TOSCANO-RIVAS

Interim Decision #2256

MATTER OF TOSCANO-RIVAS et al.

In Bond Proceedings

A49925806

Decided by Board September 7, 1972 and April 6, 1973

Decided by Attorney General January 9, 1974

(1) Sections 103 and 242 of the Immigration and Nationality Act authorize the

inclusion in an appearance and delivery bond in connection with a deportation

proceeding of a condition prohibiting unauthorized employment.

(2) Under 8 CFR 242.2(b), a special inquiry officer has authority to review and

modify the conditions of a bond imposed by a district director in a deportation

proceeding; under 8 CFR 3.1(bX7), the Board of Immigration Appeals has

authority to review, on appeal, a special inquiry officer's consideration of a

bond determination made by a district director.

APPLICATION: Elimination of condition of bond prohibiting employment unless

authorized by Immigration and Naturalization Service.

ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:

Emanuel Braude, Esquire Charles Gordon

215 W. 5th Street, Suite 910 General Counsel

Los Angeles, Calif. 90013 Irving A. Appleman

David Marcus, Esquire Appellate Trial Attorney

215 W. 5th Street (Brief filed)

Los Angeles, Calif. 90013

Amicus Curiae:

Jack Wasserman, Esquire

Esther M. Kaufman, Esquire

Association of Immigration and

Nationality Lawyers

1823 "L" Street, N.W., Suite 102

Washington, D.C. 20036

(Brief filed)

BEFORE THE BOARD

(September 7, 1972)

The District Director appeals from an order of the special

inquiry officer, dated August 4, 19'72, which was rendered in bond

redetermination proceedings incident to deportation proceedings.

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In his order the special inquiry officer eliminated a bond condition

imposed upon the respondents, according to which their accept-

ance of unauthorized employment would constitute a breach of

their bonds. The appeal will be dismissed.

The cases relate to ten aliens, all natives and citizens of Mexico,

all of whom were found to be deportable by the special inquiry

officer on August 1, 1972. Each of the respondents has conceded

deportability. Their appeals from the special inquiry officer's

orders of August 1, 1972 are being dismissed today in separate

orders.

We have been informed that respondent Perez Solorio has

returned to Mexico, evidently taking advantage of the privilege of

voluntary departure extended to her. Therefore, the District Di-

rector's appeal as to her has become moot.

Pending hearing in the deportation proceedings, the respond-

ents were released on a $1,500 bond covering the entire group. The

bond contained a condition inserted by the District Director to the

effect that the respondents agree not to accept any employment

unless authorized by the Service. The record reflects the fact that

all ten respondents had been employed by the same company,

California Originals of Torrance, California, a ceramics manufac-

turer. The bond condition against employment was obviously

designed to prevent their further employment by California Origi-

nals.

When the special inquiry officer's orders of August 1, 1972 were

entered, the first bond was vacated and new bonds were substi-

tuted in its place. The District Director set a $1,000 bond for each

alien, and these new bonds contained the same condition with

regard to employment as in the previous blanket bond. In bond

determination proceedings the special inquiry officer reduced the

amount of the bonds to $500 per alien. At that time there was no

discussion of the condition against accepting unauthorized em-

ployment. The District Director thereupon prepared new bonds

which again contained the condition against employment. At the

request of counsel, the special inquiry officer reopened the bond

proceedings and, over objection of the District Director, deleted

the condition. It is that action which the District Director asks us

to review on this appeal.

Counsel claims that releasing the respondents on bond but

making their further engagement in unauthorized employment

subject to the penalty of having their bond forfeited works to

defeat their right to appeal. In view of the result we reach, we

need not respond to this contention of counsel.

We have been advised that bond has been posted and the

respondents have been released, accepting the condition imposed

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Interim Decision #2256

by the District Director under protest. We understand the Service

has agreed that the respondents' right to challenge the contested

bond condition shall not be prejudiced by their release. We shall

decide this appeal on that basis.

This appeal raises two main issues. The first question is

whether, in the present case, the District Director's use of a

condition against unauthorized employment in a bond required of

aliens in deportation proceedings is reasonable and proper. The

second issue is whether the special inquiry officer, and thus

indirectly this Board, has the power to review the District Diree-

tor's action in these cases. We shall deal with the jurisdictional

question first.

The District Director takes the position that the special inquiry

officer had no authority to delete the condition relating to unau-

thorized employment because the District Director has the exclu-

sive right to impose conditions of bonds other than the actual

amount of the bond. The District Director relies upon a compari-

son of the language of 8 CFR 242.2(a), which recites his powers,

and 8 CFR 242.2(b), which deals with the powers of the special

inquiry officer to redetermine bond matters_ The relevant portion

of 8 CFR 242.2(a) reads as follows:

When a warrant of arrest is served under this part, the respondent ... shall

... be informed whether he is to be continued in custody, or, if release from

custody has been authorized, of the amount and conditions of the bond or the

conditions under which he may be released. (Emphasis supplied.)

The relevant portion of 8 CFR 242.2(b), on the other hand, at first

glance seems to limit the special inquiry officer to "determine

whether a respondent shall be released under bond, and the

amount thereof." (Emphasis supplied.) The District Director would

have us interpret the absence of any reference to conditions of

bond in 8 CFR 242.2(b) to mean that the special inquiry officer is

without any power to review a determination as to non-monetary

conditions of a bond made by the District Director.

We are unable to accept what we believe to be an overly

mechanical interpretation of the regulations on the part of the

District Director. As a general rule, all related regulations ought

to be read together to form an integrated whole. With regard to

the present appeal, this means that we should consider certain

additional language contained in 8 CFR 242.2(a) which bears upon

the issue at hand, but which was not mentioned by the District

Director. We refer to the portion that states the District Director

shall advise a respondent "whether he may apply to a special

inquiry officer pursuant to paragraph (b) of this section for release

or modification of the conditions of release ..." (Emphasis sup-

plied.) When this additional language is considered it becomes

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clear that the failure to mention the power to modify non-

monetary bond conditions in the enumeration of the special

inquiry officer's powers in 8 CFR 242.2(b) was not meant to deprive

the special inquiry officer of that power. We do not deem it

significant that 8 CFR 242.2(b) is given the heading "Authority of

special inquiry officers; appeals." The authority of the District

Director is spelled out in 8 CFR 242.2(a), but that section is merely

entitled "Warrant of arrest."

Prior to 1954, this Board did not have authority to review bond

determinations of the District Director. In that year, the Attorney

General by regulation conferred appellate jurisdiction on the

Board to review Service determinations relating to an alien's

bond, parole or detention in deportation proceedings. The grant of

authority now appears in 8 CFR 3.1(bX7). The special inquiry

officer had no authority, prior to 1969, to review bond determina-

tions made by the District Director. In that year, however, the

regulation was amended to give the special inquiry officer such

authority. We discussed at length, in Matter of Kwun, Interim

Decision No. 2021 (BIA 1969, 1970), the fact that the purpose of the

amendment to the regulations, and the simultaneous expansion of

the jurisdiction of the special inquiry officers, was to eliminate the

need for direct appeals to the Board from bond, parole or detention

determinations of the District Director. We therefore agree with

the special inquiry officer's ruling that he does in fact have the

power to review and modify the conditions of a bond imposed by

the District Director. This Board, by virtue of 8 CFR 3.1(bX7), then,

has the power to review the special inquiry officer's consideration

of the initial determination made by the District Director in the

present case. We believe this result comports with the basic

principles underlying the 1954 and 1969 changes in the regula-

tions.

The next question is whether the District Director's use of the

condition against unauthorized employment, pending a fmal deter-

mination as to deportability, is reasonable and proper. We do not

agree with the Service that the condition here imposed by the

District Director is a proper one. We are in accord with the

decision of the special inquiry officer in eliminating that condition

and we shall dismiss the Service appeal from his order.

The statutory authority regarding requiring a- bond pending

final determination as to deportability is contained in section

242(a) of the Immigration and Nationality Act. The relevant

portion of that section reads as follows:

Pending a determination of doportability in the ease 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

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Interim Decision #2256

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

upon 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; ...

The District Director takes the position that the special condi-

tion placed in the bonds of the respondents declaring that unau-

thorized employment would constitute a breach of the bonds is

permissible under the broad power given the Attorney General in

section 242(a) of the Act. The District Director notes that the

procedure for advance approval by the Regional Commissioner of

riders containing special conditions not found on the standard

bond form set forth in 8 CFR 103.6(aX2) was followed. The District

Director apparently rests upon 8 CFR 242.2(a) as authority that

the Attorney General's broad power has been delegated to him.

The special inquiry officer, in cancelling the bond condition

prohibiting unauthorized employment, rejected the position of the

District Director. In essence, the special inquiry officer held that

no one has the power to impose such a condition in a bond in a

deportation proceeding. The position of the special inquiry officer

is set forth on page 17 of the transcript. It reads as follows:

I have always viewed the bond where an alien is under deportation

proceedings as a bond which would assure his appearance and delivery. The

condition* that the Diotriet Director can impose on that ernulri he such

conditions which will influence his appearance. The purpose of a bond is to

assure his appearance and the necessity of the bond also is if he is likely to

abscond or if he is a threat to the public safety or security of the United

States.

The statute prescribes no limitation on the nature of the

conditions which may be imposed. In view of the broad grant of

power, it seems to us that any reasonable condition formulated- by

the District Director as the delegate of the Attorney General must

be sustained. In determining what is reasonable, we must of

course take into account the gloss which this provision has

acquired in the courts through the years.

While it is a bond cdndition which in form confronts us, in reality

the issue directly involves detention. If the respondents refuse to

agree to the condition laid down by the District Director, i.e., that

they shall not accept employment unauthorized by him, they will

simply be continued in custody until the adjudication of their

deportability becomes foal and they can be deported.

