Doan v. Ins: 9th Circuit Rules INS Can Require Bond to Ensure Compliance with an Order of Supervision

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

DOAN V. INS: 9TH CIRCUIT RULES INS CAN REQUIRE BOND TO ENSURE COMPLIANCE WITH AN ORDER OF SUPERVISION
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

The U.S. Court of Appeals for the Ninth Circuit has ruled that the Immigration and Naturalization Service may require a noncitizen to post a bond to ensure his or her compliance with an order of supervision.

Persons are released under an order of supervision when they are subject to a final order of removal that the INS is unable or unwilling to execute. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court ruled that the INS is not authorized to detain noncitizens subject to final removal orders once removal is no longer reasonably foreseeable. In this case, the petitioner was released from custody, but the INS required that he post a $10,000 bond as a condition of that release. The petitioner argued that the INS had no authority to require a bond because the statute did not authorize it and because the INS could not continue to detain him in light of Zadvydas. However, the court concluded that, where (as in this case) the amount of the bond is reasonable and does not prevent the noncitizen's release, the INS may require it.

The petitioner in this case, a Mr. Doan, is a Vietnamese national who was ordered removed to Vietnam because of two felony convictions. Vietnam refused to accept his return, and when the INS continued to detain him he filed a habeas petition in district court. The district court denied relief, and Doan appealed. While his appeal was pending, the Ninth Circuit decided Ma v. Reno, 208 F.3d 815 (9th Cir. 2000), amended sub nom. Ma v. Ashcroft, 257 F.3d 1095 (2001), finding that section 241 of the Immigration and Nationality Act does not authorize detention under a final removal order where removal is not reasonably foreseeable. The appeals court vacated the district court ruling in Doan's case and remanded it to the district court in light of Ma. The case was then held in abeyance with the agreement of the parties pending the Supreme Court's review of Ma, which ultimately resulted in the Zadvydas decision. While the parties awaited the High Court's decision, the INS agreed to release Doan from custody, subject to payment of a $10,000 bond. Doan's family immediately paid the bond.

After the Supreme Court issued the Zadvydas decision, Doan sought an injunction from the federal district court to require the INS to return the $10,000. As noted above, he argued that the agency could not impose a bond when it no longer had authority to detain him. The district court concluded that the imposition of bond as a condition of release was within the attorney general's authority under the statute, and Doan appealed.

On appeal, the court noted that the Supreme Court in Zadvydas found that under INA section 241, the INS could impose reasonable conditions on release and supervision, and that the violation of such conditions could result in further detention. The opinion also cited with approval the regulations that the attorney general promulgated to implement the statute, which expressly authorize imposition of a bond as a condition of release. 8 C.F.R. § 241.5(b). The Ninth Circuit distinguished Shrode v. Rowoldt, 213 F.2d 810 (8th Cir. 1954), which had found imposition of a bond not authorized by the INA, because the ruling predated the attorney general's regulation and the Supreme Court's interpretation of the statute in Zadvydas.

In upholding the attorney general's authority to impose bond, the court noted that "serious questions may arise concerning the reasonableness of the amount of bond if it has the effect of preventing an alien's release." In this case, however, the court held that there was no question concerning the reasonableness of the bond.

Doan v. INS, No. 01-56784 (9th Cir. Nov. 27, 2002).