Bolante, Jocelyn I. v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 07-2550
JOCELYN ISADA BOLANTE,
Petitioner,
v.

PETER D. KEISLER, Acting Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A 95 719 764.
____________
SUBMITTED AUGUST 23, 2007—DECIDED OCTOBER 31, 2007
____________

Before EASTERBROOK, Chief Judge, and POSNER and
KANNE, Circuit Judges.
POSNER, Circuit Judge. The petitioner is being held in
custody by the immigration authorities pending this
court’s review of the denial by the Board of Immigration
Appeals of his application for asylum and the Board’s
resulting order of removal. He has been in custody
since July 2, 2006, and he asks us to order him released
on bail. We have no authority to do so.
2 No. 07-2550

The right not to be subjected to excessive bail is con-
ferred by the Eighth Amendment and implemented, so
far as federal criminal defendants are concerned, in the
Bail Reform Act. 18 U.S.C. § 3142; see United States v.
Salerno, 481 U.S. 739, 753-54 (1987). The Eighth Amend-
ment’s bail clause does not say that a person detained by
the government is entitled to release on bail, only that he
may not be subjected to excessive bail as a condition of
release. Id. at 752. Yet the Supreme Court has suggested
that the bail clause requires that “the Government’s
proposed conditions of release or detention not be ‘exces-
sive’ in light of the perceived evil” from releasing the
person. Id. at 754. Otherwise the government could cir-
cumvent the bail clause simply by refusing to release
detainees on any condition. But Salerno was a criminal
case, and the Court has never held that persons detained
in civil proceedings, such as deportation (now called
removal) proceedings, are entitled to release on bail.
Carlson v. Landon, 342 U.S. 525, 545-46 (1952). When in
Zadvydas v. Davis, 533 U.S. 678 (2001), the Court held that
due process of law presumptively entitles an alien ordered
removed to be released from detention after six months
if no other country is willing to admit him, it said nothing
about bail or the bail clause. In Demore v. Hyung Joon Kim,
538 U.S. 310 (2003), in upholding the detention without
bail of aliens pending deportation on the basis of their
having committed crimes, the Court did not mention the
bail clause but instead, as in Zadvydas, based its analysis
solely on the due process clause.
It is likewise in the context of criminal prosecutions
that this court and other courts of appeals have held that
federal courts have inherent authority to allow petitioners
for federal habeas corpus to be released on bail. Cherek v.
No. 07-2550 3

United States, 767 F.2d 335, 337 (7th Cir. 1985) (“federal
district judges in habeas corpus and section 2255 proceed-
ings have inherent power to admit applicants to bail
pending the decision of their cases, but a power to be
exercised very sparingly”); Pfaff v. Wells, 648 F.2d 689,
693 (10th Cir. 1981); Ostrer v. United States, 584 F.2d 594,
596 n. 1 (2d Cir. 1978); Jago v. United States District Court,
570 F.2d 618 (6th Cir. 1978); In re Wainwright, 518 F.2d 173,
174 (5th Cir. 1975) (per curiam); Johnston v. Marsh, 227 F.2d
528, 531 (3d Cir. 1955). (The reason the power is “to be
exercised very sparingly” is that a petitioner for habeas
corpus, unlike a pretrial detainee, has already been con-
victed of a crime rather than having merely been charged.)
The opinion in the Jago case recounts the common law
origins of the power, and notes, as does the Johnston
opinion, that in Wright v. Henkel, 190 U.S. 40, 63 (1903), the
Supreme Court had said: “We are unwilling to hold that
the circuit courts possess no power in respect of admitting
to bail other than as specifically vested by statute.” It
would be surprising if they lacked the power in view
of Rule 23 of the Federal Rules of Appellate Procedure.
The rule authorizes the court of appeals to order the re-
lease with or without bail of a prisoner pending review
of the district court’s decision on his petition for habeas
corpus, whether that petition was a grant or a denial of
relief. See Nadarajah v. Gonzales, 443 F.3d 1069, 1083 (9th
Cir. 2006).
In Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001), the Second
Circuit (after an even more thorough canvass of the
precedents than the Jago opinion) took a bold further
step, and ruled that district courts have authority to re-
lease on bail, pending appeal from the denial of habeas
corpus relief, aliens detained pending removal. And now
4 No. 07-2550

