IMMIGRATION AND NATURALIZATION SERVICE, ET AL., PETITIONERS V. NATIONAL CENTER FOR IMMIGRANTS' RIGHTS, ET AL. No. 86-1207 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the Immigration and Naturalization Service, its Commissioner Alan C. Nelson, and Attorney General Edwin Meese III, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. PARTIES TO THE PROCEEDING Petitioners, defendants below, are the Immigration and Naturalization Service; Alan C. Nelson, Commissioner of the Immigration and Naturalization Service; and Edwin Meese III, Attorney General of the United States. Respondents, plaintiffs below, are National Center for Immigrants' Rights, Inc., American Friends Service Committee, El Rescate ("The Rescue"), Central American Refugee Center, El Concilio Manzo, Willamette Valley Immigration Project, Southern California Ecumenical Council, Centro Presente, Inc., Tucson Ecumenical Council, Hermandad Nacional Mexicana, Coalition for Visas and Rights for the Undocumented, Centro Para Immigrantes de Houston, International Institute of Boston, Center for Immigrants Rights, Imperial Valley Immigration Project, United Automobile, Aerospace and Agricultural Implement Workers of America Local 645, Santos Adalberto Lopez-Duran, Julio Fernando Lorine-Garcia, Raphael Antonio Perez, Raul Armando Marroquin, Ricardo Delgado Osegueda (or Oseguena), Mirza Odilia Hernandez Diaz, Maximiliano Martinez Oriana (or Orellana), Rosa Maria Tovar Rivas (or Tobar Rivas), Dennis Gillermo Vanegas, Antonio Mendoza Romero, Migel (or Miguel) Angel Gomez Vasquez (or Gomez-Vasquez), Fidel Angel Henriquez Duran, Daniel Antonio Garcia Reyes, Ana Berta Martinez, Dionisio Navarette Marlos (or Merlos), and Jane Doe I (an alien who claims to be deterred from filing for benefits with INS because of fear that the regulations at issue would result in her indefinite detention). TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Statutory and regulatory provisions involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 791 F.2d 1351. The opinion of the district court (App., infra, 11a-25a) is reported at 644 F. Supp. 5. A prior opinion of the court of appeals affirming the issuance of a preliminary injunction (App., infra, 27a-39a) is reported at 743 F.2d 1365. The district court's prior opinion (App., infra, 40a-49a) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 13, 1986. A petition for rehearing with suggestion for rehearing en banc was denied on September 23, 1986 (App., infra, 26a). On December 10, 1986, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including January 21, 1987. STATUTORY AND REGULATORY PROVISIONS INVOLVED Sections 103(a), 212(a)(14), 241(a)(1), and 242(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1103(a), 1182(a)(14), 1251(a)(1), and 1252(a); and 8 C.F.R. 103.6 and 109.1 (1983) and the proposed amendments, 48 Fed. Reg. 51142-51144 (1983), are reproduced at App., infra, 50a-74a. QUESTION PRESENTED Whether 8 U.S.C. 1252(a), which allows the Attorney General, pending determination of deportability of an alien, to release the alien under bond "containing such conditions as the Attorney General may prescribe," permits a condition that forbids the alien to engage in unauthorized employment Ending determination of deportability. STATEMENT 1. a. The Immigration and Nationality Act of 1952, 8 U.S.C. (& Supp. III) 1101 et seq. (the Act or INA), is a comprehensive statutory scheme intended to cover all aspects of admissions of aliens to the United States, whether for business or pleasure, or for seeking permanent resident status. See H.R. Rep. 1365, 82d Cong., 2d Sess. 27 (1952). See generally Elkins v. Moreno, 435 U.S. 647, 664-665 (1978). In particular, the statute creates an elaborate scheme that conditions entry of aliens into the United States on compliance with limitations directly related to employment in the United States, thus reflecting one of Congress's consistent policies to provide for the protection of American labor against an influx of aliens entering the United States for the purpose of performing skilled or unskilled labor where the economy of individual localities is not capable of absorbing them at the time they desire to enter this country. H.R. Rep. 1365, supra, at 51. To implement this policy, the Act conditions entry of each immigrant alien who intends to work in the United States, with the exception of close relatives of U.S. citizens and lawful permanent resident aliens, /1/ on the alien's obtaining from the Secretary of Labor a certificate entitling him or her to work in the United States (8 U.S.C. 1182(a)(14)): (a) Except as otherwise provided in this chapter, the following classes shall be ineligible to receive visas and shall be excluded from admission into the United States: * * * * * (14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, qualified * * *, and available at the place where the alien is to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. Congress's intent to protect American labor has been expressed repeatedly, and the protections have been increased in succeeding amendments to the Act. In 1965, Congress shifted primary responsibility for obtaining certification from the Secretary of Labor to the immigrant seeking such clearance. Pub. L. No. 89-236, Section 10(a), 79 State. 917. One stated intent of the amendment was to strengthen safeguards for American workers: "Simultaneous with the abolition of national quotas, controls to protect the American labor market from an influx of both skilled and unskilled foreign labor are strengthened." See S. Rep. 748, 89th Cong., 1st Sess. 15 (1965). In 1976, in eliminating differences between the application of the labor certification provision to aliens from the Eastern and Western Hemispheres, Congress again recognized that "(t)he labor certification provision set forth in (8 U.S.C. 1182(a)(14)) is intended to protect the domestic labor force." H.R. Rep. 94-1553, 94th Cong., 2d Sess. 10 (1976); see Pub. L. No. 94-571, Section 5, 90 Stat. 2705. Congress also modified the provision authorizing adjustment of status from nonimmigrant to permanent resident alien by providing, in 8 U.S.C. 1255(c)(2), that aliens who accept unauthorized employment before filing their adjustment applications are ineligible for adjustment of status. Pub. L. No. 94-571, Section 6, 90 Stat. 2705-2706. /2/ By this modification, Congress explained that it was adding a means to enforce a condition on entry that already applied to all aliens, i.e., that they not engage in unauthorized employment: "The Committee believes that (8 U.S.C. 1255 (c)(2)) would deter many nonimmigrants from violating the conditions of their admission by obtaining unauthorized employment." H.R. Rep. 94-1553, supra, at 12. Aliens who enter the United States for the purpose of engaging in unauthorized employment are excludable and deportable. Aliens who violate the terms and conditions of their entry by engaging in unauthorized employment are deportable. 