The detention, bond, parole, and supervision provision of section

242 of the Act were designed primarily to make sure that the alien

who is the subject of the deportation proceedings will be made

available for hearing when required and for deportation if ulti-

mately found to be deportable. If the alien's recent activities are

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Interim Decision #2256

such as to constitute a menace to the internal security of the

United States, he may properly be detained, Carlson v. Landon,

342 U.S. 524 (1952) (active membership in Communist Party during

period of tension). Similarly, if by reason of criminal background or

other adverse factors he is a bad bail risk, he may be held to high

bail or detained without bail, Hernandez Avila v. Boyd, 294 F.2d

373 (C.A. 9, 1961). In the absence of any security risk or bail risk

elements or any meaningful criminal record, an alien should

ordinarily not be detained, Rubinstein v. Brownell, 206 F.2d 449

(D.C. 1953), affirmed by an equally divided court, Brownell v.

Rubinstein, 346 U.S. 929 (1954).

We agree that $500 bond is a reasonable requirement in these

cases. There is nothing in the record before us, however, to

indicate that any of the respondents is a security risk or has a

meaningful criminal background. The Service candidly concedes

that the use of the "no unauthorized employment" condition in an

appearance and delivery bond to secure the release of an alien in

deportation proceedings is novel.' It attempts to justify the imposi-

tion of this condition on the peculiar factual situation presented in

the eases of these respondents by the following chain of facts and

reasons:

The respondents, as aliens concededly deportable, have no legal

right to remain. It is unlawful for them to work here. Worse, their

employment by California Originals at the minimum wage permis-

sible by law deprives American workers of employment, since the

latter cannot work for such substandard wages. This in turn

contributes to unemployment. The situation is aggravated by the

fact that California Originals has a high proportion of illegal aliens

among its employees, is uncooperative, and is under investigation

for harboring aliens. The Service assures us that the District

Director does not intend to use the "no unauthorized employment"

condition indiscriminately in the cases of all aliens here illegally,

but only on a carefully selective basis.

Underlying this proposal is the thesis that detention is war-

ranted (over and beyond its obvious use to make the alien

available for hearing and for deportation) not only to meet the

needs of internal security but also to meet the possible needs of

economic security. In other words, if aliens here illegally are

holding down jobs that Americans could use, the aliens may be

placed in detention so that their jobs will become available for the

1 Such a condition is usually found in a maintenance of status and departure

bond, which is sometimes exacted of aliens seeking to enter the United States as

nonimmigrants for a temporary period and as to whose bona fides there may be

some lingering doubt.

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Interim Decision #2256

Americans. Even if this were considered a desirable way of

attacking the problem, we believe it is an impermissible use of the

detention power.

The respondents entered the United States in a status which did

not permit them to work here, so that it was and is unlawful for

them to accept gainful employment. See London v. INS, 433 F.2d

635 (C.A. 2, 1970). But so far as we can ascertain, deportation is the

only sanction imposed by the statute for this infraction. We can

find no statutory Provision which makes it a crime for an alien

here illegally to work for pay or which imposes a civil penalty

other than deportation. The impact upon our economy of illegal

immigrant employment has been the subject of intensive Congres-

sional scrutiny in recent months and numerous bills specifically

tailored to meet the problem have been introduced. One of them,

H.R. 14831, 92nd Cong., 2d Sess., would amend section 274 of the

Act to impose civil and criminal penalties, for successive violations,

upon an employer who knowingly employs an alien not lawfully

admitted for permanent residence unless such employment is

authorized by the Attorney General

Whether or not the acceptance of unauthorized employment by

an alien here illegally should be a criminal offense is a matter of

legislative judgment. If Congress were to make such conduct a

criminal offense and such an alien were to be charged therewith,

he would have to be found guilty after a due process trial and

sentenced to imprisonment by a judge before he could be confined.

We do not feel that the detention power conferred by section 242(a)

of the Act should be used to achieve the same result while

Congress is pondering what legislation to enact, merely because

the District Director is impatient at the delay. 2

The Service is not reniediless. If it feels the respondents are

using dilatory tactics in order to delay deportation so that they

may continue to work here illegally as long as possible, this design

can be thwarted by expediting procedures all along the line.

Priority handling and prompt deportation, rather than preventive

detention, is more in keeping with our traditions as a method of

coping with this pi:oblem. We have expedited consideration of

respondents' cases and our careful review of the records satisfies

us that their appeals lack merit. We are therefore dismissing their

2 Excerpt from District Director's memorandum dated August 7, 1972 to

Service Representative, Board of Immigration Appeals:

"The ultimate question to be answered is whether the government has the

authority to imaginatively utilize the weapons at hand to counter an immedi-

ate and present economic problem or sit idly by permitting the problem to

destroy us while we await the creation of new weapons in the form of

legislation and/or regulations."

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appeals in separate orders today. Insofar as concerns the Service

appeal in the bond proceedings before us, that, too, will be

dismissed.

ORDER: The appeal is dismissed.

Warren R. Torrington, Member, Dissenting:

I must dissent; for the order of the Board seeks to impose an

unreasonable limitation on the authority of the Attorney General

to detain and release aliens pending a determination of their

deportability.

I agree with the holding that, under the provisions of 8 CFR

242.2(b), a special inquiry officer has the authority to modify the

conditions of a bond imposed by the District Director. I disagree

with the holding that a condition that the deportable alien "not

accept employment" is unreasonable, and with the order dismiss-

ing the Service appeal.

From the record the full text of the conditions of this bond with

which we are here concerned appears to be as follows:

In consideration of the granting of the application of the above named alien

for release from custody under a warrant of arrest issued by the Attorney

General charging that he is unlawfully in the United States, provided there is

furnished a suitable bond as authorized by Section 242 of the Immigration and

Nationality Act, the obligor hereby furnishes such bond with the following

conditions i o. Tf said alien is released from custody and if said alien does not

-

accept employment in the United States on or after the effective date of this

bond unless authorized by the Immigration and Nationality Service and if the

above obligor shall cause said alien to be produced or to produce himself to an

immigration officer of the United States upon each and every request of such

officer until deportation proceedings in his case are finally terminated or until

said alien is actually accepted by such immigration officer for detention or

deportation, then this obligation shall be void; otherwise it shall immediately

become due and payable; Provided, that it is hereby specifically agreed by the

obligor that no order issued by or under the authority of the Attorney General

by virtue of which issuance or execution of an order of deportation is or may

be deferred, or by virtue of which the said alien is or may be permitted to

depart voluntarily from the United States, shall be in any manner construed

to impair or render void this obligation or any part thereof.

The majority opinion recognizes that section 242(a) of the Immi-

gration and Nationality Act contains "no limitation on the nature

of the conditions which may be imposed" in a bond. Indeed, the

language of the statute is as clear as can be. The majority does not

find the condition here sought to be imposed by the Service to be

unconstitutional, illegal, or immoral. It emphasizes that the "re-

spondents entered the United States in a status which did not

permit them to work here, so that it was and is unlawful for them

to accept gainful employment." It then expresses the strange view

that a bond condition against unlawful employment i$ "unreasona-

ble." I disagree.

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Interim Decision #2256

The Immigration and Nationality Act does not, as the majority

would have us believe, direct the Attorney General to stand idly by

while aliens who, being represented by experienced immigration

counsel, have admitted the truth of the allegations in the orders to

show cause, and have conceded their deportability, flagrantly

violate the immigration laws of the United States. On the con-

trary, Congress has, in no uncertain terms, given the Attorney

General the unrestricted power to release, in his discretion, an

alien arrested under section 242(a) of the Immigration and Nation-

ality Act, pending a determination of the alien's deportability, "un-

der 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." [Emphasis supplied]. Incidentally, under

section 242(a) of the Immigration and Nationality Act, the Attorney

General has the option to continue an arrested alien in custody

pending a determination of his deportability, and not to release him

at all. It goes without saying that there must never be an abuse of

the Attorney General's discretion. The statute provides for review

or revision of a determination of the Attorney General by a court of

competent jurisdiction only "upon a conclusive showing in habeas

corpus proceedings that the Attorney General is not proceeding

with such reasonable dispatch as may be warranted by the particu-

lar facts and circumstances in the case of any alien to determine

deportability."

The majority is careful not to state that the imposition of the

condition against the taking of employment constituted an abuse

of the Attorney General's discretion. Only a clear abuse of discre-

tion would justify the setting aside of an otherwise legal condition.

The condition here sought to be imposed was not only not unrea-

sonable, but, in my opinion, was eminently reasonable and

proper. I reject the strange notion advanced in the majority

opinion that the chief law enforcement officer of the United States,

acting through the Immigration and Naturalization Service, has

no authority in any case to attempt to prevent admittedly deporta-

ble aliens from thumbing their noses at the immigration laws of

this country unless violations of such laws call for criminal

sanctions.

The cases cited on page 8 of the majority opinion have no

relation to the issue that is before us. That issue is simply whether

the condition here sought to be imposed is reasonable or not.

The case of Carlson v. Landon, 342 U.S. 524 .(1952) dealt only

with the question whether the Attorney General could continue

active alien Communists in custody, without bail, pending determi-

nation of their deportability, under section 23 of, the Internal

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Security Act of 1950 (8 U.S.C. § 156). Similarly, the decision of the

United States Court of Appeals for the Ninth Circuit in Hernan-

dez-Avila v. Boyd, 294 F2d 373 (CA. 9, 1961) has no conceivable

relation to the question here involved. There the Court held that a

determination of the Attorney General and his authorized repre-

sentative with respect to bail would be overturned only if there

was an abuse of discretion. The Court did nut find an abuse of

discretion.

The majority opinion cites a decision of the United States Court

of Appeals for the District of Columbia Circuit in the interesting

case of Rubinstein v. Brownell, 206 F.2d 449 (D.C. 1953), affirmed

sub nom. Brownell v. Rubinstein, 346 U.S. 929 (1954), as supporting

the following proposition: "In the absence of any security risk or

bail risk elements, or any meaningful criminal record, an alien

should ordinarily not be detained." That decision not only does not

support the foregoing proposition at all, but deals with an entirely

different situation. Rubinstein had indeed been released on bond.

