” language to avoid violating the United States Constitution, it is a constitutionally mandated regulation. Consequently, the Attorney General incorrectly characterized the regulation as not constitutionally mandated. By not publishing the regulation as a proposed rule and by failing to justify publishing within one of the exceptions under the Administrative Procedure Act, the regulation should not take effect until after the public has notice and the opportunity to comment.
Assuming, for the sake of argument and without conceding either point, that the Attorney General has the authority to promulgate 8 C.F.R. § 287.3 and that it is lawful for it to take effect upon publication, the Attorney General has violated the regulation by detaining respondent for an unreasonable period of time.
The respondent asserts that the Attorney General’s continued detention without filing a charging document violates his right to substantive and procedural due process.
The Attorney General should release the respondent because: the INS lacks the authority to hold the respondent since 8 C.F.R. §287.3 exceeds the scope of the Attorney General’s authority; the Attorney General’s failure to justify publishing 8 C.F.R. §287.3 means that it should be treated as a proposed regulation not yet in effect; and the Attorney General has held that respondent for an unreasonable period of time under the circumstances.
Dated:______________
Respectfully submitted by his attorney,
_______________________________
Attorney Name
Attorney Address
Attorney Phone
CERTIFICATE
OF SERVICE
I hereby certify that I served the foregoing Brief in Support of Motion
for a Speedy Bond Hearing, Request for Early Scheduling, and Release on
the on the Immigration and Naturalization Service by [state manner of service
e.g. hand delivery] to:
[INS address]
Dated:
____________________
____________________________
Signature of person serving motion
[1] Facts
asserted in this section are based on the attached exhibits, including
respondent's declaration, or on testimony which will be given by respondent.
[2] Section
1357. Powers of immigration officers and employees
(a) Powers without warrant
Any officer or employee of the Service authorized under
regulations prescribed by the Attorney General shall have power
without warrant -
(1) to interrogate any alien or person believed to be an alien
as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering
or attempting to enter the United States in violation of any law
or regulation made in pursuance of law regulating the admission,
exclusion, expulsion, or removal of aliens, or to arrest any
alien in the United States, if he has reason to believe that the
alien so arrested is in the United States in violation of any
such law or regulation and is likely to escape before a warrant
can be obtained for his arrest, but the alien arrested shall be
taken without unnecessary delay for examination before an officer
of the Service having authority to examine aliens as to their
right to enter or remain in the United States;
(3) within a reasonable distance from any external boundary of
the United States, to board and search for aliens any vessel
within the territorial waters of the United States and any
railway car, aircraft, conveyance, or vehicle, and within a
distance of twenty-five miles from any such external boundary to
have access to private lands, but not dwellings, for the purpose
of patrolling the border to prevent the illegal entry of aliens
into the United States;
(4) to make arrests for felonies which have been committed and
which are cognizable under any law of the United States
regulating the admission, exclusion, expulsion, or removal of
aliens, if he has reason to believe that the person so arrested
is guilty of such felony and if there is likelihood of the person
escaping before a warrant can be obtained for his arrest, but the
person arrested shall be taken without unnecessary delay before
the nearest available officer empowered to commit persons charged
with offenses against the laws of the United States; and
(5) to make arrests -
(A) for any offense against the United States, if the offense
is committed in the officer's or employee's presence, or
(B) for any felony cognizable under the laws of the United
States, if the officer or employee has reasonable grounds to
believe that the person to be arrested has committed or is
committing such a felony,
if the officer or employee is performing duties relating to the
enforcement of the immigration laws at the time of the arrest and
if there is a likelihood of the person escaping before a warrant
can be obtained for his arrest.
Under regulations prescribed by the Attorney General, an officer or
employee of the Service may carry a firearm and may execute and
serve any order, warrant, subpoena, summons, or other process
issued under the authority of the United States. The authority to
make arrests under paragraph (5)(B) shall only be effective on and
after the date on which the Attorney General publishes final
regulations which (i) prescribe the categories of officers and
employees of the Service who may use force (including deadly force)
and the circumstances under which such force may be used, (ii)
establish standards with respect to enforcement activities of the
Service, (iii) require that any officer or employee of the Service
is not authorized to make arrests under paragraph (5)(B) unless the
officer or employee has received certification as having completed
a training program which covers such arrests and standards
described in clause (ii), and (iv) establish an expedited, internal
review process for violations of such standards, which process is
consistent with standard agency procedure regarding confidentiality
of matters related to internal investigations.