8 U.S.C. 1182(a)(14), 1251(a)(1) and (9); 8 C.F.R. 214.1 (e). b. The Act provides that the Immigration and Naturalization Service (INS) may arrest and detain deportable aliens for the purpose of effecting deportation. 8 U.S.C. 1251(a), 1252(a). In addition, 8 U.S.C. 1252(a) provides that the alien may be retained in custody or released on bond or conditional parole pending a determination of deportability and that the Attorney General may prescribe conditions on the release bond. Before 1950, the statute permitted release on bond "conditioned that such alien be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody" (8 U.S.C. (1940 ed.) 156). In 1949, Congress considered, but did not enact, a bill (H.R. 10, 81st Cong., 1st Sess.) that was intended, among other things, to make it easier for the Attorney General to detain some aliens without bond (see generally Carlson v. Landon, 342 U.S. 524, 538-541 (1952)). That bill would also have amended former 8 U.S.C. 156 to provide that, in the case of release on bond, it would be "among the conditions of any such bond * * * that the alien shall be produced, or will produce himself, when required to do so for the purpose of defending against the charge or charges under which he was taken into custody." The reports of both Houses of Congress on this bill stated (H.R. Rep. 1192, 81st Cong., 1st Sess. 6 (1949); S. Rep. 2239, 81st Cong., 2d Sess. 5 (1950) (emphasis added)): The bill further provides that among the conditions of any bond exacted, * * * there shall be a condition that the alien shall be produced when required for defense against the charges upon which he appears to be deportable * * *. These provisions, of course, enumerate only one of the conditions which is mandatory in the bond * * *. The bill intends that the Attorney General shall have full discretion in imposing any other conditions or terms in the bond * * * which he may see fit to include. Thus, a man released on bond might have as a condition of the bond that he also be subject to make periodic reports to the immigration officials as to his whereabouts and furnish other desired information. Or a bond might provide as one of its conditions that upon demand by the Attorney General the existing bond shall be surrendered and a new bond in greater or lesser amount or other conditions shall be furnished. The bill intends that the Attorney General shall have untrammeled discretion to impose such conditions or terms as he sees fit in releasing an alien under bond * * * pending final determination of the deportability of the alien * * *. /3/ Despite the failure of H.R. 10 to pass, it was, as the Court recognized in Carlson v. Landon, 342 U.S. at 538, the progenitor of Section 23 of the Internal Security Act of 1950, ch. 1024, 64 Stat. 1011. Section 23 specifically amended former 8 U.S.C. 156 to contain the exact language that H.R. 10 would have enacted: "It shall be among the conditions of any such bond * * * that the alien shall be produced, or will produce himself when required to do so for the purpose of defending against the charge or charges under which he was taken into custody * * *." In 1952, when Congress comprehensively revised the immigration laws (ch. 477, 66 Stat. 163), former 8 U.S.C. 156 was replaced by Section 242(a) of the new Act, now codified as 8 U.S.C. 1252(a). That section provides that an alien may be released on bond "with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe." The language specifying that "(i)t shall be among the conditions" that the alien appear was not carried into the statute, but the legislative history indicates that Section 242(a), "in general, follows the procedure established by section 23 of the Subversive Activities Control Act of 1950" (H.R. Rep. 1365, 82d Cong., 2d Sess. 57 (1952)). /4/ 2. Before INS promulgated the regulation challenged in this action, the regulation governing release on bond pending deportation proceedings permitted release to be conditioned on the alien's refraining from unauthorized employment, but only after a cumbersome procedure whereby the district director had to obtain prior approval of an INS regional commissioner. 8 C.F.R. 103.6(a)(2)(ii) (1983). In March 1983, INS proposed for comment two changes to the regulations governing release on bond. See 48 Fed. Reg. 8820-8821 (1983). The proposed changes were intended to simplify the procedure for conditioning release on bond, by including a condition prohibiting release on bond, by including a condition prohibiting unauthorized employment in every "appearance and delivery bond in connection with a deportation proceeding or bond posted for release of an alien in exclusion proceedings, unless upon application by the alien the District Director determines that employment is appropriate" (ibid.). INS also proposed to give the district directors general authority to grant any alien released on bond temporary employment authorization if justified by certain specified factors. /5/ INS explained that the revisions were proposed to further the policy of the Act to protect American workers (48 Fed. Reg. 8820 (1983)): These revisions are consistent with the general principle that employment of aliens in the United States is to be strictly controlled to safeguard the interest of U.S. citizens and permanent resident aliens. Following receipt of many comments from the public, INS published its final regulation in November 1983 with an explanation addressing the principal concerns raised in the comments. 48 Fed. Reg. 51142-51144 (1983); App., infra, 50a-62a. Responding to the most significant misapprehension expressed, INS explained that the regulation would not diminish any employment authorization that an alien already had because it barred only unauthorized employment. Thus, it would not affect citizens and permanent resident aliens who have authorization to work. In addition, the regulation would not affect bona fide aslyum applicants who had filed nonfrivolous applications since a different regulation (8 C.F.R. Pt. 208; see also 8 C.F.R. 109.1(b)(2)) governs employment authorization for such persons. The primary effect of the regulation was to place on the alien who wished to avoid a no-unauthorized-work rider the burden of seeking employment authorization from the district director. 