He then brought a suit against the Attorney General for declara-

tory relief with regard to an administratively final deportation

order and for an injunction restraining the Attorney General from

arresting Rubinstein. He (Rubinstein) asserted that the Attorney

General had threatened to take him into custody. The—divided-

court stressed the fact that it had not been denied by the

Government that Rubinstein would not engage in reprehensible

activities, and remanded the case to the District Court with

directions to issue a preliminary injunction restraining the Attor-

ney General from revoking Rubinstein's bail and taking him into

custody.

Some comment is required with regard to certain unfortunate

expressions and unsubstantiated theories which appear in the

majority opinion. One of them is the deliberate and wholly unwar-

ranted use of the term "preventive detention," with its well-known

connotation. The respondents—who, incidentally, posted the bonds

including the condition not to accept illegal employment, and were

released thereafter—were never held in "preventive detention,"

but successfully frustrated the efforts of the Service to deport

them when, having admitted the truth of the allegations in the

orders to show cause, and having conceded their deportability,

they took appeals to this Board from the orders of the special

inquiry officer finding them deportable. Those appeals have now

been dismissed by us.—The concomitant reference to our "tradi-

tions," which follows the characterization of the retention in

custody of the respondents as "preventive detention," is equally

misplaced. Observing.the laws Congress has enacted is, I respect-

fully maintain, "more in keeping with our traditions" than permit-

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ting aliens illegally in this country to violate them, a consequence

of the conclusions reached by the majority.

The admonition to expedite "procedures all along the line" is

paticularly inappropriate in an order which would make it possible

for aliens illegally in this country to engage in renewed violations

of our immigration laws. Inasmuch as "dilatory tactics" employed

by aliens consist of appeals to this Board and of proceedings

instituted in the federal courts, there is precious little the Service

can do to expedite "procedures." As everyone who even casually

reads a daily newspaper knows, the Service has already been

doing its utmost to effect speedy deportation of aliens illegally in

this country, but is being overwhelmed by the enormity of the

problem. With hundreds of thousands of aliens already illegally in

this country, and their numbers growing, the present lawful

efforts of the Immigration and Naturalization Service, acting for

the Attorney General, to enforce compliance with the immigration

laws of the United States should be encouraged, and not ham-

pered, by this Board to which the Attorney General has entrusted

certain of his powers of review. The pious 'statement in the last

paragraph of the majority opinion that, "The Service is not

remediless," illustrates the type of ivory-tower approach which we

should avoid.

There is no merit to counsel's novel contention that these

admittedly deportable aliens are entitled to engage in unlawful

employment while they proceed with appeals or pursue collateral

matters.

Under the provisions of 8 CFR 3.1(hX1Xii), decisions of the Board

are to be referred to the Attorney General for review if a majority

of the Board or the Chairman believes that such a referral should

be made. In the present case the Chairman and two Board

members who have espoused the majority opinion have—in my

view, regrettably--declined to refer this important three-to-two

decision of the Board to the Attorney General for review. How-

ever, as in all cases, a review of the present Board decision by the

Attorney General will take place, without the concurrence of the

Chairman or the majority of the Board, if the Commissioner of the

Immigration and Naturalization Service requests that the case be

referred to the Attorney General for review, or if the Attorney

General himself directs the Board to refer the case to him. 8 CFR

3.1(h)(1Xi) and (iii). I feel duty-bound to urge respectfully that that

be done.

The Service appeal should have been sustained.

Marianne B. MeConnaughey, Member, Dissenting:

I agree with the majority decision on the jurisdictional issues.

The statute, section 242(a) [8 U.S.C.A. 1252(a)], gives the Attorney

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General broad power with regard to detaining and releasing aliens

who are involved in deportation proceedings.

I agree with the majority decision that the District Director had

the authority to impose a condition in allowing the respondents

release on bond. The Special Inquiry Officer, quoting from 8 CFR

242.2, reversed the District Director and lifted the condition, giving

as his reasons that the District Director did not have the authority

to impose the condition, and that a bond is only to guarantee an

appearance. I agree that the Special Inquiry Officer has authority

to set aside the condition imposed by the District Director. The

District Director is mistaken in asserting that the right to impose

the condition resides in him with no review by the Special Inquiry

Officer.

Even though the regulations delegating the Attorney General's

power are not as clear as we might wish, the procedure is not

unworkable even in this rather difficult situation. The Special

Inquiry Officer has authority to overrule the District Director, to

lift the condition imposed , or to change conditions, and the Board

has jurisdiction to review the matter.

Under the regulations the Board has authority to review bond

matters. 8 CFR 8.1(b)(7) provides that the appellate jurisdiction of

the Board shall include appeals from "determinations relating to

bond, parole, or detention of an alien as provided in part 242 of this

chapter." Therefore bond conditions imposed by a District Direc-

tor, approved by a Regional Commissioner, and adjudicated by a

special inquiry officer are appealable to the Board. 8 CFR 2422(a)

and (b) also provide for review by the Board. This is the usual,

customary, orderly manner of proceeding, with the Board perform-

ing its proper function as a buffer and intermediary between the

Service and the courts.

The majority decision states, "The statute prescribes no limita-

tions on the nature of the conditions which may be imposed. In

view of the broad grant of power, it seems to us that any

reasonable condition formulated by the District Director as the

delegate of the Attorney General must be sustained. In determin-

ing what is reasonable, we must of course take into account the

gloss which this provision has acquired in the courts through the

years."

Section 242(a) is quoted only in part in the majority decision.

However, the statute continues:

... 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 deporta-

bility.

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Since it is conceded that "any reasonable condition formulated

... must be sustained," the majority necessarily concluded that

the condition with which we are concerned here was not reasona-

ble. First, the condition formulated by the District Director seems

to me to be eminently reasonable. Second, I have been unable to

discover that the law and regulations have acquired much in-

terpretive "gloss." We have few bond appeals; the use of bonds by

the Service seems to have worked smoothly and been acceptable.

The very fact that these cases are here on a fairly fundamental or

primitive issue indicates a certain lack of "gloss."

It is true that there have been in use two kinds of bonds: first,

appearance bonds and, second, maintenance of status bonds. It

has long been permissible also to include in bonds either mainte-

nance of or continuance of status provisions, or departure provi-

sions. Bonds serve a variety of purposes. Occasionally the Service

may require that an alien or a parolee remain in a specific area.

An alien in the United States on a student visa may be found out

of school or employed without permission of the Service. He may

be required to post a bond as a condition of his being permitted to

remain and to return to school. This is not a unique situation, as

everyone knows who works in this area. An arriving "visitor" who

has no return ticket and no money may be delayed at the port of

entry until a friend or relative posts a bond to guarantee that the

new arrival does not obtain employment and does depart at the

expiration of his visit. This is a standard procedure.

It seems to me that under the regulations the District Director

could require a bond containing maintenance of status provisions,

and the Special Inquiry Officer could, in his turn, require an

appearance bond. This would be onerous and unnecessary and to

my knowledge is not done. But if this is true, there would seem to

be no reason why one $500. bond should not serve both purposes.

The regulations recognize that standard forms cannot cover

every situation that may arise. 8 CFR 103.6(aX1) and gives the

District Director, with advance approval by the Regional Commis-

sioner, the power to devise new provisions to be used as riders

when necessary. The fact that the rider used in this case consti-

tutes a departure dues nut mean it is illegal or improper.

There is no claim here that any of the respondents have legal

status or eligibility for any relief from deportation except to apply

for a grant of voluntary authority as a matter of administrative

discretion. Deportability has been conceded by counsel, and found

by the Special Inquiry Officer. We are today dismissing the

appeals from the orders of the Special Inquiry Officer. Counsel

claims the respondents have a "constitutional right to work." No

one questions that an alien with a (limited) right to remain

525

Interim Decision #2256

becomes deportable and forfeits his status for accepting unauthor-

ized employment. The visitor who enters in legal status with

documents and a hearing before a Service officer does not enjoy

the right to take a job as soon as he is out of sight of the Service

officer. Is it reasonable to say that respondents who have no

status and no right to remain are free to accept any employment

they choose? They claim the right to seek employment, unham-

pered by the immigration authorities. How did they who are here

in defiance of law from the time they step over the boundary,

acquire the constitutional right to work and to be free of a

maintenance of status bond? The logic of this position escapes me.

Most important, if the law and the regulations permit the Attor-

ney General and his representatives to detain, to release, to parole

and to rearrest pending deportation, how can it be impermissible

for him to release on a bond containing a condition such as this, a

quite reasonable condition under the circumstances?

The majority decision states that it is not a crime for an illegal

alien to work, that they have been convicted of nothing, and

therefore it is wrong to detain them. Illegal entry and reentry

without permission following deportation are both crimes under

sections 275 and 276 of the Immigration and Nationality Act.

There are no prosecutions, as yet, in these cases, and probably

there will be none. Some of the respondents were granted volun-

tary departure by the special inquiry officer as a matter of

administrative discretion. Others, who admitted two, four and six

illegal entries, or entries following deportation, or payment to

smugglers to achieve entry, were ordered deported.

The majority attempts to equate this bond condition with a

sentence to jail for commission of a crime. This is not a valid

equation_ The aliens were to be released to go their way upon

posting a bond containing two conditions—that they make them-

selves available for hearing when they were called, and that they

refrain from accepting unauthorized employment. The latter con-

dition does not differentiate them from all other aliens in the

United States without status. They were not sentenced to deten-

tion. In this case it was counsel's choice not to post the bond. The

original agreement to post bond has been discussed. It is not

reaching too far outside the record to note that four days after

oral argument the bond containing the condition was posted, and

the respondents were released. At oral argument the appellate

trial attorney was asked whether the Service would deny respond-

ents employment by some other employer while they pursue their

right to appeal from the orders of deportation. (Page 27, oral

argument). The appellate trial attorney answered, 'Probably not."

