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Gornicka v. Immigration and Naturalization Service

decided: June 22, 1982.

MALGORZATA GORNICKA, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT .



Petition for Review of an Order of the Immigration and Naturalization Service

Before Pell, Circuit Judge, Kashiwa, Associate Judge,*fn* and Eschbach, Circuit Judge.

Author: Kashiwa

This case raises the question whether an alien's bond determination made pursuant to 8 U.S.C. § 1252(a) (1976) and 8 C.F.R. § 242.2 (1981) is directly appealable to the Courts of Appeals under 8 U.S.C. § 1105a (1976).

Malgorzata Gornicka, the petitioner, a citizen of Poland, entered the United States on September 5, 1979, as a nonimmigrant visitor for pleasure under section 101(a)(15)(B) of the Immigration and Nationality Act (hereinafter the Act). A visit until October 1, 1979, was authorized by her visa; she, however, stayed past the October 1 deadline. On January 29, 1981, petitioner was apprehended by an immigration official. Deportation proceedings were then commenced against the petitioner by an order to show cause dated January 30, 1981. Petitioner was charged under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1976).*fn1 Pursuant to 8 C.F.R. § 242.2(a), the District Director authorized the release of petitioner under a $2,000 bond. Petitioner appealed the amount of the bond and at a bond redetermination hearing before an immigration judge, held pursuant to 8 C.F.R. § 242.2(b), the bond was reduced to $1,500. The petitioner paid the $1,500 bond, was released, and is presently at liberty.

Petitioner appealed the decision of the immigration judge to the Board of Immigration Appeals contending, first, that there was no need for bond and, second, that her constitutional rights were violated because the bond was excessive and there was no transcript of the bond redetermination hearing. The Board rejected petitioner's contentions and held a $1,500 bond was necessary to ensure her presence at future deportation proceedings since she had no family in the United States and had previously ignored the regulations of the Immigration and Naturalization Service. As of this date, no deportation hearing has been held nor order entered against petitioner. Petitioner now seeks review of the decision of the Board of Immigration Appeals in this court.*fn2

I

Section 106 of the Act, 8 U.S.C. § 1105a governs this court's jurisdiction of direct appeals of final orders of deportation. It states in pertinent part:

§ 1105a. Judicial review of orders of deportation and exclusion

(a) Exclusiveness of procedure

The procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation, heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, * * *." (Emphasis supplied.)

Petitioner contends the decision of the Board of Immigration Appeals is appealable under section 1105a. We must decide whether the decision of the Board of Immigration Appeals concerning petitioner's bond is a "final order of deportation" subject to direct review in this court under section 1105a.

There has been much litigation concerning the meaning and parameters of "final orders of deportation." See, e.g., Dastmalchi v. Immigration and Naturalization Service, 660 F.2d 880 (3d Cir. 1981). See generally Friendly, The Gap in Lawmaking, 63 Col.L.Rev. 787, 795-796 (1963). In Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963), the first Supreme Court case on this issue, the Court held that "final orders of deportation" include denials of suspension of deportation. The Court said:

Next in a short per curiam opinion, Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964), the Supreme Court held that "final orders of deportation" encompassed denials of motions to reopen deportation hearings.

In its most recent case on section 1105a, Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968), the Supreme Court has placed a limitation upon "final orders of deportation." In Cheng Fan Kwok, the petitioner conceded his deportability but obtained permission to depart the United States voluntarily. Petitioner, however, failed to voluntarily depart and was subsequently ordered to surrender for deportation. At that time, he requested a stay of deportation pending submission and disposition of an adjustment of status. The District Director ...


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