Interim Decision #2477 

MATTER OF RECZYNSKI 

In Bond Proceedings 

A-20919696 

Decided by Board March 3, 1976 

(1) While an immigration judge is empowered pursuant to 8 CFR 242.2(b) to redetermine 

the amount of, or a condition of, a bond subsequent to its imposition by a district 

director and before a deportation order becomes administratively final, there is no 

independent basis in the regulations authorizing an immigration judge to determine 

whether there has been a breach of bond. A district director, who is authorized to 

declare a bond breached (8 CFR 103.6(e)), is the one who should do so. 

(2) Where, on the basis of information presented at the hearing before an immigration 

judge in connection with request for bond redetermination under 8 CFR 242.2(b), there 

is reason to believe, as in the instant case, there may have been a breach of a bond 

condition, the procedure to be followed is adjournment of the hearing to allow the 

district director to determine whether or not the bond should be declared breached. If 

declared breadied, the redetermination hearing then becomes moot. 

ON BEHALF OF RESPONDENT: Nathan T. Notkin, Esquire 

11 South LaSalle Street 

Chicago, lilinois 60603 

This is an appeal from a determination of an immigration judge, dated 

September 2E, 1975, denying the respondent's request for a change in 

his custody status. The record will be remanded. 

The respondent is a single male alien who is a native and citizen of 

Poland. On February 5, 1975, an order to show cause and warrant of 

arrest were issued. The order to show cause alleges that the respondent 

entered the United States as a nonimmigrant visitor and has remained 

in the United States for a period longer than authorized. The respondent was released from custody under bond in the amount of $1,500. A 

rider attached to the bond prohibited the respondent from being employed without permission of the Immigration and Naturalization Service. The respondent does not contest the amount of the bond, but only 

the imposition of the non-employment rider. The request for the bond 

redetermination hearing was not formally made until September 26, 

1975. At the Ime of the request, the deportation hearing had not yet 

been held. 

In his memorandum of decision of support of his determination, the 

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immigration judge stated that, on the morning of the hearing, the trial 

attorney orally informed him that the Service had learned that the 

respondent had been employed, in apparent violation of the nonemployment condition of the bond. The immigration judge stated that 

he questioned the respondent and that the respondent admitted that he 

had been employed. The immigration judge concluded that the respondent had breached the condition of the bond and that because of the 

breach he accordingly lacked jurisdiction to determine the issue. There 

is nothing in the record to indicate the district director declsred the 

bond breached. On appeal, the respondent contends that a breach does 

not occur absent such a declaration. 

A condition against unauthorized employment is provided for in 8 

CFR 103.6(a)(2). See Matter of Leon-Perez, 15 I. & N. Dec. 239 (BIA 

1975). See generally Matter of Toscano-Rivas, 14 I. & N. Dec. 523 (BIA 

1972, 1973; A.G. 1974). A bond is breached when there has been a 

"substantial violation of the stipulated conditions." 8 CFR 103.6(e). 

However, this regulation also provides: 

The district director having custody of the Sle containing the immigration bond 

executed on Form 1-352 shalt determine whether the bond shall be declared breached or 

cancelled, and shall notify the obligor on Form 1-323 or Form 1-391 of the decision, and, 

if declared breached of the reasons therefor and of the right to appeal in accordance with 

the provisions of this part. (Emphasis supplied.) 

It is apparently this provision on which the respondent relies in contending that there could have been no breach absent a declaration by the 

district director. 

Under 8 CFR 242.2(b), an immigration judge is empowered to redetermine the amount of, or a condition of, a bond subsequent to its 

imposition by a district director and prior to an order of deportation 

being entered.' However, there is no independent basis in the regulations giving an immigration judge the authority to pass on whether or 

not there has been a breach of the bond. Resolution of such a factual 

issue could precipitate a lengthy bond determination hearing. The district director, who is authorized to declare a bond breached, is the one 

who should do so. 

Once there has been a breach, and a declaration of such by the district 

director, there is little reason for an immigration judge to redetermine 

the bond condition. To hold otherwise would permit an alien under bond 

to violate the bond conditions with the knowledge that if he is discovered, he could then challenge the imposition of the condition. An alien 

As amended effective November 28, 1975, 8 CFR 242.2(b) now provides that when an 

alien has posted the bond and has been released from custody, the immigration judge may 

make a redetermination only if the request is made within seven days of release. After 

that seven-day period, requests for modification of conditions of the bond are made to the 

district director. See 40 Fed. Reg. 50250 (October 29, 1975). 

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under a band condition can adequately protect his rights by making a 

prompt request for a redetermination either shortly after the condition 

is imposed or at such time as he believes conditions may have changed 

sufficiently to warrant a request. 

On the ba sic of the information presented at the hearing, there was 

reason to believe there may have been a breach of the bond condition. 

Under these circumstances, the procedure to be employed is to adjourn 

the hearing to allow the district director to determine whether or not 

the bond should be declared breached. lilt were declared breached, the 

redetermination hearing would then become moot. We shall remand the 

record to the immigration judge for this procedure to be employed. 

ORDER: The record is remanded to the immigration judge for further 

proceedings consistent with this opinion and the entry of a new decision. 

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