Interim Decision #2891 

MATTER OF SIO 

In Bond Proceedings 

A-23110685 

Decided by Board November 4, 1981 

(1) An immigration judge has authority to consider an application for release or amelioration of the conditions of release from custody after an initial determination with respect to custody has been made by a District Director or other specified officer of the 

Immigration and Naturalization Service and at anytime before a deportation order 

becomes administratively final, but if an alien is released from custody, such application 

must be made to an immigration judge within 7 days from the date of release; thereafter, 

the application may only be made to a District Director. 8 C.F.R. 242.2(b). 

(2) Where the respondent did not avail himself of his regulatory right to submit an 

application for change in custody status to an immigration judge before the expiration 

of the 7-day period, jurisdiction over the appliiation rested with the District Director 

and recourse from the District Director's decision lay in an appeal to the Board of 

Immigration Appeals, filed within 5 days after service of written notification of that 

decision. 8.C.F.R. 242.2(a) and (b). 

ON BEHALF OF RESPONDENT: William F. Thompson, III, Esquire 

Blackfield Hawaii Building 

Penthouse Suite 

1221 Kapiolani Boulevard 

Honolulu, Hawaii 96814 

Milhollan, Chairman; Maniatis, Magqire, Morris, and Vacca, Board Members 

On September 18, 1981, the District Director denied the respondent's 

request for amelioration of the conditions for release from custody initially set in his case. The respondent has appealed from that decision. 

The appeal will be dismissed. 

The respondent, a native and citizen of Western Samoa, was released 

from custody on or about August 19, 1981, upbn posting bond in the 

amount of $2,500; the bond carried a condition prohibiting unauthorized 

employment. At deportation proceedings conducted on September 15, 

1981, the respondent was found deportable as an overstayed nonimmigrant on the basis of his concessions at the hearing and was granted 

voluntary departure to Januaiy 14, 1982, with an alternative order of 

deportation to Western Samoa in the event of his failure to depart 

within the time authorized. 

On September 16, 1981, the respondent through counsel wrote to the 

District Director requesting modification of the terms of his custody 

status, specifically, release on his own recognizance and cancellation of 

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Interim Decision #2891 

the "no work rider." In his decision of September 18, 1981, the District 

Director denied the respondent's request in its entirety, stating the 

reasons for his determination. The respondent thereupon requested a 

redetermination hearing before the immigration judge who denied the 

request for lack of jurisdiction in a decision dated September 25, 1981. 

The regulations authorize an immigration judge to consider an application for change in the conditions of an alien's release after an initial 

determination with respect to custody has been made by the District 

Director or other specified Service officer and at anytime before a 

deportation order becomes administratively final. However, if an alien 

is released from custody, such application must be made to the immigration judge within 7 days of the date of release; thereafter, the application may only be made to the District Director. 8 C.F.R. 242.2(b). See 

generally Matter of Vea, 18 I&N Dec. 171 (BIA 1981). 

In the present case, the respondent, who was released from custody 

in mid-August, did not avail himself of his regulatory right to submit an 

application for change of custody status to the immigration judge before 

the expiration of the 7-day period. Accordingly, the immigration judge 

correctly determined that he lacked jurisdiction over the matter which 

was instead vested in the District Director with a right of direct appeal 

to the Board.' As previously noted, the District Director had already 

considered and denied the respondent's application for amelioration of 

the conditions of his release; under the regulations, the respondent's 

recourse from the District Director's decision lay in an appeal to the 

Board. 8 C.F.R. 242.2(a) and (b). 

Pursuant to 8 C.F.R. 242.2(b), an appeal to the Board from an appealable determination by a District Director or other designated Service 

officer must be taken within 5 days of the date written notification of the 

determination is served upon the respondent and the Service. The record 

reflects that the parties were notified of the District Director's decision 

not later than September 21, 1981, the date the respondent submitted 

his request for a redetermination hearing to the immigration judge. The 

respondent's notice of appeal to the Board, submitted on October 6, 

1981, was untimely filed. Upon careful review of the record, we have 

decided not to assume jurisdiction over the case by certification' as provided in 8 C.F.R. 3.1(c). The respondent's appeal will therefore be 

dismissed for lack of jurisdiction and the District Director's denial of the 

respondent's request for change of custody status will be permitted to 

stand. 

ORDER The appeal is dismissed. 

' Direct appeal to the Board from a determination of the District Director or other, 

dosignated offerer is authorized only after a deportation order becomes administratively 

final or where recourse to the immigration judge• is no longer available because of the , 

See generally Matter of Vea, expiration of the 7-day period. 8 C.F.R. 242.2(a) and (b). 

supra. 

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