Congress has attempted since the early part of this century, as

5 36

Interim Decision #2256

part of its various plans to assure orderly immigration, several

programs such as job assurances, sponsors, preferences, and now

there is an elaborate system of job certifications and exemptions.

These provisions are and have been administered through the

Departments of Labor, State and Justice, attempting to act coop-

eratively. The laws have changed as our needs changed, and as

the position of the United States in the world economy changed.

It was claimed by counsel that California Originals needs these

particular skilled aliens in order to conduct its business, and that

the Service denied the company's petition to have them admitted

as industrial trainees. Counsel maintained that because the com-

pany needs them, and because they want to work, the bond

condition is wrong. The Service expressed concern that respond-

ents hold jobs that should be made available to citizens and legal

residents. I am not particularly concerned about "saving" these

few jobs for the American worker. I would lay aside the economic-

political factors which consumed much of the time on both sides

during oral argument. The case before us concerns an employer

and a group of aliens illegally in the United States who have

knowingly and defiantly and repeatedly violated the law, and who

intend to continue to do so for as long as possible. At least some

have been deported repeatedly and have returned to the same

employment. I find this new bond condition an interesting develop-

ment of an enforcement technique, already authorized by the law,

at a time when the Service desperately needs new enforcement

techniques. The snowballing problems facing the Service are well

known. It has been widely said that taking the profit out of illegal

entry, both for the aliens and the employers, is the only real way

to discourage repeated illegal border jumping.

Counsel asserted that this is a case of first instance or a "pilot

case," that it represents a new policy, that if we permit the Service

to impose this no-work condition the Immigration Service will

exact a similar bond from every alien arrested inside the United

States. The appellate trial attorney denied that the Service has

such an intention. He stated that the result of such action would

be great hardship, that large numbers of dependents would be

forced onto relief rolls pending processing of immigration cases,

and that this is not what the Service wants.

Review jurisdiction is with us in every case, as well as in the

courts. I do not fear that the District Director would use this

power casually o-. capriciously. If we sustain the bond require-

ment, the alien may then pursue his remedy in court. We would

expect the Di ,A;rict Director to use this power sparingly, recogniz-

ing that he may not act capriciously.

To recapitulate: The Attorney General has the authority to

537

Interim Decision #2256

order a bond containing a reasonable condition and in an amount

reasonable under the circumstances of the case. Maintenance of

status provisions in bonds are not new; only the use of them in

this particular situation is new. There are provisions in the

regulations for new kinds of bond conditions in the form of

"riders." There appears to be no reason why two separate bonds

could not have been required, but a single bond serving a double

purpose is more efficient. Detention can be used for purposes other

than as punishment for commission of a crime; respondents were

asked only to refrain from accepting unauthorized employment

and were released when the required bond was posted. The

condition ordered here was a proper condition. I would reverse the

special inquiry officer's order and approve the District Director's

imposition of the bond condition.

BEFORE THE BOARD

(April 6, 1973)

This matter is before us on a Service motion for reconsideration

of our order dated September 7, 1972. That order dismissed the

Service's appeal from a special inquiry officer's decision striking

from respondents' appearance and delivery bonds a condition

against acceptance of unauthorized employment. We adhere to our

order of September 7, 1972 and deny the motion for reconsidera-

tion.

The facts have been fully stated in our prior order and need not

be repeated at length. Respondents are all aliens, natives and

citizens of Mexico, employed by a ceramics manufacturer, Califor-

nia Originals of Torrance, California. All had previously worked for

the same employer while here illegally and, after leaving the

United States, had returned here illegally with the intention of

resuming their jobs. Deportation proceedings were started, they

were arrested, and their release from custody was ultimately

authorized on posting of a $500 appearance and delivery bond by

each. The District Director had inserted in each bond an additional

condition against acceptance of employment not authorized by the

Service. This condition was admittedly designed to prevent their

further employment by California Originals. On their request for a

redetermination, the special inquiry officer deleted the condition

against unauthorized employment. The District Director appealed

to this Board from the special inquiry officer's decision, execution

of which was stayed pending appeal. Under protest, the respond-

ents posted bond containing the questioned condition and were

released, it being agreed that their right to challenge the con-

tested bond condition should not be prejudiced by their release.

538

Interim Decision #2256

They promptly returned to their employment with California

Originals.

In our order of September 7, 1972, we dismissed the Service

appeall We unanimously rejected the Service contention that the

District Director's exaction of the challenged bond condition was

not subject to review by the special inquiry officer or by this Board

on appeal. By a divided vote, we concluded that in this setting, the

exaction of such a condition is impermissible.

In its motion for reconsideration, the Service no longer ques-

tions the power of the special inquiry officer or this Board to

review the District Director's bond determination in all respects. It

argues strongly against the position taken by the majority of this

Board that the bond condition here imposed is unreasonable.

Preliminarily, the Service questions Sur definition of the issue.

In our opinion of September 7, 1972, we stated (at p. 8):

While it is a bond condition which in form confronts us, in reality the issue

directly involves detention. If the respondents refuse to agree to the condition

laid down by the District Director, i.e., that they shall not accept employment

unauthorized by him, they will simply be continued in custody until the adjudi-

cation of their deportability becomes final and they can be deported.

After analyzing the reported decisions relating to detention of

aliens, we then proceeded to hold that the "no unauthorized

employment" provision cannot in this setting be exacted as a

condition of the respondents' release from detention in deportation

proceedings.

Detention, argues the Service, is not directly involved. "The

penalty is not detention in the event of a vidlation of the bond, but

the loss of the $500" (Motion for Reconsideration, p. 7). 2The Service

points to the new and broad language of the power conferred in

section 242(a) of the Immigration and Nationality Act, which

permits release under bond "containing such conditions as the

z On the same day, we dismissed the respondents' appeals from the orders

entered in the deportation proceedings, finding them to be deportable. Petitions

for review of our orders in the deportation proceedings were later filed under

section 106(a) of the Immigration and Nationality Act in the United States Court

of Appeals for the Ninth Circuit. We are informed that on January 2, 1973 the

petitions for review were dismissed.

2 See also Service Memorandum in Opposition to Brief Amiens Curiae, page 5:

"The brief cordons curiae is premised in large part on the erroneous assumption

that 'bond conditions' and 'custody' are necessarily synonymous. The purpose of

the bond condition, in this instance, is to act as a deterrent to continued acts in

flagrant violation of the immigration laws. The threat of forfeiture of the bond is

a deterrent. Custody is something else. Even if the bond is breached, it by no

means follows that confinement is desirable or indicated, or will necessarily take

place. That decision, too, must rest in the sound discretion of the District

Director, based on a new and different set of considerations."

539

Interim Decision #2256

Attorney General may prescribe." It is the Service position that

the decisions arising under the former statute and those dealing

solely with custody do not supply the proper standards to measure

the validity of the bond conditions newly authorized by the 1952

Act (Service Memorandum in Opposition to Brief Amiens Curiae,

pages 2-5).

Such a simplistic approach ignores the realities of the situation.

It seems clear to us that detention permeates every bond such as

those here involved. A bond is merely an undertaking by the

obligor that he will perform the conditions specified or pay the

stipulated penal sum. But before any such undertaking, contain-

ing any conditions, can be exacted, there must be some leverage

which can be applied to the obligor to induce him to become thus

bound. In this case, it is detention which supplies the leverage.

In the case of an alien applying for admission to the United

States as a nonimmigrant, if there is doubt as to whether he will

maintain his status once admitted, a maintenance of status and

departure bond can be exacted as a condition of his admission. If

he fails to post the bond, he is excluded from admission. The threat

of exclusion is the leverage which induces such an alien to post

bond.

In the case of an alien admitted to the United States as a

nonimmigrant who applies for an extension of stay, if there is

doubt as to whether he will continue to maintain his nonimmi-

grant status, a maintenance of status and departure bond can be

exacted as a condition of the grant of an extension of stay. If he

fails to post the bond, the extension of stay is denied and he must

depart or face deportation proceedings. The threat of denial of the

extension of stay is the leverage which induces such an alien to

post bond.

In deportation proceedings brought against an alien already

within the United States, arrest and temporary custody of the

alien are no longer required in every case. Section 242(a) of the Act

now provides that, pending determination of deportability "such

alien may, upon warrant of the Attorney General, be arrested and

taken into custody." (Emphasis added.) Most deportation proceed-

ings now are started by the issuance of an Order to Show Cause

alone, without the issuance of a warrant of arrest. It is only where

the alien is arrested that the ensuing provisions of section 242(a)

come into play. The statute continues:

... 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 WO

with security approved by the Attorney General, containing such conditions as

the Attorney General may prescribe; or (3) be released on conditional parole....

540

Interim Decision #2256

Thus, the bond posted by a detained alien, whatever its cond-

tions, is an alternative to detention. Unless released on bond or

conditional parole, the alien is continued in custody. Where the

power to detain ceases by time limitation, as is the case under

section 242(d) of the Act, the power to require bond as a condition

of enlargement ceases, too, Schrode v. Rowoldt, 213 F.2d 810 (CA.

8, 1954). Thus, it is the power to detain, coupled with the threat of

detention, which is the leverage which induces an alien in deporta-

tion proceedings to post bond.

That the bond may contain discrete conditions (including the

one here in question, having nothing to do with the alien's

availability for hearing or deportation) does not alter the fact that,

unless the alien is willing to bind himself to each of the required

conditions, he will not gain release from detention. It is immaterial

that the Service may, on breach of the condition, be content to

collect the penal sum and refrain from once more taking the alien

,into custody (see footnote 2, supra). What concerns us here is the

power of the Service to exact such a commitment as a condition of

release in the first place, not what action the Service may or may

not take once the commitment has been violated. The respondents

posted bond containing the contested condition and gained their

release, but this was solely on the agreement that they would not

thereby prejudice their challenge on appeal to the lawfulness of

that condition. Had there been no such agreement and had the

aliens remained in custody, could there be any doubt that the

condition insisted on by the District Director would have been

directly related to their detention? We adhere to the view that the

issue before us directly involves the power to detain and that the

considerations governing release from detention apply.