48 Fed. Reg. 51143 (1983). /6/ By placing the burden of seeking work authorization on the alien, INS intended to remove an economic incentive for illegal entry for the purpose of engaging in unlawful employment and to remove an incentive to delay deportation proceedings when an alien is apprehended. Acknowledging that fewer bonds might be written and that more aliens might be detained in custody under the new regulation, INS stated that these were acceptable costs in the effort to safeguard employment for U.S. citizens and permanent resident aliens. Ibid. 3. On December 6, 1983, one day before the new regulations were to take effect, plaintiffs filed this action challenging the validity of the regulations on a variety of statutory and constitutional theories. /7/ Ten days later the district court issued a nationwide preliminary injunction prohibiting implementation of the regulations (App., infra, 40a-49a). The basis for this ruling was that plaintiffs had a "fair chance" of success on their arguments that the statute, 8 U.S.C. 1252(a), does not authorize a condition on release bonds that is unrelated to ensuring the alien's appearance and that the regulations deprive aliens of their due process rights by denying them the right to work until deportability is finally determined (App., infra, 46a). On INS's appeal from the grant of the preliminary injunction, the court of appeals affirmed in part and reversed in part and remanded the case to the district court (App., infra, 27a-39a). The court held that a nationwide injunction was improper in the absence of class certification and held that the scope of relief must be limited to the named plaintiffs unless the district court, on remand, certified a class. The court of appeals agreed with the district court, however, that the plaintiffs had a "fair chance" of succeeding on the merits of their statutory argument and affirmed the injunction. In support of this assessment of the merits, the court asserted that the Act is only "'peripheral(ly) concern(ed) with employment of illegal entrants'" (id. at 36a) and that reference to protecting the American workforce could not, therefore, be a legislative scheme justifying imposition of the "no-unauthorized-work" release condition. In addition, the court of appeals stated that the regulation "does away with individualized determinations" (id. at 28a) and concluded that "(t)he discretion of the Attorney General to impose a condition on a particularized showing in an individual case is quite different from the authority to do so by a blanket rule" (id. at 36a-37a). On remand, the district court certified a nationwide class and entered a nationwide permanent injunction (App., infra, 11a-25a). The sole ground for the district court's ruling was that the regulation exceeds the statutory authority granted in 8 U.S.C. 1252(a) to condition release on bond (App., infra, 14a, 25a). Although the court acknowledged that the condition prohibiting unauthorized employment does "further the broad purposes of the Immigration and Nationality Act" (id. at 15a), it nevertheless held that bond conditions must be limited to the sole purpose of ensuring the appearance of the alien at deportation proceedings (id. at 18a-19a, 22a-23a). The court also acknowledged that the plain language of the statute "appears on its face to grant a great deal of discretion to the Attorney General in his decision on whether to release an alien under bond" (id. at 17a), but the court decided that the plain language must be construed in light of Section 23 of the Internal Security Act of 1950 and its legislative history. Looking to the examples of bond conditions discussed in the legislative history of Section 23, the district court concluded that, because the only examples provided related to ensuring appearance, the Attorney General's discretion must be limited to such conditions (App., infra, 17a-19a). The district court refused to accord deference to the Attorney General's own interpretation of the statutory provision in In re Toscano-Rivas, 14 I & N. Dec. 550 (A.G. 1974), on the ground that it did "not find Toscano(-Rivas) persuasive, especially in light of the ambivalent language which permeates that case" (App., infra, 19a). Repeating the statement of the court of appeals that the Act is only "'"peripheral(ly) concern(ed) with employment of illegal entrants,"'" the district court held that "the INA cannot serve as the 'legislative scheme' which authorizes the Attorney General, based upon the purpose of the protection of the domestic labor market, to impose no-work conditions in appearance and delivery bonds" (id. at 22a). The court also stated that the regulation "inherently precludes any individualized determination" (id. at 15a) and held that "the discretion of the Attorney General does not extend to the blanket imposition of a no-work condition on all aliens who are released on bond" (id. at 25a). /8/ The court of appeals affirmed (App., infra, 1a-10a). Like the district court, the court of appeals acknowledged the breadth of the statutory language, but held that "legislative history, prior legislation, and case law limit the allowable conditions to those that tend to insure the appearance of the alien in future proceedings" (id. at 7a). The only support given for the court's statement is an observation that the examples of conditions in the legislative history relate to the Attorney General's ability to "maintain contact with and control over aliens" (id. at 7a-8a). The court reiterated its view that the Act is not primarily concerned with employment of aliens and that such a purpose, therefore, would not support the no-unauthorized-work condition on release (id. at 9a-10a). The court of appeals also endorsed the district court's reasoning that the Attorney General must proceed by "individualized determinations rather than the imposition of a blanket condition" (id. at 10a). REASONS FOR GRANTING THE PETITION The court of appeals has affirmed a nationwide injunction, thus "foreclosing (INS from) adjudication by a number of different courts and judges" (Califano v. Yamasaki, 442 U.S. 682, 702 (1979)) and forcing INS to seek the Court's review without the benefit of additional consideration in the lower courts. There will be no other opportunity to review this decision. In addition, the decision has considerable practical significance and is legally erroneous. 