(Concurring in part and dissenting in part)
I concur in so much of Judge Kearse’s opinion as holds that INS Commissioner Alan C. Nelson may be held liable for a denial of due process in unreasonably delaying the disposition of a petition for mitigation of forfeiture filed under 8 C.F.R. § 274.13. I also concur in the dismissal of the complaint with respect to District Director Benedict J. Ferro for the reason that there is no indication that he had any responsibility for the 65-day delay complained of by Johns. However, I must respectfully dissent from the affirmance of the dismissal of the complaint against Regional Commissioner Stanley E. McKinley. I would also expressly provide that remand be without prejudice to Johns’ amending his complaint to add as defendants the Assistant Attorney General, Criminal Division, U.S. Department of Justice, and the United States Attorney for the Western District of New York.
The proceedings here under review are governed by due process principles. See Von Neumann v. United States, 660 F.2d 1319 (9th Cir.1981), vacated and remanded, 462 U.S. 1101, 103 S.Ct. 2446, 77 L.Ed.2d 1328 (1983), on remand, Von Neu-mann v. United States, 729 F.2d 657 (9th Cir.1983). Johns was entitled to a decision on his petition for mitigation within a reasonable period of time. In my view the 65-day delay between Johns’ August 10, 1983, filing of his petition for mitigation and the Department of Justice’s October 14, 1983, disposition of that petition was, for the reasons stated at p. 1623 of Judge Kearse’s opinion, unconscionable under the undisputed circumstances and amounted to a denial of due process, particularly since Johns had mad& it clear by his letter of July 26, 1983, to the INS, his telephone conversation with INS regional office counsel on July 29, 1983, and the commencement of this action on August 3, 1983, that he was not contesting forfeiture but was seeking mitigation. The defendants have offered no plausible explanation for their long delay in disposing of the petition. On the contrary, the record reveals bureaucracy at its worst, with government officials relying on a confusing, internally inconsistent, Kafkaesque set of regulations as the ground for the otherwise inexplicable delay.
We have already made clear that such dilatory conduct is not to be countenanced. In Lee v. Thornton, 538 F.2d 27 (2d Cir.1976), we held that when a motor vehicle is seized by the U.S. Customs Service for forfeiture the government should, in view of the owner’s vital interest in the vehicle, which may be his only means of livelihood, act within 24 hours on a petition for mitigation. Id. at 33. The Ninth Circuit has likewise held that prompt action is essential. Von Neumann v. United States, supra, 729 F.2d at 659-60. As the court there observed:
“The final factor in the analysis is the prejudice to the individual caused by the delay. In addition to possible loss, of essential witnesses or evidence, a claimant may also be prejudiced by unanticipated, unrecoverable, expenses resulting from a seizure of his vehicle, sudden disruption of travel plans, inconvenience, or even peril, he thereby experiences.” Id. at 662.
In the present case there is evidence that Johns suffered serious prejudice from the delay. The INS was informed within days after the seizure that the seized vehicle was not only his source of livelihood as a cross-country trucker but his living quarters. If it were returned within a reasonably short time he might earn enough to pay his monthly installment obligation; otherwise it would be repossessed by the lienor. More important, if he received a *1207prompt decision, either way, on his petition for mitigation he would be able to adopt a living plan accordingly. As it turned out he was left in limbo for 65 days, making it all the more difficult to meet the mitigation terms (specifically the $5,000 fine) eventually granted.
The responsibility for the delay rests with some or all of the government officials charged with handling and acting upon Johns’ petition. The INS is part of the Department of Justice, 8 U.S.C. § 1551. Ultimately the Attorney General is responsible under the Immigration and Naturalization Act for immigration and naturalization policies, 8 U.S.C. § 1103, and pursuant to 28 U.S.C. § 509 has delegated to the INS Commissioner the authority to administer the Act, 8 C.F.R. § 100.2(a), 28 C.F.R. § 0.105. Regional Commissioners and District Directors are in turn responsible for administration and enforcement of these laws and regulations within their geographic areas, subject to the Commissioner’s general supervision, 8 C.F.R. § 100.-2(d) and (e).
There is no dispute about the authority of the INS to have Johns’ vehicle, admittedly worth more than $10,000, declared forfeited in a judicial proceeding. 8 C.F.R. § 274.12. Under 8 C.F.R. § 274.13(a) Johns had the right to apply to the Attorney General for mitigation of the forfeiture. However, § 274.13(d) authorizes the Regional Commissioner to deny mitigation relief and § 274.15(a) provides that “[i]n addition to discretionary authority to grant relief by way of complete remission of forfeiture, the regional commissioner may mitigate forfeitures of seized conveyances.” (Emphasis supplied). Section 274.19, however, adds complexity to the scheme by providing:
“(a) If the petition involves a case which has been referred to the U.S. Attorney for institution of judicial forfeiture, the regional commissioner shall transmit the petition to the U.S. Attorney for the judicial district in which the seizure occurred____
“(b) The regional commissioner shall initiate a Service investigation into the merits of every petition transmitted to the U.S. Attorney, and shall, if requested, promptly submit a report to the U.S. Attorney.
“(c) Upon receipt of a petition and a copy of the investigation, the United States Attorney shall forward a copy of the petition, the report, and a recommendation as to the grant or denial of the petition to the Assistant Attorney General, Criminal Division, Department of Justice for adjudication.” 8 C.F.R. § 274.19.
These regulations are inconsistent to the extent that they do not clearly fix the responsibility, as between the Regional Commissioner and the Assistant Attorney General, Criminal Division, for mitigating forfeitures of seized conveyances. Sections 274.13(d) and 274.15(a) appear to delegate that power to the Regional Commissioner whereas § 274.19(b) and (c) seem to limit the Regional Commissioner’s power to that of investigating and recommending, with the ultimate adjudication to be made by the Assistant Attorney General, Criminal Division. The regulations are also unclear as to how a petition for mitigation filed with the Attorney General under § 274.13(a) turns up in the hands of the Regional Commissioner under § 274.19(a), which directs the latter in a judicial forfeiture case (which is the type involved here) to “transmit the petition to the U.S. Attorney.” The latter regulation would indicate that the starting point should be with the Regional Commissioner in a petition such a.s the present one.
Regardless how these confusing regulations are interpreted, however, it is clear that delay in the processing of the present petition for mitigation might be attributable to the Regional Commissioner McKinley. If, for instance, he took an excessive amount of time to conduct the investigation required of him by § 274.19(b) he would be responsible in part for the denial of due process in the present case. The same, of course, could be true of a U.S. Attorney or *1208of the Assistant Attorney General, Criminal Division.
For these reasons, I would reverse the order dismissing the complaint as to Regional Commissioner McKinley and provide that the remand be without prejudice to Johns’ right to add the Assistant Attorney General, Criminal Division and the U.S. Attorney as defendants.1
. The reinstatement of the complaint does not, of course, affect defendant Nelson’s right to obtain an adjudication of his affirmative defense of immunity. See Harlow v. Fitzgerald, 457 U.S. 800. 102 S.Ct. 2727. 73 L.Ed.2d 396 (1982). Nor would it preclude any added defendants (e.g., the Assistant Attorney General and the U.S. Attorney) from pleading immunity as a defense and obtaining such an adjudication. Id. at 815. 102 S.Ct. at 2737.