it has taken the next and even bolder step and ruled that
the court of appeals has authority to order the release on
bail of persons detained while (as in the present case) a
petition for review of an order of removal is pending
before the court. Elkimya v. Department of Homeland Secu-
rity, 484 F.3d 151 (2d Cir. 2007). Rule 23 of the appellate
rules does not apply in such cases because the court of
appeals is not being asked to release a person pending
the appeal of a decision by a district court on his quest
for habeas corpus.
Inherent judicial authority to grant bail to persons who
have asked for relief in an application for habeas corpus
is a natural incident of habeas corpus, the vehicle by
which a person questions the government’s right to de-
tain him. A judge ought to be able to decide whether the
petitioner should be allowed to go free while his claim to
freedom is being adjudicated. When the petitioner is an
alien—in this case an illegal would-be immigrant, as we
shall see, seeking to alter his status by obtaining asy-
lum—asking for bail outside the habeas corpus setting,
the claim of an inherent authority to grant bail is more
questionable. In any event, an inherent judicial authority
is not an indefeasible authority. It is an exercise of a
court’s common law powers and thus, unlike a ruling
based on the Constitution, is subject to legislative curtail-
ment. See, e.g., United States v. Hasting, 461 U.S. 499 (1983);
United States v. Payner, 447 U.S. 727 (1980). (A ruling based
on the Constitution would be an exercise of delegated
rather than inherent judicial authority.) Even if in the
absence of legislation a federal court could grant bail to an
alien challenging a removal order, it cannot do so if
Congress has forbidden it. That point decides this case.
No. 07-2550 5

Section 1225(b)(1)(B)(ii) of Title 8 provides that “if the
[asylum] officer [who interviews an alien arriving in the
United States without a proper visa] determines at the
time of the interview that an alien has a credible fear of
persecution . . . the alien shall be detained for further
consideration of the application for asylum.” The Attorney
General can and often does release the alien on parole,
8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5, but his deci-
sion to do so is not judicially reviewable. 8 U.S.C.
§ 1252(a)(2)(B)(ii). To allow a court to admit such an
alien to bail while he is challenging a removal order
would be inconsistent with these provisions. None of
them was mentioned by the Second Circuit in the Elkimya
case (nor were the Supreme Court’s decisions in Zaduydas
and Demore mentioned). They should have been; they
were applicable to Elkimya even though, unlike the
petitioner in this case, he was a lawful permanent resident.
Section 1101(a)(13)(C)(ii) provides that a lawful permanent
resident “shall not be regarded as seeking an admission
into the United States for purposes of the immigration
laws unless the alien . . . has been absent from the United
States for a continuous period in excess of 180 days.”
Elkimya had been absent for four years when he at-
tempted to return to the United States—which means he
was not lawfully admitted upon his return, and which
thus supplied an independent basis (also overlooked by
the Second Circuit) for denying his release on bail—and
the release of our petitioner as well.
To explain, in Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953), the Supreme Court held that a law-
fully admitted alien who had left the country and been
detained by the immigration authorities at Ellis Island
when he tried to return had no right to be released. In
Zadvydas v. Davis, supra, 533 U.S. at 692-93, the decision
6 No. 07-2550

that placed limitations on the detention of aliens pending
removal, the Court distinguished Mezei on the ground
that since he had been excluded (in the current parlance
of immigration law, since he had not been lawfully ad-
mitted when he returned to this country from his
sojourn abroad), “his presence on Ellis Island did not
count as entry into the United States. Hence, he was
‘treated,’ for constitutional purposes, ‘as if stopped at the
border.’ ” Id. at 693, quoting Mezei, supra, 345 U.S. at 213.
Our petitioner is in the same position. He had a U.S. tourist
visa when he left the Philippines for the United States,
but our embassy in Manila revoked the visa before he
arrived at Los Angeles International Airport, and on ar-
rival he was detained and remains in detention. Thus,
just like Mezei, or for that matter Elkimya, he was not
lawfully admitted to the United States, 8 U.S.C.
1101(a)(13)(A), and so had no right to be released.
Because our decision creates an intercircuit conflict,
we have circulated it to the full court as required by our
circuit rule 40(e). Judge Ripple voted to hear the case en
banc; the remaining judges in regular active service
voted not to hear the case en banc.
The motion for bail is
DENIED.
A true Copy:
Teste:

_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—10-31-07