1. It cannot seriously be disputed that "(o)ne of the main reasons (aliens) come (to the United States illegally) -- perhaps the main reason -- is to seek employment" (INS v. Delgado, 466 U.S. 210, 223 (1984) (Powell, J., concurring)), and the Court has recognized that "(a) primary purpose in restricting immigration is to preserve jobs for American workers" (Sure-Tan, Inc. v. NRLB, 467 U.S. 883, 893 (1984)). In its effort to implement the alien employment restrictions in the Act, INS is continually seeking reasonable enforcement mechanisms that will discourage illegal immigration by removing the economic incentive for aliens to enter or remain in this country without proper authorization. Justice Powell has observed that the government interest in efficient techniques to diminish that economic incentive can be "enormous" (Delgado, 466 U.S. at 223 (Powell, J., concurring)). The regulation invalidated by the court of appeals is one such enforcement mechanism. The regulation requires an alien who is apprehended on probable cause to believe that he or she is unlawfully in this country, and who is released on bond while awaiting a determination of deportability, to refrain from engaging in unauthorized employment. By doing so, the regulation imposes no obligations on such an alien other than the one that already exists because of the prohibition on unauthorized employment in the Act. /9/ What it adds is not a new obligation but a new sanction -- revocation of bond. For aliens who have been apprehended and who have no valid defense in the deportation proceedings, no other effective sanction exists under present law, since the usual sanction for engaging in unauthorized employment -- deportation -- has become a foregone conclusion by the time they are released on bond. In a variety of contexts related to the enforcement of alien employment restrictions, the Court has recognized the importance to the government of similar reasonable enforcement mechanisms. For example, in INS v. Delgado, supra, the Court rejected a Fourth Amendment challenge to factory surveys that INS conducted pursuant to warrants based on probable cause to believe that illegal aliens were employed on the premises. As Justice Powell observed, factory surveys "enabl(e) the INS with relatively few agents to diminish the incentive for the dangerous passage across the border and to apprehend large numbers of those who come. Clearly, the Government interest in this enforcement technique is enormous." 466 U.S. at 223 (concurring opinion) (footnote omitted). In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the Court sustained the applicability of the National Labor Relations Act's protections against unfair employment practices to undocumented alien employees. The Court reasoned (467 U.S. at 893-894) that (a)pplication of the NLRA helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws. The effect of the challenged regulation is similar to the effect of factory surveys or of applying the NLRA to undocumented alien workers: it is designed to discourage entry for the purpose of engaging in unauthoirzed employment and to discourage aliens who are apprehended (on probable cause of unlawful presence in this country) from delaying determinations of deportability. Without the "no-unauthorized-work" release condition, the alien has a strong incentive to prolong deportation proceedings and delay a final determination while he continues to work. /10/ Given its limited resources, it makes sound administrative sense for INS to be able to impose a general condition on release that, in effect, commands aliens not to violate the law by working without authorization. The regulation simply shifts to an apprehended alien the burden of demonstrating that he has received authorization to engage in employment or places on such an alien the responsibility to obtain employment authorization. /11/ It is significant that the regulation does not eliminate any rights that an alien may already have to engage in employment because the condition prohibits only unauthorized employment. Indeed, as part of the proposed amendment to the regulation, INS included a new, additional opportunity for an apprehended alien to apply to a district director for employment authorization. Furthermore, the condition on release is not a determination, or even a presumption, of deportability; rather it is a presumption that the alien has no authorization to work regardless of his or her status. If the alien is within a status entitled to work, or has obtained authorization from the district director, proof of that fact should be readily available, /12/ and the condition will not apply. In cases where the alien applies to the district director for work authorization, or where the alien claims that he already has such authorization, or that he has filed a bona fide application for asylum, individualized determinations are made as to those claims. The regulation is, therefore, fully consistent with the objectives of the INA and with decisions of this Court upholding other efforts to further those objectives. Used in tandem with enforcement techniques the Court has already sanctioned, and in tandem with the employer sanction provisions of the recently enacted Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, Section 101, 100 State. 3360, this regulation significantly enhances INS's enforcement efforts and furthers the goal of discouraging illegal immigration. The lower courts' invalidation, on a nationwide basis, of the no-unauthorized-work condition thus deprives INS of an important mechanism to enforce alien employment restrictions in the Act. 2. There is no proper basis for the holding that the invalidated regulation goes beyond the statutory authority granted to the Attorney General. The statutory language, legislative history, and longstanding administrative interpretation all contradict the ruling of the court of appeals that the only permissible purpose of bond conditions is to ensure appearance. Moreover, because an alien may demonstrate that he has work authorization or apply to the district director for such authorization, the courts below have not accurately characterized the regulation as precluding individual determinations. a. The sole question in this case is one of statutory interpretation. Two statutory provisions are pertinent, and both authorize the condition at issue. The first, 8 U.S.C. 1252(a), is specifically