INS v. National Center for Immigrants' Rights, Inc.,
502 U.S. 183 (1991)

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No. 90-1090. Argued November 13, 1991-Decided December 16,1991

Section 242(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond containing conditions prescribed by the Attorney General. Respondent individuals and organizations filed suit in the District Court against petitioners, alleging that 8 CFR § 103.6(a) (2)(ii)-which is entitled "Condition against unauthorized employment" and generally requires that release bonds contain a "condition barring employment" pending a deportability determination-was invalid on its face and therefore could not be enforced even against aliens who may not lawfully accept employment in this country. Ultimately, the District Court held that the regulation was beyond the Attorney General's statutory authority. The Court of Appeals affirmed, ruling that the regulation barred all employment, whether authorized or unauthorized, and that the Attorney General exceeded his authority in promulgating it because the no-employment condition was not related to the purposes of the INA and the regulation did not provide for "individualized decisions" on the imposition of bond conditions as required by the statute.

Held: The regulation on its face is consistent with the Attorney General's statutory authority. Pp. 188-196.

(a) No "as-applied" challenges to the regulation nor any constitutional claims raised by respondents' initial complaint are before this Court. P.188.

(b) The regulation does not contemplate the inclusion of no-work conditions in bonds issued to aliens who are authorized to work. Reading the text's generic reference to "employment" as a reference to the "unauthorized employment" identified in the paragraph's title helps to resolve any ambiguity in the text's language. See, e. g., Mead Corp. v. Tilley, 490 U. S. 714, 723. Moreover, the agency's consistent interpretation of the regulation as applying only to unauthorized employment is due deference. This conclusion is further supported by the regulation's text, the agency's comments when the rule was promulgated, operating


instructions issued to Immigration and Naturalization Service (INS) personnel, and the absence of any evidence that INS has ever imposed the condition on any alien authorized to work. Pp. 189-191.

(c) The regulation is wholly consistent with the established concern of immigration law to preserve jobs for American workers and thus is squarely within the scope of the Attorney General's statutory authority. United States v. Witkovich, 353 U. S. 194; Carlson v. Landon, 342 U. S. 524, distinguished. Pp. 191-194.

(d) The regulation, when properly construed, and when viewed in the context of INS' administrative procedures-an initial informal determination regarding an alien's status, the right to seek discretionary relief from the INS and secure temporary authorization, and the right to seek prompt administrative and judicial review of bond conditionsprovides the individualized determinations contemplated in the statute. Pp. 194-196.

913 F.2d 1350, reversed and remanded.

STEVENS, J., delivered the opinion for a unanimous Court.

Stephen J. Marzen argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, Barbara L. Herwig, and John F. Daly.

Peter A. Schey argued the cause for respondents. With him on the brief were Michael Rubin and Robert Gibbs. *

JUSTICE STEVENS delivered the opinion of the Court. This case presents a narrow question of statutory construction. Section 242(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond "containing such conditions as the Attorney General may prescribe." 66 Stat. 208, as amended, 8 U. S. C.

*Briefs of amici curiae urging affirmance were filed for the American Bar Association by John J. Curtin, Jr., and Jonathan L. Abram; for the American Immigration Lawyers Association by Joshua Floum, Maureen Callahan, and Lawrence H. Rudnick; and for the International Human Rights Law Group by Nicholas W Fels and Steven M. Schneebaum.

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