In short, we reject the notion that when the District Director

exercises the Attorney General's delegated power to presciibe

bond conditions conferred by section 242(a) of the Act, he is not

simultaneously involved in a direct application of the detention

power conveyed by the same provision. The court decisions cited in

our original opinion, which discuss the factors pertinent ito the

detention of aliens in deportation proceedings, are clearly ger-

mane.3

3 Admittedly, no court has thus far dealt with the precise bond condition now

before us, for its use by the Service is concededly novel. At the same time, we are

entitled to consider what the courts have said generally on the subject in

dealing with questions of enlargement from Service custody and similar issues.

See, e.g., Low May Ma v. Barber, 357 U.S. 185, 190 (1958): "Physical detention of

aliens is now the exception, not the rule, and is generally employed only, as to

security risks or those likely to abscond ... Certainly this policy reflects the

541

Interim Decision #2256

The provisions of section 242 of the Act relating to the arrest,

release, and supervision of aliens in deportation proceedings were

designed primarily to see to the alien's continued availability for

hearing when required and for deportation if found deportable.

The provision authorizing bond "containing such conditions as the

Attorney General may prescribe," while stated in general terms,

must be read in the context of the statutory scheme. Cf. United

States v. Witkovich, 353 U.S. 194 (1957).

For purposes of this decision, we need not define in legal terms

the nature of respondents' employment opportunities pending

their actual deportation. At oral argument (Tr. p. 12 et seq),

counsel for the respondents argued that every alien in the United

States, even an alien here unlawfully, has a constitutionally

protected right to earn a living, i.e., to hold down a job. We need

not pause to consider whether the respondents' undoubted power,

if unmolested, to maintain their positions with California Originals

is properly classifiable as a right, a privilege, or merely an illicit

opportunity. While their continued employment may be unlawful

in the sense that it violates the policies of our immigration laws,

the fact remains that no law now on the'books makes it a crime for

them to be thus employed. The only civil sanction for such

unauthorized employment is deportation. Since the respondents

are already deportable on other grounds, their continued employ-

ment until such time as they are actually deported, however

unlawful such employment may be, does not make them any more

deportable than they already are.

In seeking to justify in a deportation context this new bond

condition against unauthorized employment, the Service empha-

sizes the deterrent effect of the monetary forfeiture provision and

disavows any general Service policy of rearresting the recalcitrant

alien who violates the condition once released. We fail to see how

such forebearance is pertinent to the issue before us. It as we

have held, the imposition of this bond condition is impermissible as

a prerequisite to release from detention in the first place, it

receives no added sanction by the Service's representation that it

will refrain from rearresting the alien if on release he breaches the

impermissible condition.

Moreover, unless to the threat of monetary loss in the event of

breach there is added the threat of renewed detention, this new

bond condition becomes in effect a mere licensing provision, the

exaction of a fee from those aliens (or their employers) willing to

humane qualities of an enlightened civilization;" United States v. Wong Kim Bo,

466 1.'.2d 1298, 1304 (C.A. 5, 1972); "II.5 (arrest's] sole function is a security device

to fissure that the alien does not evaporate."

542

Interim Decision #2256

pay it, for what amounts to a license to work here illegally until

deported. To be truly effective as a deterrent, the penal amount of

the bond would have to be raised to a figure sufficiently high to

make a forfeiture really painful. But the fixing of such high bail

could readily preclude the alien from raising the required amount

and thus prevent his release from detention in the first place, a

result which the Service says it does not seek.'

In arguing for the power to impose the work-prohibition condi-

tion here in issue, the Service disavows any intention of using that

power extensively and indiscriminately, stating that "its actual

use would be confined to a flagrant violation such as we have

here" (Motion for Reconsideration, p. 8). Esentially, it is the fact

that the respondents work for California Originals that is crucial;

if they worked illegally for some other employer the same bond

condition would probably not be imposed (Tr. of oral argument, p.

27). If the imposition of this bond condition is impermissible

against deportable aliens generally, then' its use against respond-

ents because they work for California Originals constitutes, in

effect, a Service attempt to use their detention as leverage against

their employer. In our view, the use of the detention power in

order to reach an employer who has displeased the Service is

equally impermissible.

The Service attempts to equate the bond condition here involved

with the maintenance of status provisions of bonds authorized in

the cases of applicants for admission as nonimmigrants or for

extension of nonimmigrant stay. "Since aliens are admitted to the

United States with a restriction mandated by the Congress

against their taking unauthorized employment, it is not seen why

the same restriction is unreasonable when applied to a bond for a

deportable alien who would clearly [have been] excludable at time

of admission if his intent to accept employment were known"

(Motion for Reconsideration, p. 12). The short answer is that, as

the Service recognized at oral argument (Tr. p. 27), a deportable

alien is out of status and no longer has a lawful status which the

bond provision can induce him to maintain. Different considera-

tions are involved in the cases of nonimmigrant applicants who

arc in lawful status and in the cases of deportable aliens who have

allegedly lost their right to remain here lawfully. In the case of the

latter, as we have seen, the bond condition in question is not a

guarantor that they will maintain their lawful status but an

impingement on their release from detention while their deporta-

bility is in process of adjudication. If the condition sought to be

4 Motion for Reconsideration, p. 7! "The Service does not seek the aliens' deten-

tion. It wishes them released, for their sake and to minimize further expense to

the government, if for no other reasons ..."

543

Interim Decision #2256

imposed is an impermissible one, it is no answer to suggest that, in

any event, "review jurisdiction is with the Board and the courts"

(Motion for. Reconsideration, p. 9)

In our original decision, we suggested that expedited deporta-

tion, rather than detention, is the way to thwart illegal employ-

ment by deportable aliens. In its Motion for Reconsideration (p. 15)

the Service challenges our suggestion, asserting that "frivolous

and dilatory appeals, and the inescapable strictures of overloaded

court calendars, tend to make this remedy [expeditious forcible

expulsion] more illusory than meaningfuL" If existing procedures

have flaws which open the door to delay, then it seems to us that

the proper way to deal with the situation is to revise and refine

the procedures. The use of detention as leverage to discourage

delay which existing procedures may make possible is not, in our

view, a permissible way to cope with the problem, Matter of Au,

,

Interim Decision No. 1939 (BIA 1968); Matter of Moan, Interim

Decision No. 2021 (BIA 1969, 1970).

ORDER: The motion for reconsideration is denied.

Wiskicn IL Torrington, Member, Tlicconting:

In my previous dissenting opinion, I stated the following: "The

cases cited on page 8 of the majority opinion have no relation to

the issue that is before us. That issue is simply whether the

condition here sought to be imposed is reasonable or not." In its

opinion of September 7, 1972, the majority had declared the bond

condition against unlawful employment to be "unreasonable,"

although it could not find any authorities supporting its holding

which contravenes the clear provisions of section 242(a) of the

Immigration and Nationality Act.

As the new opinion which denies the Service's motion for

reconsideration reveals, the majority has still found nothing to

support its thesis that an alien who, under the applicable law,

must be deported, has, by the very fact of his previous violations of

our laws and his ensuing deportability, gained the right further to

violate the laws of the United States until he is actually deported.

I have to disassociate myself from that kind of illogical and

tortured reasoning.

While the verbiage employed in the new majority opinion ap-

pears to have little relation to the issue, and merely tends to

obscure it, it does constitute a belated attempt to provide some

underpinning for the original majority opinion's theories, and

therefore cannot be passed over without comment.

1. Although it speaks of "the realities of the situation," the

majority opinion continues its ivory-tower approach to the facts

and the law. Instead of addressing itself to the issue, it talks about

Interim Decision #2256

aliens applying for admission to the United States as nonimmi-

grants and about aliens applying for extensions of stay, and

reports its discovery that such aliens do indeed post bonds requir-

ing them to abide by the laws of our country. That is nothing new;

and it has, of course, nothing to do with the issue. The issue is not

the application of a newly invented theory of "leverages," but

simply whether the statute (section 242(a) of the Immigration and

Nationality Act) denies to the Attorney General the power to

require deportable aliens not to continue previous violations of our

laws. It does no such thing.

2. As I pointed out in my previous dissent, the majority has not

gone so far as to maintain that a bond condition against unlawful

employment is unconstitutional, illegal, or immoral. It has merely

attempted to misconstrue a clear provision of the statute which

needs no construction. It has stated that, "We need not pause to

consider whether the respondents' undoubted power, if unmo-

lested, to maintain their positions with Califrnia Originals is

properly classifiable as a right, a privilege, or merely an illicit

opportunity." It would have been refreshing if the majority had

indeed "paused" to state, in straightforward language, the rather

elementary principle that a nonimmigrant alien has no right

whatsoever to engage in unauthorized employment at any stage

of his stay in the United States. The majority's refusal to "define

in legal terms the nature of respondents' employment opportuni-

ties pending their actual deportation" (as the majority opinion

puts it) reveals an astounding indifference to that elementary

principle. Even more objectionable is the majority opinion's use of

loose language which regrettably and wrongly implies that the

respondents' illegal employment just "may be" unlawful.