concerned with the apprehension and detention of aliens pending deportation proceedings. The second, 8 U.S.C. 1103(a), generally empowers the Attorney General to administer and enforce the Act and other laws relating to immigration of aliens. Section 242(a), 8 U.S.C. 1252(a), provides (emphasis added): Pending a determination on deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody. Any such alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (1) be continued in custody; or (2) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (3) be released on conditional parole. But such bond or parole, whether heretofore or hereafter authorized, may be revoked at any time by the Attorney General, in his discretion, and the alien may be returned to custody under the warrant which initiated the proceedings against him and detained until final determination of his deportability. Reference to the broad powers contained in Section 103(a) of the Act, 8 U.S.C. 1103(a), reinforces the wide discretion Congress intended to confer on the Attorney General to administer and enforce the Act (emphasis added): (a) The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens * * *. He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such in(s)tructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter * * *. This Court repeatedly has stated that the starting point for interpreting a statute is "the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). See also Department of Transportation v. Paralyzed Veterans of America, No. 85-289 (June 27, 1986), slip op. 6; Northwest Airlines v. Transport Workers, 451 U.S. 77, 91 (1981); Steadman v. SEC, 450 U.S. 91, 97 (1981). The courts "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 (1984). "Absent a clearly expressed legislative intent to the contrary, (the statutory) language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). This principle applies to the INA, no less than to any other Act of Congress. See INS v. Hector, No. 86-21 (Nov. 17, 1986) (per curiam); INS v. Phinpathya, 464 U.S. 183 (1984). The court of appeals made only a passing nod at the language of the statute before holding that it did not mean what it said. Despite acknowledging that the plain language of the Immigration and Nationality Act "appears to grant wide discretion to the Attorney General" (App., infra, 7a) to impose conditions on the release bond of an alien, the court of appeals held that the no-unauthorized-work conditions at issue here is beyond that statutory authority. In the view of the court of appeals, the only conditions that the Attorney General may impose are those that are directly related to ensuring the alien's appearance at deportation proceedings. There is no language in the statute that limits the Attorney General's discretion or indicates that the sole concern is with the alien's appearance at subsequent proceedings. Section 242(a) expressly gives the Attorney General discretion to retain the alien in custody, or to release him on bond, with or without conditions, and to revoke the bond. Since it is generally the purpose of a bond to ensure appearance, there would have been no point to the explicit authority to impose other conditions in addition to the mandatory appearance condition. Congress certainly knows how to write a statute that limits the permissible purposes of bonds. For example, the provisions governing bond in criminal cases specifically enumerate both the permissible conditions of release and the purpose to be served by those conditions (18 U.S.C. (Supp. II) 3142(c), (g), and (h); see also 18 U.S.C. 3146 (repealed)). /13/ In the very context of release on bond pending deportation proceedings, Congress once wrote a statute that unambiguously limited the allowable conditions to those designed to ensure appearance (8 U.S.C. (1940 ed.) 156), but that statute has been repealed in favor of the present provision. The broad language of Section 242(a) must mean that Congress intended the Attorney General to have wider authority to impose any conditions reasonably related to the broader purposes of the Act. Under both Section 242(a) and Section 103(a) the Attorney General has wide discretion to impose a condition such as the no-unauthorized-employment rider on release bonds. Because that condition forbids only unauthorized employment, which is already prohibited by the Act, it fits well within the Attorney General's authority to enforce the immigration laws (as well as the laws in general). b. Without explaining why it was necessary to look beyond the plain, unambiguous language of the statute, the court of appeals purported to justify its limitation on the Attorney General's discretion by referring to the legislative history of the bond provision. We submit, however, that the legislative history provides no basis for departing from the plain language of the statute and, indeed, strongly confirms that language. As explained above, ch. 1024, Section 23, 64 Stat. 1011, which became what is not 8 U.S.C. 1252(a), was originally proposed in H.R. 10, a bill that did not pass. The language of H.R. 10, however, was incorporated in Section 23, and there is no dispute that the relevant legislative history is contained in the reports accompanying H.R. 10; indeed, it is these reports on which the courts below relied. As indicated in the relevant passage (quoted at page 6, supra), the reports signal a clear congressional intent to give the Attorney General "full discretion" and "untrammeled authority" to impose conditions other than a condition that the alien be produced for deportation proceedings. The condition requiring the alien to appear is not the only permissible condition but instead a mandatory condition that "shall be among the conditions of any such bond" (64 Stat. 1011). It is difficult to imagine how Congress could have been any more explicit in stating its intent to grant the Attorney General power to decide on bond conditions, whether or not specifically contemplated by Congress and whether or not approved by the courts. Yet the courts below ignored the express affirmative language and looked instead to an illustrative list of conditions that might be imposed, including periodic reporting and furnishing information of the alien's whereabouts. They then read those examples as a limitation on the broad grant of discretion to impose conditions on release. Although it is true that the examples contained the legislative history relate to ensuring appearance, there is absolutely no basis for reading those