Interim Decision #2330 

MATTER OF PEERLESS INSURANCE COMPANY 

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In Bond Cancellation Proceedings 

A-20580373; A-20580383; A-20580903; 

A-20580905; A-20580907; & A-20580908 

Decided by Regioytal dommissioner October 24, 1974 

. , Where a proper and timely demand was made upon the obligor to produce the aliens for 

deportation, the burden of proof was on the obligor to establish by probative evidence 

that the aliens in fact left the United States prior to the date set for their surrender. 

ON BEHALF OF OBLIGOR: , Self Represented 

These matters are before the regional commissioner on appeal from 

the decisions of the district dirketur declaring the immigration bonds to 

have been breached. 

The aliens are all natives and citizens of Mexico who entered the 

United States illegally without inspection on -various dates at various 

places across the Mexican-United States border and were all apprehended employed at a mushroom farm in or near Coeymans, New 

York on February 13, 1974. Each was released from physical custody 

upon the posting of the -delivery bonds of $1,000 each by Herbert L. 

Goldstein; Esq., Attorney- iA Fact for the obligor. The bonds stipulate-in 

pertinent part: 

.... if said alien is released &mil 'custody and if the above obligor shall cause the said 

alien to be produced toproduce hiniself 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 the said Wields actually accepted by such immigration officer 

for detention or deportation, then this obligation shall be void; otherwise it shall 

inunediately become, due and payable . . 

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In a hearing before amimmigration judge on March 7, 1974 each alien 

was found deportable and was granted the privilege of voluntary departure on or before April 7, 1974 with an alternate order of deportation to 

Mexico in the event he did not depart voluntarily. The period for 

voluntary departure was -extended to April 15, 1974 and thereafter on 

April 22, 1974 in the absence of any evidence that the aliens had 

departed, transportation arrangements were made by the Service and 

the obligor was served notices to surrender each alien for deportation on 

April 26, 1974. Similar notices were mailed to the individual aliens but 

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each of these notices was returned by the postal authorities marked 

"unclaimed-moved-no order." 

The aliens failed to surrender themselves and the obligor failed to 

deliver the aliens to the Service on April 26, 1974 in accordance with the 

demand made under the terms of the immigration bonds. The notices 

dated April 29, 1974 declaring the bonds breached on April 26, 1974 

followed. 

The obligor bases each appeal on the same grounds. He alleges that 

each alien left his employer's premises before April 7, 1974 the original 

voluntary departure date set by the immigration judge. He argues that 

since no proof has been adduced that the aliens did not return to Mexico 

within the period granted •for voluntary departure that the decisions 

declaring the bonds breached on April 26, 1974 were inconsistent with 

the immigration judge's orders and should not have been served. The 

obligor cites no legal or administrative precedent for his position. 

The basic facts are not in dispute. A proper and timely demand was 

made upon the obligor to produce the aliens. They were not produced 

pursuant to the demand. The only question is the one raised by the 

obligor on appeal by claiming that the Government's failure to prove 

that the aliens did not depart from the 'United States prior to the date 

set for their voluntary departure precludes a proper declaration that the 

bonds were breached. While this is a defense which has been ruled 

invalid previously in unreported decisions, we are aware of the relative 

paucity of pdblished precedent decisions.involving analogous situations. 

We will rely to some extent in the instant matter on the Matter of Don 

Donaldson's Key Bail Service, 13 I. & N. Dec. 563. That decision held 

that it was not necessary to show that the,alien had departed from the 

United States prior to the expiration of voluntary departure authority 

or prior to the date the demand of service of demand for surrender. It 

held that upon establishment that the alien had departed from the 

United States prior to the date demanded for, his surrender, the bond 

was not breached. There is, however, a significant difference between 

the circumstances in Matter of Donaldson's Key Bail Service and the 

matters at hand. In Donaldson's the obligor produced persuasive 

documentary evidence of the alien's departure from the United States. 

In the matter before us the obligor adopts the position that the Government must p:rove that the aliens did not depart by a specific date. We 

hold that the burden of proof to establish that the alien actually left the 

United States before the date set for his surrender rests with the 

obligor when he fails to produce the alien pursuant to a proper and 

timely demand made upon him. To place the Service in a position of 

having to prove that he did not so depart would constitute an unreasonable and unnecessary impediment to the administration of justice and 

the immigration laws. 

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The record before us reflects no attempt by the obligor to furnish 

probative evidence that the aliens did, in fact, depart from the United 

States prior to April 26, 1974 even though a period of five months has 

elapsed since the demand was made for their surrender. 

In judicious consideration of all the evidence before us including 

representations made on appeal we find that there has been a substan 

tial violation of the stipulated conditions of the bonds causing the bonds 

to be breached and collateral forfeited. (8 CPR 103.6(e)). Accordingly 

the appeals will be dismissed. 

It is ordered that the appeals be and are hereby dismissed. 

135 

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