3. On page 9 of its opinion of September 7, 1972, the majority had

stated that "The Service candidly concedes that the use of the 'no

unauthorized employment' condition in an appearance and deliv-

ery bond to secure the release of an alien in deportation proceed-

ings is novel." The present majority opinion again insists that the

bond condition with which we are here concerned constitutes

something "new." What the Service, through its appellate trial

attorney, had stated at oral argument conducted through an

experimental and unsatisfactory telephone hook-up on August 14,

1972, was quite different. There, in explanation of his answer to a

leading question put to him by the writer of the majority opinions,

the appellate trial attorney stated the following: "You are talking

now about or in connection with an appearance bond after depor-

tation proceedings, that narrow area. I would say yes, we have not

gone this route, certainly not many times to my knowledge..." (Tr.

of Oral Argument, page 24). The plain fact is that no survey

545

Interim Decision #2256

determining the frequency of the imposition of the bond condition

here involved has ever been made. What is really "novel" is,

however, the following:

a. The fact that, up to now, nobody had advanced the notion

that, as I put it in my prior dissenting opinion, the Immigration

and Nationality Act directs "the Attorney General to stand idly by

while aliens who, being represented by experienced immigration

counsel, have admitted the truth of the allegations in the orders to

show cause, and have conceded their deportability, flagrantly

violate the immigration laws of the United States;" and that a

bond condition against unlawful employment is therefore "unrea-

sonable."

b. The fact that only in recent years aliens have entered this

country illegally by the hundreds of thousands.

c. The fact, that, through employment of experienced immigra-

tion counsel, and through imaginative use of all conceivable

administrative and other remedies, aliens illegally in this country

are nowadays often managing to stay here for years.

d. The fact that the huge numbers of aliens now illegally in this

country are taking away countless jobs from our citizens and from

lawful permanent residents, and that their illegal employment

tends to depress the wages that would normally be paid to

American workers.

e. The fact that those aliens now illegally in this coutry who

• choose not to work collect welfare payments, and obtain free

medical care at our hospitals, and that the children of illegal aliens

obtain free schooling, all to the detriment of the American taxpay-

ers.

f. The fact that the Service, with its limited personnel, can no

longer cope with the tremendous illegal influx of aliens, and is

attempting, through increased use of bond conditions like the one

here under consideration, to make it less profitable for illegal

aliens to engage in the prevalent whoesale violations of our

immigration laws.

4. A number of undisputed and irrelevant facts are reported in

the majority opinion as great revelations. It is quite true that,

"Most deportation proceedings now are started by the issuance of

an order to show cause alone, without the issuance of a warrant of

arrest." So what? That simple question can also be asked with

regard to the majority's statement that "detention permeates

every bond such as those here involved." The issue before us was

not, and is not, the manner in which deportation proceedings may

be commenced, or the permeability or permeation of bonds, but

simply whether the bond condition against unlawful employment,

which the Attorney General, through the District Director, has

546

Interim Decision #2256

imposed on admittedly deportable aliens engaged in unlawful

employment is so unreasonable that it cannot be imposed by him

under the rather clear provisions of section 242(a) of the Immigra-

tion and Nationality Act.

5. In both the majority opinions and the dissenting opinions, we

have discussed the matter before us in terms of the powers of the

Attorney General under section 242(a) of the Immigration and

Nationality Act. However, we must not forget that much more is

involved. The Attorney General is the chief law enforcement

officer of the United States. Thus, the views of the majority which

have found expression in its unfortunate decision would be a

major step toward preventing the United States from effectively

protecting its people against continual wholesale violations of our

most humane immigration laws.

6. I reject the majority's unjustified concern for admitted-law

breakers, and its underlying permissive ideology and -Vews here

expressed which, in my considered opinion, would go a long way

toward frustrating the orderly and just administration of our

immigration laws.

On reconsideration, the Board order of September 7, 1972,

should have been withdrawn, and the Service appeal should have

been sustained.

In my dissenting opinion of September 7, 1972, I reported that

the majority had resolved not to accede to the request of the two

dissenting Board Members that the Board's decision be referred to

the Attorney General. On reconsideration of this matter, one of

the members of the majority has now joined us in requesting that

such a referral be made. Thus, the Board's decisions will have to

be submitted to the Attorney General for his scrutiny and review,

in compliance with the provisions of 8 CFR 3.1(h)(1Xii).

Marianne B. McConnaughey, Member, Dissenting:

It is necessary to put this controversy back into proper perspec-

tive, stripped of extraneous arguments. It is not necessary to

restate here the statute and regulations which were set forth in

our original decisions. The Service memorandum in opposition to

the brief amicus curiae (Dec. 19, 1972) outlines the development of

the bond provision from the 1917 Act to the present amended

broad language of 242(a) of the 1952 Immigration and Nationality

Act.

There are two positions here which run a head-on collision

course. Either: (1) The bond provision was an abuse of discretion,

and the aliens have a constitutional and absolute right to remain

here and to work without interference, even though they work

547

Interim Decision #2256

illegally, while they litigate their frivolous appeals through the

Board and the courts; or (2) the Attorney General's power to

prescribe the terms of bonds, arrest, release, detention, re-arrest

and parole of illegal aliens was exercised in these proceedings in a

rational and appropriate manner in accordance with the regula-

tions.

If position (1) above, is true, the Attorney General has not the

power under the statute and regulations to change bond provi-

sions or, if the need arises, to create new bond provisions. The

majority of the Board denies the Service motion for reconsidera-

tion and again quotes from section 242(a) of the Immigration and

Nationality Act, but again they ignore the second sentence of that

section which gives the Attorney General the authority to re-

arrest, to revoke the bond approval, and to detain the alien until

"final determination of his deportability".

There appears to be little controversy regarding the Attorney

General's discretion in the matter of bail pending deportation

proceedings. Under section 103(a) of the Act, (8 U.S.C. 1103) the

Attorney General has broad authority to establish regulations to

carry out his authority. Bilbao-Bastida v. I&NS, 409 F.2d 820 (CA.

9, 1969), cert. dism. 396 U.S. 802 (1969). The regulations of the

Attorney General must be upheld if they are founded on consider-

ations rationally related to the statutes he is administering. Fook

Hong Mak v. I&NS, 43b F.2d 728, 730 (C.A. 2, 1970). Furthermore,

the Attorney General's exercise of discretion will "be overturned

only by a showing of clear abuse," by demonstrating that the

Attorney General's action "was without reasonable foundation".

Carlson v. Landon, 342 U.S. 524, 540-41 (1952); U.S. ex rel Belfrage

v. Shaughnessy, 212 F.2d 128, 129 (C.A. 2, 1954); U.S. ex rel Polash

v. District Director, 169 F.2d 747, 751 (C.A. 2, 1948). The recent U.S.

ex rel Barbour v. District Director, SA-72-CA-367 (U.S.D.C. Texas

1973), states that the court must not substitute its judgment for

that of the Attorney General's, and that review is limited to

ascertaining if there is substantial evidence in the record to

support the factual basis upon which his discretionary decision

rests, citing Jarecha v. INS, 417 F.2d 220, 224-25 (C.A. 5, 1969), and

Application of Maringolo, 303 F. Supp. 1389, 1392 (S.D.N.Y. 1969).

It must be remembered that in Carlson v. Landon, supra, and in

Barbour, supra, bail had been denied entirely, and it was held in

both cases that denial of bail was not an abuse of discretion. If the

Attorney General has the power to detain, surely he has the power

to fix bond conditions. The lesser power is included in the greater

power. The majority finds the new bond provision "impermissible",

but I do not yet know why it is "impermissible". The respondents

were not held without bail nor was "excessive" bail imposed. They

548

Interim Decision #2256

were released on the minimum bond (POO) provided by the

statute.

The majority argues that the "threat of detention is the lever-

age which induces the obligor to post the bond." This, of course, is

obvious. Anyone who posts a bond and agrees to comply with bond

provisions does so in order to secure his release from detention.

The threat of arrest and detention is always present and within

the hands of the Attorney General. The alien, illegally here and

illegally employed, is gambling that the leverage will not be used,

or at least that he will not be apprehended immediately and, if

apprehended; will not be detained. His past experience has shown

him that he has a good chance of winning the gamble:

The argument goes further, saying that the bond is "impermissi-

ble" as a maintenance-of-status bond, because the alien is already

out of status, and therefore he has no status to maintain. In

response, I have pointed out that the alien in the United States

legally in the status of visitor or student has no "right" to work;

the statute and the regulations do not contemplate that an alien

illegally in the United States has a "constitutional" or "legally

protected" right to work - "unmolested" is the word used in the

brief amicus. As the Service memorandum in opposition to brief

amicus, December 19, 1972, notes, "Section 242(a) does for deporta-

tion proceedings what Section 212(d)(6) does for exclusion proceed-

ings. ...`no-work' conditions are routine under Section 212(d)(6).

There is no reason for a different rule under Section 242". It is

admitted that the use of the bond condition in these circumstances

is new, but it is not different from other maintenance-of-Status

bonds.

The factor which most concerns the majority, I believe, and has

concerned me, is they fear that the power to detain could be used

widely and abusively to prevent aliens from taking their appeals.

It is possible that most powers can be abused in the absence of

restraints. The courts and this Board would be very watchful to

insure that abuses would not occur. The alien has a right to appeal

and to litigate, even frivolously. It would be an abuse of the

Attorney General's discretion in bond matters if the power were

used solely as a device to defeat an appeal. This was not the

situation in the cases now before us.

In these cases the aliens were repeated offenders. They might

have been continued in detention until deportation proceedings

were complete. Instead of being detained, they were released upon

posting a bond containing a new provision. The new bond condi-

tion (that the aliens not return to the unauthorized employment)

is rationally and reasonably related to the purposes of the statute.

It did not constitute an abuse of the Attorney General's discretion

549

Interim Decision #2256

under the aggravated circumstances of this case. The use of the

bond condition should be sustained.

BEFORE THE BOARD

(April 6, 1973)

ORDER; The majority of the Board having concluded that this

case should be referred to the Attorney General for review of the

Board's decision, the record is referred to the Attorney General

pursuant to S CFR 3.1(h)(ii).