examples as a limitation on the express language of the statute or the surrounding legislative history. Nothing in the report indicates that the examples were intended to be exclusive or limiting. Indeed, because Congress expressly mandated a condition ensuring appearance, it may have provided examples related to that compulstory condition and elected not to illustrate further what other kinds of conditions the Attorney General might "see fit to include." H.R. Rep. 1192, 81st Cong., 1st Sess. 6 (1949); S. Rep. 2239, 81st Cong., 2d Sess. 5 (1950). A mere list of examples of conditions cannot override the explicit language of the reports that "(t)he bill intends that the Attorney General shall have full discretion in imposing any other conditions or terms in the bond or parole agreement which he may see fit to include" and "(t)he bill intends that the Attorney General shall have untrammeled authority to impose such conditions or terms as he sees fit in releasing an alien under bond or conditional parole pending final determination of the deportability of the alien" (ibid.). c. The court of appeals failed to accord any deference to the opinion of the Attorney General that the INA permits a no-unauthorized-work condition on release bonds. In citing In re Toscano-Rivas, 14 I. & N. Dec. 550 (A.G. 1974), solely for the proposition that the Attorney General "has recognized the need for individualzied determinations" (App., infra, 10a), the court of appeals totally ignored the significance of the Attorney General's opinion affirming his authority, under both 8 U.S.C. 1252(a) and 8 U.S.C. 1103(a), to impose a rider on release bonds prohibiting unauthorized employment (14 I. & N. Dec. at 556). The failure of the court of appeals even to acknowledge the longstanding position of the Attorney General that the statute authorizes such a condition does not accord the proper deference to the administrative official charged with implementing and enforcing the Act. See INS v. Jong Ha Wang, 450 U.S. 139, 144-145 (1981); Chevron U.S.A. Inc. v. NRDC, 467 U.S. at 843-845; United States v. Boyle, 469 U.S. 241, 246 n.4 (1985); Northeast Bancorp Inc. v. Board of Governors, 472 U.S. 159, 168 (1985); United States v. Riverside Bayview Homes, Inc., No. 84-701 (Dec. 4, 1985), slip op. 9-10, 17; Young v. Community Nutrition Institute, No. 85-664 (June 17, 1986) slip op. 5-6. 3. Despite holding that the statute does not authorize a "no-work" condition on bond because that condition is unrelated to ensuring appearance, the court of appeals and the district court nevertheless acknowledged that in some cases a "no-unauthorized-work" condition on bond might be appropriate (App. infra, 10a, 25a). They rejected the 1983 regulations, however, as insufficiently related to the purposes of the Act and as an impermissible "blanket" condition. The internal inconsistency in the opinions of both lower courts appears to result from several errors, both factual and legal. To begin with, as explained above, the regulation does not "(do) away with individualized determinations" (App., infra. 28a). Instead, it presumes that an apprehended alien is not authorized to work and shifts to the alien the burden of seeking work authorization or demonstrating that he already has such authorization. Once the alien initiates this process, an individualized determination of the condition's applicability to that alien follows. /14/ The court of appeals also erred in attempting to distinguish Carlson v. Landon, 342 U.S. 524 (1952), in which the Court rejected an argument similar to that made in this case. It was argued in Carlson that, under the Internal Security Act of 1950, the Attorney General could exercise his discretion to deny bail altogether only when necessary to ensure appearance at a deportation hearing. The Court, however, held that "the discretion as to bail in the Attorney General was certainly broad enough to justify his detention of all these parties without bail as a menace to the public interest" (342 U.S. at 541). The appropriate limitation on the Attorney General's exercise of discretion was simply that he "must justify his refusal of bail by reference to the legislative scheme to eradicate the evils of communist activity" (342 U.S. at 543). If the Attorney General's discretion is wide enough to allow him to deny bail altogether "by reference to the legislative scheme," it follows a fortiori that the broad language of Section 242(a) and its legislative history permits the Attorney General to impose conditions that further the purposes of the immigration laws. The Attorney General so held in In re Toscano-Rivas, supra. /15/ The court of appeals responded to these points (App., infra, 9a) by replying on an out-of-context remark in De Canas v. Bica, 424 U.S. 351, 360 (1976), and Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984), that "(t)he INA evinces 'at best evidence of peripheral concern with employment of illegal entrants.'" The court chose to rely on that isolated statement rather than following, or even acknowledging, the more pertinent statement by this Court that "(a) primary purpose in restricting immigration is to preserve jobs for American workers" (Sure-Tan, Inc. v. NLRB, 467 U.S. at 893) or the statement by the Attorney General that "(i)t is generally agreed that a basic purpose of the immigration laws is to protect against displacement of workers in the United States" (In re Toscano-Rivas, 14 I. & N. Dec. at 555 (footnote omitted)). /16/ The holding of the court of appeals that this legislative purpose could not support imposition of the unauthorized-employment prohibition reflects its failure to examine the results the Court reached in De Canas and Sure-Tan, and in Delgado, as well as its superficial treatment of the legislative history and structure of the INA. As we have discussed above, a central focus of the Act's elaborate scheme governing admission of aliens to this country is the protection of the American workforce. The legislative history leaves no doubt that protection of legal resident workers was a primary purpose of the legislation and of various amendments. /17/ In De Canas, the Court held that the INA did not preempt a state law that prohibited knowing employment of unlawful aliens where such employment would adversely affect lawful permanent residents (424 U.S. at 359). Read in context, the Court's statement about the Act's "peripheral concern" with the employment of illegal entrants only means that the INA would not preclude the states from