Interim Decision #2890 

MATTER OF VEA 

In Bond Proceedings 

A-21314945 

Decided by Board November 4, 1981 

(1) After an initial custody determination has been made by a District Director or other 

specified officer of the Immigration and Naturalization Service authorized to issue a 

warrant of arrest, an alien may apply to the foregoing officials for release or amelioration 

of the conditions of release. 8 C.F.R. 242.2(a). 

(2) Once service of a warrant of arrest or determination of any application pertaining 

thereto has been made by a District Director or other specified Service officer, the alien 

may apply to an immigration judge for change In custody status at any tune 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 can only be made to a District Director. 8 C.F.R. 

242.2(a) and (b). 

(3) Direct appeal to the Board of Immigration Appeals from a custody determination of a 

District Director or other-designated Service officer is authorized only after a deportation 

order becOmes administratively final or where recourse to an immigration judge is no 

longer available because of the expiration of the 7-day period. 8 C.F. R. 242.2(a) and (b). 

(4) Where the respondent was still in detention at the time he -applied for a change in 

custody status anti no final order of deportation had yet been entered in his case, his 

application was properly considered by an immigration lodge; his recourse thereafter 

lay in an appeal to the Board, filed within 5 days of the date written notification of the 

immigration judge's determination is served upon•the parties, and not in a request for 

amelioration to a District Director. 8 C.F.R. 242.2(13). 

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

LEZI Kapiolani Boulevard 

Penthouse Suite 

Honolulu. Hawaii 96814 

By: Milhollan, Chairman; Maniatis, Maguire, Morris. and Vacca, Board Members 

In a decision dated August 26, 1981, an immigrationjudge reduced 

from $2,500 to $2,000 the amount of bond initially set by the District 

Director but left in effect a condition of that bond which bars the respondent from engaging in unauthorized employment.' On October 6, 1981, 

1The immigration judge's decision was properly entered on Form I-342 and served on 

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Interim Decision #2890 

the respondent, who was released from Service custody on August 27, 

1981, upon posting bond, filed a notice of appeal to the Board, seeking 

further amelioration of the conditions of his custody status through 

release on his own recognizance and cancellation of the "no work" rider. 

The respondent is a 27-year-old native and citizen of Tonga who was 

admitted to the United States in November 1980 as a nonimmigrant 

visitor for pleasure. Ile admittedly remained longer than authorized and 

at a deportation hearing conducted on September 16, 1981, was found 

deportable as an overstayed nonimmigrant on the basis of his concessions. 

The immigration judge granted the respondent voluntary departure to 

January 16, 1982, with an alternative order of deportation to Tonga in 

the event he fails to voluntarily depart by that date. The respondent 

waived his right to an appeal from that decision. 

On September 16, 1981, the day the immigration judge rendered his 

decision on deportability, the respondent through counsel directed a 

letter to the District Director requesting amelioration of the conditions 

of the appearance bond outstanding against him. Two days later, the 

District Director, noting that the iininigration judge had already acted 

on the respondent's bond redetermination request on August 26, 1981, 

responded that any appeal from the immigration judge's determination 

must be filed with the Board pursuant to 8 C.F.R. 242.2(b). The respondent thereupon sought a redetermination hearing before the immigra, 

tion judge. In a decision dated September 25, 1981, the immigration 

judge concluded that he lacked jurisdiction to consider the respondent's 

request for a change in custody status, basing his conclusion on the 

following provision within 8 C.F.R. 242.2(b): 

. if the respondent has been released from custody, such application [for amelioration 

of the conditions under which he may be released] must be made [to an immigration 

judge) within seven days after the date of such release. Thereafter, application by a 

released respondent for modification of the terms of release may be made only to the 

District Director. 

As more than 7 days had elapsed since the respondent's release from 

custody, the immigration judge determined that any request for modification of the terms of release must be made to the District Director with 

direct appeal to the Board. We conclude that that immigration judge, 

like the District Director, lacked authority to consider the respondent's 

request for change in custody status made after his deportation hearing 

but we do not adopt the rationale relied upon by the immigration judge. 

In accordance with the procedures set forth in 8 C.F.R. 242.2, after 

an initial determination with respect to custody has been made by the 

the respondent and the Service as required by 8 C.F.R. 242.2(b), the regulation governing 

the apprehension, custody and detention of aliens. It does not appear, however, that his 

determination was accompanied by a memorandum setting forth the reasons for the 

decision as required by the foregoing regulation. 

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Interim Decision #2890 

District Director or other Service officer authorized to issue a warrant 

of arrest, an alien may apply to the District Director or such other 

designated officer for release or amelioration of the conditions of his 

release. 8 C.F.R. 242.2(a). Once service of a warrant of arrest or determination of any application pertaining thereto has been made by the 

District Director or specified Service officer, the alien may either apply 

to an immigration judge for releake or modification of the terms of his 

custody status or may appeal directly to the Board, depending upon the 

circumstances of his case. 8 C.F.R. 242.2(a) and (b). 