BEFORE THE ATTORNEY GENERAL

(January 9, 1974)

The Board of Immigration Appeals, pursuant to 8 CFR 3.1(h)(ii),

referred this case to me for review. On September 7, 1972, the

Board dismissed the appeal of the Immigration and Naturaliza-

tion Service from the decision of a special inquiry officer who had

deleted a bond condition prohibiting unauthorized employment,

which the Service had utilized in connection with deportation

proceedings. Thereafter, the Board denied the Service's motion for

reconsideration of the Board's prior decision and, on April 6, 1973,

the Board referred the matter to me.

The facts, as set forth in the decisions of the Board and in the

Service's motion, are as follows: The respondents in the deporta-

tion proceedings were ten aliens, each of whom was a native and

citizen of Mexico. At the time the deportation proceedings were

commenced, all of the respondents were employed by California

Originals, a ceramics manufacturer located in Torrance, Califor-

nia. iThe respondents were arrested by the Service at the start of

the deportation proceedings, and, pending a hearing, the group

was released on a single bond. The bond contained a condition,

inserted by the District Director, providing in effect that the

respondents would not accept any employment without authoriza-

tion of the Service?

Subsequently, the special inquiry officer entered orders finding

each of the respondents to be deportable. Five were deportable for

1 Each of the respondents had worked for California Originals during a prior

period of unlawful presence in the United States. Then, after leaving the United

States, each had returned illegally for the purpose of resuming employment at

California Originals.

2 The condition had been approved, pursuant to 8 CFR 103.6(a), by the

Regional Commissioner. The pertinent language of the bond is set forth below in

Appendix A.

Prior to the present case, no such condition had ever been included in a bond

used in connection with deportation proceedings.

550

Interim Decision #2256

having entered the United States without inspection; and the

others, for having remained longer than permitted after having

been admitted as visitors. Each respondent conceded deportability.

The first bond was vacated and individual bonds for each alien

were substituted. Thereafter, the special inquiry officer reduced

the amount of each of the bonds to $500 (from $1000). The District

Director prepared new bonds, all of which contained the condition

regarding employment.

At the request of counsel for the respondents, the special inquiry

officer reopened the bond proceedings 5and, after a hearing, deleted

the condition concerning employment. He held that the District

Director had no authority to include such a condition in an

appearance-and-delivery bond. The special inquiry officer stayed

execution of his order, pending the Service's appeal to the Board.

On August 14, 1972, the Board heard argument regarding the

Service's appeal. Under protest, the respondents posted bonds

containing the disputed condition and were released.

On September 7, the Board entered an order, with two members

dissenting, dismissing the Service's appeal in the bond proceeding

and a separate order dismissing the appeals of the respondents

from the orders of deportation.4In support of the farmer order, the

majority of the Board stated that the primary purpose of bonds

used in connection with deportation proceedings (i.e., bonds au-

thorized by section 242(a) of the Immigration and Nationality Act,

8 U.S.C. 1252(a)) is to assure that the alien will appear at hearings

and, if ordered deported, will be available for deportation. Accord-

ing to the majority, the use of such a bond to deal with the

unrelated problem of illegal employment was not permissible.

At the request of the Service, the Board stayed execution of its

order regarding the bond condition, pending the filing of and

determination of a Service motion for reconsideration. The re-

spondents then returned to their employment at California Origi-

nals. The District Director had advised them that such employ-

ment would be regarded as breach of the bonds.

On October 5, the Service filed its motion for reconsideration. 50n

3 The pertinent regulation, S CFI 2422(b), provides that proceedings regard-

ing bonds or custody are to be separate from deportation proceedings and are to

have separate records.

4 Subsequently, the respondents filed in the United States Court of Appeals for

the Ninth Circuit petitions for review of the Board's order in the deportation

proceedings. The petitions had the effect of staying the order of deportation. See

8 U.S.C. 1105(aX3). On January 5, 197,3, the petitions were dismissed by the Court

of Appeals.

5 Briefs opposing the motion for reconsideration were filed by the respondents

and by the Association of Immigration and Nationality Lawyers, as amicus

curiae.

551

Interim Decision #2256

April 6, 1973, the Board, again by a vote of three to two, denied the

motion for reconsideration. The majority, relying in part upon

judicial rulings regarding the grounds which warrant detention of

an alien, held that the Service has no authority to impose, in an

appearance-and-delivery bond, a condition limiting employment,

and that at present the only civil sanction to deal with the

employment of aliens here illegally is their deportation.

As noted above, the Board referred this matter to me, staying

execution of its orders regarding the bond condition, pending my

decision.6

The basic issues presented are (1) whether the Immigration and

Nationality Act authorized the inclusion, in a bond required in

connection with deportation proceedings, of a condition prohibiting

unauthorized employment; and, if so, (2) whether use of such a

condition in the circumstances of this case was proper.

The most pertinent statutory provision is section 242(a) of the

Immigration and Nationality Act (the "Act"), 8 U.S.C. 1252(a).

That subsection provides in part that, pending a determination of

deportability, an alien who has been taken into custody may, in

the discretion of the Attorney General, (1) be continued in custody,

(2) be released under bond containing such conditions as the

Attorney General may prescribe or (3) be released on conditional

parole?

The position taken by the Service in this case may be summa-

rized as follows: Under section 242(a) of the Act, and the related

regulations,8 the Service has broad authority with respect to such

matters as determining bond conditions. In assessing the validity

of a particular condition, the test is one of reasonableness. The

a Statements contained in the record in this case indicate that two of the

respondents had left the United States prior to the Board's decision of April 6,

1978.

Information obtained from the Service after the referral to me indicates that

the remaining eight respondents were ordered to appear for deportation on

February 14, 1973, that five of them did appear and were deported on February

14, and that the remaining three did not appear and had not yet been located by

the Service.

Thus, significant changes in the circumstances of the respondents have taken

place since the filing of the Service's appeal in the bond proceeding. Nonetheless,

it does not appear that the basic legal question is moot. For example, a decision

that use of the condition regarding employment was proper might lead to action

by the Service to enforce that condition. Cf. Watzek v. United States, 134 F. Supp.

605 (S.D.N.Y., 1955); Earle v. United States, 254 F.2d 384 (CA. 2), cert. den., 358

U.S. 822 (1958). In any event, the question is one which may recur and a decision

by me, in the present case, is appropriate. e ,

7 Subsection 242(a) is set forth in its entirety in Appendix B.

a See 8 UNIC 2442(a). The regulations are Issued under a delegaLiun of

authority from the Attorney General. 28 CFR 0.105(b).

552

Interim Decision #2256

present case involves flagrant violation of the immigration

laws,9 and in these circumstances use of the condition concerning

employment was reasonable.

As noted above, the majority of the Board, in its original

decision and on rehearing, rejected the position of the Service. The

majority recognized that the immigration laws did not permit the

respondents to be employed in the United States, but held that the

illegality of their employment did not provide a basis either for

detention or for a condition in a bond which bond represented an

alternative to detention. 1°

For reasons to be explained, my conclusions are as follows: The

pertinent statutory provisions authorize, in at least some circum-

stances, the inclusion in appearance-and-delivery bonds of condi-

tions which bar unauthorized employment. However, the use of

such conditions should be specifically governed by a published

regulation of the Service. Because no such regulation exists, the

result reached by the majority of the Board should be sustained.

The provisions of section 242 of the Act deal with the several

stages of the deportation process. In the proceedings before the

Board, primary emphasis was placed upon section 242(a), concern-

ing custody, release and related matters "pending...ta] final deter-

mination of deportability."l'However, since the orders of deporta-

tion of the respondents became final after the Board's initial

decision, section 242(c) is also pertinent. That provision affords the

Attorney General a period of six months following the entry of a

final deportation order in which to effect the alien's departure

from the United States. During that period the Attorney General

has discretion to detain the alien, release him on bond "containing

such conditions as the Attorney General may prescribe," or release

him on other conditions prescribed by the Attorney General.

The legislative history of sections 242(a) and (c), which were

enacted in 1952 but derived from section 23 of the Subversive

9 The factors stressed by the Service are the following: (1) a group, consisting

of at least ten unlawful aliens, is involved; (2) most of the aliens are previous

immigration violators who re-entered the United States for the specific purpose

of resuming employment at California Originals: (3) all of the respondents are

clearly deportable and their appeals are designed solely for delay; (4) there was

every reason to believe that the aliens would immediately resume their unau-

thorized employment; and (5) if standard wages were paid, persons in the United

States would be available to fill the positions.

10 The two members of the Board who dissented expressed the view that the

Attorney General has broad discretion concerning bond conditions and that the

condition used in this case was, in view of the particular facts, reasonable and

proper.

11 Section 242(a) is quoted in Appendix B.

553

Interim Decision #2256

Activities Control Act of 1950,12indicates that Congress intended to

give the Attorney General broad discretion regarding the matter

of release on bond or otherwise. The nature and scope of this 1950

legislation, which clarified prior law, were explained as follows in

the House and Senate Committee Reports: 13

The bill will expressly authorize the Attorney General, in his discretion, to

hold arrested aliens in custody, or to release them under bond or on conditional

parole, pending final determination of their deportability and for a 6-month

period after an order of deportation is issued and while such negotiations (with

officials of foreign governments] take place. The bill further provides that

among the conditions of any bond exacted, or in the terms of release on parole,

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 and for

deportation if he is found subject to that action. A similar provision relates to

release on bond or parole for 6 months after the alien has been ordered de-

ported. These provisions, of course, enumerate only one of the conditions which

is mandatory in the bond or as a parole condition. The 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. 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 whereab-

outs 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 less amount or other condi-

tions shall be furnished. The 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 and for 6 months after an order of deportation

has been issued against him.* * *

It would be unreasonable to construe the quoted language to

mean that the Attorney General may impose bond conditions

which are totally unrelated to the various purposes of the immi-

gration laws, but the reports clearly demonstrate a Congressional

intent to grant wide discretion otherwise."