sharing in the regulation of employer-employee relationships. /18/ Similarly, in Sure-Tan, the Court held that applying the protection of the NLRA to unauthorized alien employees would eliminate an economic incentive for employers to hire such unauthorized aliens to the detriment of legal resident workers. In turn, there would be less demand for illegal alien employees and thus less incentive for aliens to enter the country for the purpose of engaging in unauthorized employment. The Court's holding hardly evinces a peripheral concern with employment of illegal aliens. The court of appeals has erred fundamentally in misconstruing the Act. That error has led it to the further error of invalidating a reasonable and important enforcement mechanism that is completely consistent with the language and the purposes of the INA as well as with the Attorney General's interpretation of his authority under the Act and with the decisions of this Court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROY T.ENGLERT, JR. Assistant to the Solicitor General BARBARA L. HERWIG FREDDI LIPSTEIN Attorneys JANUARY 1987 /1/ Section 1182(a)(14) does not apply to sons or daughters of U.S. citizens (8 U.S.C. 1153(a)(1) and (4)), spouses, unmarried sons or daughters of lawful permanent resident aliens (8 U.S.C. 1153(a)(2)), or brothers or sisters of citizens (8 U.S.C. 1153(a)(5)). Section 1182(a)(14) states that it "shall apply to preference immigrant aliens described in section 1153(a)(3) and (6) of this title, and to nonpreference immigrant aliens described in section 1153(a)(7) of this title." The immigrant aliens to which this sentence refers include all immigrants who may be allotted visas under the numerical limitations except the relatives of citizens or permanent residents specifically listed in 8 U.S.C. 1153(a)(1), (2), (4), and (5). /2/ There are limited exceptions, such as the one for "immediate relatives" as defined in 8 U.S.C. 1151(b), who may become permanent residents despite having accepted employment while in nonimmigrant status. 8 U.S.C. 1255(c). /3/ The House report also stated more generally that one purpose of the bill was to "return without doubt to the political (executive) branch of the Government certain functions in connection with the exclusion and expulsion of aliens which historically have been vested in that branch, rather than the judiciary" (H.R. Rep. 1192, supra, at 4). /4/ The Subversive Activities Control Act of 1950 is Title I of the Internal Security Act of 1950, and references to Section 23 of either Act are to the same provision. /5/ The regulation set forth factors to be considered in the exercise of discretion concerning whether to grant work authorization, including the safeguarding of employment opportunities for American citizens, prior violations of the immigration laws by the alien, whether an American citizen or lawful permanent resident is dependent on the alien for support, and whether there are other equities that should be considered. See 48 Fed. Reg. 51144 (1983) (8 C.F.R. 103.6(a)(2)(iii) and 8 C.F.R. 109.1(b)(8)); App., infra. 60a-62a. The authority proposed to be given to district directors under these regulations would be in addition to the district directors' preexisting authority (8 C.F.R. 109.1(b)(1)-(7) (1983)) to grant work authorization to aliens who are in certain specified statuses or have applied for or been granted certain specified benefits. /6/ Although the regulation placed the burden on such an alien to seek employment authorization, the regulation also provided a new, additional basis to obtain such authorization from the district director. See note 5, supra. /7/ Plaintiffs named in the original complaint were 13 nonprofit organizations providing free legal services to aliens with immigration problems, a local United Auto Workers Union affiliate, six named aliens held in detention, and one unnamed alien who claimed to be deterred from filing for benefits by fear that the new regulation would result in indefinite detention (Clerk's Record, Docket Entry 1, at 5-9). In an amended complaint, filed on December 16, 1983, one of the alien plaintiffs held in detention was omitted and 10 additional alien plaintiffs were named (E.R. 8-17). Four of the additional plaintiffs alleged that a "no-work" condition had been included in their release bonds; six alleged that they were then currently detained. /8/ The scope of the district court's injunction, which remains in effect, is not entirely clear. For example, it is not clear whether the district court intended to bar implementation of 8 C.F.R. 103.6(a)(2) only, or also enjoined implementation of simultaneously proposed changes, beneficial to aliens, in 8 C.F.R. 109.1. It is also unclear whether the district court intended to prohibit continued use of the prior version of the regulation, which permitted no-unauthorized-employment conditions on a case-by-case basis. The district court held that "the Attorney General's discretion to impose release conditions must be limited to those conditions which are related to securing the alien's presence at future deportation proceedings" (App., infra, 22a-23a). That holding would preclude virtually all no-unauthorized-employment conditions. In Part II of its opinion, however, the court commented that "the INS has the authority 'in a proper case to impose a bond condition prohibiting unauthorized employment,'" and based its decision on a holding that "the discretion of the Attorney General does not extend to the blanket imposition of a no-work condition on all aliens who are released on bond pending future deportation proceedings" (App., infra, 25a, quoting, and adding emphasis to, In re Vea, 18 I. & N. Dec. 171, 174 (BIA 1981)). That second holding purports to invalidate only the 1983 regulation and not its predecessor. /9/ In addition, far from doing away with individualized determinations as the courts below claimed, the regulation gives every alien released on bond an opportunity to persuade the district director that employment -- otherwise prohibited by the Act itself -- is appropriate (see pages 8-9 & notes 5 & 6, supra). /10/ This Court has recently had occasion to comment that "(o)ne illegally present in the United States who wishes to remain already has a substantial incentive to prolong litigation in order to delay physical deportation as long as possible." INS v. Rios-Pineda, 471 U.S. 444, 450 (1985). The denial to INS of a mechanism to enforce the Act's prohibition on employment by those who are illegally