Interim Decision #2167 

MATTER OF TSOI 

In Bond Proceedings 

A-15162019 

Decided by Board October 4, 1972 

The Board of Immigration Appeals lacks jurisdiction under 8 CFR 242.2(b) to 

entertain an appeal from the District Director's bond determination where an 

alien is being held in Service custody for execution of a final order of 

deportation and a stay of his deportation pending determination of a request 

for asylum is likely to be of but brief duration. [Matter of Au, 13 I. & N. Dec. 

133, and Matter ofKioun, 13 I. & N. Dec. 457, distinguished.) 

ON BEHALF OF RESPONDENT: Jules E. Coven, Esquire 

One East 42d Street 

New York, New York 10017 

Respondent, an alien in Service custody for deportation, appeals 

from a decision of the District Director denying his application for 

release pending determination of his asylum request. The appeal 

will be dismissed. 

From the meagre record before us, it appears that respondent is 

a native and citizen of China who was admitted to the United 

States on March 26, 1968 as a nonimmigrant crewman and 

remained longer than permitted. In ensuing deportation proceedings, he was enlarged on posting a $1,000 delivery bond. He was 

found deportable after a hearing before a special inquiry officer 

and granted voluntary departure until September 30, 1968., On his 

failure to depart, a warrant for his deportation was issued. He 

failed to surrender for deportation as demanded on December 9, 

1968 and the bond was breached. His whereabouts was unknown 

to the Service until September 21, 1972, when he was taken into 

custody under the outstanding warrant of deportation. 

Respondent promptly applied for political asylum. The application was referred to the State Department and the District 

Director stayed deportation pending determination of the asylum 

request. Respondent also applied for release, on bond or otherwise, 

pending that determination. The District Director concluded that 

exaction of bond as a condition of release was precluded by the 

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terms of section 242(c) of the Immigration and Nationality Act, 

because more than six months had elapsed since the deportation 

order became final. Insofar as concerned respondent's possible 

release on his own recognizance, the District Director felt that 

respondent's record did not justify reliance on his making himself 

again available for deportation once released. Concluding that 

respondent's deportation is still imminent, the District Director 

denied the release application. 

Appeals to this Board from Service detention determinations 

are authorized by 8 CFR 3.1(b)(7), "as provided in Part 242 of this 

chapter." Under the terms of 8 CFR 242.2(b), after a deportation 

order becomes administratively final, an alien may appeal direct to 

the Board from a District Director's determination, "except that 

no appeal shall be,allowed when the Service notifies the alien that 

it is ready to execute the order of deportation and takes him into 

custody for that purpose." In Matter of Guerra, 13 I. & N. Dec. 40 

(BIA 1968), we regarded comparable language in a prior version of 

the same regulation as depriving us of jurisdiction under such 

circumstances. 

In Matter of Au, 13 I. & N. Dec. 133 (BIA 1968) and Matter of 

Moult, 13 I. & N. Dec. 457 (BIA. 1969, 1970), we concluded that the 

exception carved out of the regulation did not apply where the 

Service, by reason of a stay of deportation automatically granted 

by statute during the pendency of review litigation, was not ready 

to execute the final deportation order. In each of those cases, the 

alien had filed a petition for review under section 106(a) of the Act, 

challenging this Board's adjudication in the deportation proceedings on the merits. Under section 106(a)(3) of the Act, deportation 

was automatically ,stayed pending court determination of the 

petition. We concluded that because of the long delay attendant 

upon judicial litigation of this sort, deportation could not be 

considered imminent. 

The case before us is clearly distinguishable, No proceedings are 

pending for judicial review of the deportation order on the merits 

and there is no statutory stay of deportation which is likely to 

remain in effect for a protracted period of time. The District 

Director's stay, geared to the asylum application, is likely to be of 

but brief duration. The District Director's memorandum dated 

September 25, 1972 informs us that past experience in cases of this 

type indicates that a reply from the Department of State can be 

expected within ten ,days. It thus appears that, if asylum is not 

granted, it is likely that the District Director will shortly be in a 

position to deport the respondent. Under these circumstances, we 

conclude, as we did in Matter of duerra,supra, that the regulations 

do not contemplate a right of appeal to this Board. 

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If, contrary to the District Director's expectation, there should 

be a protracted delay before determination of respondent's asylum 

application, the rationale of Matter of Au and Matter of Kwun, 

supra, would apply. In that event, if the District Director should 

still refuse to enlarge respondent, the latter would be in a better 

position to invoke our appellate jurisdiction. 

Our disposition of the case on this narrow ground makes it 

unnecessary for us to consider the question, raised by the District 

Director, whether expiration of the six-month period precludes 

exaction of a delivery bond as a condition of release. Whether the 

six-month period should be considered as tolled where, as here, the 

alien has prevented deportation by absconding, is a question we 

therefore need not now confront. 

ORDER: The appeal is dismissed for lack of jurisdiction. 

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