12 64 Stet. 987, 1010 (1950). Sections 242(a) and (e) were enacted as part of the

Immigration and Nationality Act of 1952, see S. Rep. No. 1137, 82d Cong., 2d

Sess., p. 29 (1952); H. R. Rep. No. 1365, 82d Cong., 2d Sess. (1952), p. 57.

The quotation is from H.R. Rep. No. 1192, 81st Cong., 1st Sess. p. 6 (1949).

The same language appears in S. Rep. No. 2239, 81st Cong., 2d Sess. p. 5 (1950).

These reports related to a bill, H.R. 10, which was not enacted. However, the

provisions of H.R. 10 were, with one minor exception, incorporated into § 23 of

the Subversive Activities Control Act of 1950. See the Senate report on the 1950

Act, S. Rep. No. 2369, 81st Cong., 2d Sess. p. 14 (1950). Accordingly, the reports on

H.R. 10 can appropriately be regarded as part of the legislative history of the

1950 Act.

14 It should be noted that the reports' statements concerning the "full discre-

tion" and "untrammeled authority" of the Attorney General with respect to

bond conditions and related matters apply to the period before a final order of

deportation, as well as to the six-month period following such an order.

554

Interim Decision #2256

There are statutory provisions other than section 242 which are

pertinent. Under section 103(a) of the Act, 8 U.S.C. 1103(a), the

Attorney General is given general responsibility over administra-

tion and enforcement of the immigration and naturalization laws,

and he is directed to "establish such regulations; prescribe such

forms of bond ... and other papers; ... and perform such other

acts as he deems necessary [to implement such laws]." In Earle

v. United States, 254 F2d 384, 387 (C.A. 2), cert. denied, 358 U.S.

822 (1958), the court relied on section 103(a), as well as upon section

214(a), 8 U.S.C. 1184(a), in upholding the validity of a regulation

calling for use of maintenance-of-status conditions in bonds re-

quired for admission of nonimmigrants. 15 The court in Earle went

on to say that, without regard to specific statutory authorization,

such a condition could be required on the basis of the Attorney

General's broad power to regulate the admission of nonimmi-

grants."

It is generally agreed that a basic purpose of the immigration

laws is to protect against the displacement of workers in the

United States 1 7 Thus, under an approach similar to that used in

Earle, it may be that section 103(a) and the Attorney General's

broad authority to enforce the immigration laws afford an inde-

pendent basis for requiring of persons subject to deportation

proceedings bonds prohibiting unauthorized employment. Such

bonds are frequent,ly required of nonimmigrant aliens seeking

either admission to the United States or an extension of their

stay." It may be proper to impose a similar requirement upon

aliens who become subject to deportation proceedings. The result

would be a bond serving two related but independent purposes. 19

None of the statutory provisions discussed above has given rise

to a judicial decision dealing specifically with a bond condition of

the kind at issue here. Although the Board cites a number of

judicial precedents in this connection, I find that they relate

mainly to the detention of aliens. Thus, in Carlson AT, Landon, 342

U.S. 524 (1952), the Court, with four Justices dissenting, upheld the

denial of bail to certain aliens who belonged to the Communist

Party, pending determinations of deportability, on the ground that

18 That is, a condition requiring the alien to maintain the status under which

he was admitted as a nonimmigrant.

Section 214(a) relates to conditions in bonds required for the admission of

nonimmigrant aliens.

18 Cf. Illinois Surety Co. v. United States, 229 F. 527, 532 (C.A. 2, 1916).

" See section 101(aX15), 8 U.S.C. 1101(a)(15) and section 212(aX14), 8 U.S.C.

1182(aX14); and 8 CFR 214.1(c).

18 See section 214(a), 8 U.S.C. 1184(a); 8 CFR 214.1(a).

18 Cf. the dissents of Member McConnaughey.

555

Interim Decision #2256

their release could pose threats to national security or public

safety. In Rubenstein v. Brownell, 206 F.2d 449, 456 (D.C. Cir.,

1953), aff'd per curiam by an equally divided court, 346 U.S. 929

(1954), the Court of Appeals stated that detention of the alien (who

was seeking judicial review of an administrative order of deporta-

tion) would be improper since there was no indication that he

would abscond or engage in subversive or criminal activity. An-

other of the cases referred to by the Board, United States v.

Witkovich, 353 U.S. 194 (1957), related to the supervision, under

section 242(d), of an alien who was subject to a deportation order

that had been outstanding for more than six months. The Court

held that the authority of the Attorney General to require infor-

mation from the alien during the period of supervision was

restricted to matters relating to his availability for deportation 2 0

In my opinion, neither the above cases nor any other judicial

ruling forecloses the possibility of utilizing, on the basis of section

242(a) or (c), a bond condition prohibiting unauthorized employ-

ment. Even under the most narrow reading of those provisions,

there are situations in which use of an employment condition

would be proper. For example, there may be cases in which an

alien's past employment would have a direct bearing upon his

availability for hearings or deportation or upon national security.°

At the very least, in such cases, use of an employment condition

would be proper with respect to the six-month period following a

final order of deportation 2s In addition, the various purposes of

the immigration laws, including safeguarding employment oppor-

tunities for legal residents, may suggest the appropriateness of

various bond conditions.

I am thus of the view that there is authority in sections 242 and

103 for the Service to require, in some circumstances, a bond

condition prohibiting unauthorized employment. Nevertheless, I

believe for a number of reasons that before a condition of that

nature is imposed, there should be a regulation of the Service

dealing specifically with the subject.23

22 In Witkovich, the Court noted that the period of supervision of an undeport-

able alien might last for the remainder of his life; the Court distinguished

C orison v. Landon for the reason that it involved detention "during the

customarily brief period pending determination of deportability." 353 U.S. at 201.

21 Apparently, the Service did not contend that such a relationship existed in

this case.

22 In assessing the validity or constitutionality of a restraint placed upon the

activities of an alien subject to deportation proceedings, factors to be considered

include the nature of the activities, the forum making the determination and the

procedures. Sae 70 Hero. L. Rev_ 715 (1957), cited in the liritkovich npininn.

23 The present provisions regarding bond conditions are not sufficiently spe-

556

_aileron .yeeision IFGGOO

First, it appears that not until recently did the Service attempt

to use in bonds related to deportation proceedings a condition

regarding employment. In my opinion, while this history of non-

use is not determinative of the question of authority, 24 it suggests

the administrative desirability of having a formal basis for the

new practice.

Second, there is the potential problem, acknowledged by the

Service, of undue utilization of such a condition. A regulation

could indicate, at least generally, the circumstances which might

result in imposing an employment condition. Such standards

would provide guidance to Service personnel involved in day-to-

day implementation and would be a safeguard against abuse of

discretion.25 Also, a regulation would provide notice to aliens and

employers. The standards set forth in a regulation might be of use

in affording a basis for decision making in the event of administra-

tive or judicial review.m

Finally, by following the process of proposed rule making, the

Service could obtain the views of interested parties. This would

help to assure proper consideration of the various points of view.

In sum, regarding the basic question of statutory authority, my

view differs from that of the majority of the Board. Still, because

there was no specific regulation in effect, I concur in the result

reached by the Board and do not sustain the employment condi-

tion in this case.

The case is returned to the Board for further proceedings

pursuant to 8 CFR 3.1(hX2).

APPENDIX A

Bond Conditions

The pertinent provisions of the bonds, including the condition

regarding unauthorized employment, are as follows:

cific. The provision regarding bonds and related aspects of deportation proceed-

ings, 8 CFR 242.2(a), is general in its terms. Under 8 CFR 103.6(a), any non-

standard rider to a bond must he approved by a regional commissioner, but, in

my opinion, additional substantive safeguards would be appropriate with respect

to the condition at issue here.

24 United States v. E. I. Du Pont de Nomura & Co., 353 U.S. 586 (1957); see also

FTC v. Dean roods, 383 U.S. 597 (1966).

25 Cf. Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d

715, 718 (C.A. 2, 1966), where the Court stated:

In the absence of standards in the statute itself, proper administration would be

advanced and reviewing courts would be assisted if the Attorney General or his

delegate, without attempting to be exhaustive in an area inherently insuscepti-

ble of such treatment, were to outline certain bases deemed to warrant the

affirmative exercise of discretion and other grounds generally militating against

it... *

26 See footnote 25.

557

itit,erun Lregibani 9F GLoo—ltppenuix.

In consideration of the granting of the application of the above named alien

for release from custody under a warrant of arrest issued by the Attorney

General charging that he is unlawfully in the United States, provided there is

furnished a suitable bond as authorized by Section 242 of the Immigration and

Nationality Act, the obligor hereby furnishes such bond with the following

conditions i.e.: If said alien is released from custody and if said alien does not

accept employment in the United States on or after the effective date of this

bond unless authorized by the Immigration and Nationality Service and if the

above obligor shall cause said alien to be produced or to produce himself to an

immigration officer of the United States upon each and every request of such

officer until deportation proceedings in his case are fmally terminated or until

said alien is actually accepted by such immigration officer for detention or

deportation, then this obligation shall be void; otherwise it shall immediately

become due and payable; Provided, that it is hereby specifically agreed by the

obligor that no order issued by or under the authority of the Attorney General

by virtue of which issuance or execution of an order of deportation is or may

be deferred, or by virtue of which the said alien is or may be permitted to

depart voluntarily from the United States, shall be in any manner construed

to impair or render void this obligation or any part thereof.

APPENDIX B

Section 242(a) of the Immigration and Nationality Act

Section 242(a) of the Act, 8 U.S.C. 1252(a), is as follows:

Pending a determination of 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. (I) 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. Any court of competent

jurisdiction shall have authority to review or revise any determination of the

Attorney General concerning detention, release on bond, or parole pending

final decision of deportability upon a conclusive showing in habeas corpus

proceedings that the Attorney General is not proceeding with such reasonable

dispatch as may be warranted by the particular facts and circumstances in

the case of any alien to determine deportability.

558