in this country obviously enhances the incentive that such aliens have to delay their determination of deportability and subsequent voluntary departure or deportation. /11/ It also makes obvious sense to place on the alien the initial burden of seeking such authorization. Aliens who wish to enter the country with a status that permits employment bear the burden of initiating proceedings to obtain that status; and aliens who adhere to the law by seeking a change in status to permit them to work also bear the burden of initiating a change-in-status proceeding. There is no reason why aliens who are awaiting a deportability determination should not bear the same burden of initiating proceedings either to obtain work authorization or to demonstrate that they already have such authorization. /12/ For example, lawful permanent resident aliens are issued "green cards," which they are required to carry with them at all times as evidence of their status. See 8 U.S.C. 1304(e); 8 C.F.R. 211.1(b); Saxbe v. Bustos, 419 U.S. 65, 68 (1974). Nonimmigrants entitled to work in the United States can produce a visa, see 8 C.F.R. 212.1, which, by its class, will indicate the extent to which work is permitted (8 C.F.R. 109.1(a)(5) and (6)), a border crossing card (8 C.F.R. 212.1(c)), or a work authorization when required for a particular nonimmigrant class (8 C.F.R. 109.1(b)). Refugees paroled into the United States receive appropriate documentation, and aliens granted asylum are issued a written decision (8 C.F.R. 208.8(b)). Moreover, each alien's evidence of registration has an "A" number, which can be given to INS to ascertain the alien's status. Thus, an alien who is permitted to work under the Act easily will be able to demonstrate that fact to INS officials responsible for releasing the alien on bond. /13/ Notably, Congress has determined that the bond of a person who is charged with a crime must condition release on the person's not committing any crime while on release (18 U.S.C. (Supp. II) 3142(c)(1)). Although Congress has not made it mandatory that the bond of a person who is charged with an immigration violation condition release on the person's not committing further immigration violations, that is hardly a basis for concluding that the broad language of Section 242(a) prohibits the Attorney General from conditioning release on the person's not committing one specific immigration violation, namely engaging in unauthorized employment. /14/ Because the 1983 regulations contemplate individual determinations, it is not necessary to resolve the question whether the hypothetical regulation on which the court of appeals commented -- one that does not involve individual determinations -- would comport with the statute. Yet it is worthy of note that the courts below made no attempt to explain how the statute, which makes no mention of individualized determinations of bond conditions, can be read to support their holding. Because it is the Act that forbids aliens to engage in unauthorized employment, it would seem quite reasonable, and well within the broad language of Sections 242(a) and 103(a), to incorporate that prohibition into every release bond. So long as the condition is one that forbids only unauthorized work -- and not, as the court of appeals erroneously stated, "a no-employment condition in every bond" (App., infra, 10a) -- it is difficult to see what in the Act can be said to call for "individualized determinations." The administrative precedent cited by the courts below shows only that the agency, as a matter of policy, once thought it appropriate to use no-unauthorized-employment conditions more sparingly. See In re Toscano-Rivas, 14 I. & N. Dec. at 556-557 (Attorney General expressed concern that, if INS intended to use unauthorized employment conditions on release bonds, it do so by regulation in order to put aliens on notice that such conditions may be employed and to provide guidance for when such conditions may be appropriate); In re Chew, 18 I. & N. Dec. 262 (BIA 1982) (applying pre-1983 version of 8 C.F.R. 103.6); In re Vea, 18 I. & N. Dec. 171 (BIA 1981) (same). There is no suggestion in those cases that the policy that INS followed before 1983 was compelled by statute. /15/ "It would be unreasonable to construe the quoted language (from the legislative history) to mean that the Attorney General may impose bond conditions which are totally unrelated to the various purposes of the immigration laws, but the reports clearly demonstrate a Congressional intent to grant wide discretion otherwise." 14 I. & N. Dec. at 554 (footnote omitted). /16/ Given that basic legislative purpose, the Attorney General concluded that Section 103(a) "and the Attorney General's broad authority to enforce the immigration laws afford an independent basis (in addition to Section 242(a)) for requiring of persons subject to deportation proceedings bonds prohibiting unauthorized employment" (In re Toscano-Rivas, 14 I. & N.Dec. at 555). /17/ The Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3360, should remove any doubt that Congress is seriously concerned with the impact of unauthorized alien labor on the American workforce. In De Canas the Court referred to the fact that Congress had never enacted employer sanctions for employment of illegal aliens as evidence of the Act's "peripheral concern" (424 U.S. at 360) with employment of illegal entrants. Now that Congress has enacted employer sanctions, any argument that the INA is not fundamentally concerned with employment of illegal aliens should be put to rest. /18/ The Court observed in De Canas that Congress had begun to attack the problem of illegal alien employment in the Farm Labor Contractor Registration Act, 7 U.S.C. 2041 et seq., by authorizing "revocation of the certificate of registration of any farm labor contractor found to have employed 'an alien not lawfully admitted for permanent residence, or who has not been authorized by the Attorney General to accept employment.'" 424 U.S. at 361. In any event, Section 274(h)(2) of the Act, as added by Section 101 of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3360, expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." New Section 274a(h)(3), as also added by Section 101, defines "unauthorized alien" to mean an alien who is not authorized to be in the United States or who is not authorized to engage in employment. Thus, Congress has now expressed a clear intent to preempt local laws based on its strong concern with unauthorized alien employment.