Application to an immigration judge is authorized after an initial determination has been made and at anytime before a deportation order 

becomes administratively final. If, however, an alien is released from 

custody, application for change in custody status must be made to the 

immigration judge within 7 days from the date of release; thereafter, 

such application can only be entertained by the District Director. 8 

C.F.R. 242.2(b). Direct appeal to the Board from a determination of the 

District Director or other designated officer is authorized only after a 

deportation order becomes administratively final or where recourse to 

the immigration judge is no longer available because of the expiration of 

the 7-day period.28 C.F.R. 242.2(a) and (b). 

The "7-day rule," then, is jurisdictional, describing a circumstance 

under which the immigration judge is divested of power to adjudicate an 

application for change in custody status. However, as the respondent in 

the present case was still in detention on August 26, 1981, the date he 

applied for a modification of the terms of his release, and as no final 

administrative order of deportation had yet been entered in his case, his 

'application was properly considered by the immigration judge who, as 

noted earlier, did reduce the amount of bond initially set. Under the 

regulations, the respondent's recourse thereafter lay in an appeal to the 

Board from the immigration judge's determination and not, as the immigration judge indicated, in a request for amelioration to the District 

Director with a right of appeal to the Board from that official's 

determination. 

The respondent's appeal to the Board, filed on October 6, 1981, is 

jurisdictionally defective for lack of timeliness. Subsection (b) of 8 C.F.R. 

242.2 requires that an appeal to the Board from a custody determination 

by an immigration judge be filed within 5 days of the date written 

notification of that determination is served upon the respondent and the 

Service. The parties were duly notified of the immigration judge's decision on August 26, 1981.3We have decided, however, to assume jurisdic2 No appeal, however, 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. See 

generally Matter of Tsoi, 14 I&N Dee. 205 (BIA 1972). 

3 Our authority to review extends to the immigration judge's decision of August 26, 

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Interim Decision #2890 

tion over the case by certification as provided in 8 C.F.R. 3.1(c). Turning to the merits of the case, the relief sought by the respondent will be 

granted. 

The respondent, who allegedly began working as a fisherman shortly 

after his arrival in this country, is the beneficiary of an approved visa 

petition, according him -sixth-preference status as a fisherman, with a 

priority date of March 18, 1977. A visa number is currently available to 

the respondent and counsel advises that the respondent's application for 

an immigrant visa is presently being processed at the United States 

Embassy in Suva. The respondent has a wife and two children in Tonga. 

As a general rule, an alien should not be detained or required to post 

bond in connection with deportation proceedings unless there is a finding that he is a threat to national security or a poor bail risk. See 

generally Matter of Patel, 15 I&N Dec. 6 (BIA 1976). The Service does 

not allege that the respondent poses a threat to the security of this 

country and the record does not support a conclusion that bond is required 

to prevent the respondent from absconding. 

The respondent is now in the process of applying for an immigrant 

visa at a United States Embassy abroad. There is no suggestion in the 

record that he is inadmissible under any of the qualitative grounds for 

exclusion enumerated in section 212(a) of the Immigration and Nationality Act, 8 U:S.C. 1182(a), or is otherwise not entitled to the visa. We 

consider it highly unlikely that the respondent would jeopardize his 

chances of gaining readmission to the United States as a permanent 

resident by failing to depart under the grant of voluntary departure 

accorded him, thereby rendering himself excludable under section 

212(0(1'7) of the Act as an alien who has been deported. We conclude 

that the imposition of bond is not warranted under the circumstances of 

this case.' 

We likewise conclude that the imposition of a nonemployment rider is 

inappropriate in this case. In Matter of Toscano-Rivas, 14 I&N Dec. 523 

BIA 1972 and 1973; A.G. 1974), the Attorney General, while finding 

that the Service had the authority in a proper case to impose a bond 

condition prohibiting unauthorized employment, expressed concern that 

there be appropriate substantive safeguards with respect to the imposition of such _condition. Promulgation of 8 C.F.R. 102.6(a)(2), which, 

inter olio, sets forth a number of factors to be considered in determining, whether a nonemployment rider ought to be imposed, followed in 

mil, which addresses the merits of the respondent's application for change in custody 

status and not, as counsel suggests in the notice of appeal, to the immigration judge's 

September 25, 1981, decision disclaiming•his own jurisdiction over the matter. 8 C.F.R. 

242.20). 

4 We do not believe the only relevant adverse matter reflected in the record file, the 

respondent's failure to depart under a pre-hearing grant of voluntary departure, provides 

a sufficient basis for imposing bond considering the record as a whole. 

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Interim Decision #2890 

response to the Attorney General's opinion_ A principal concern, manifest in the regulation, is the impact of the alien's employment upon the 

American labor market. See 8 C.F.R. 103.6(a)(2)(i). See generally Matter of Leon-Perez, 15 I&N Dec. 239 (BIA 1975). 

That concern appears unfounded in the respondent's case. In issuing 

the respondent a labor certification, a precondition to the filing of his 

sixth-preference visa petition (see 8 C.F.R. 204.1(c)(1)), the Secretary 

of Labor specifically determined that his employment is not detriinental 

to the United States labor market. We are satisfied that the imposition 

of a nonemployment rider is not otherwise justified on the facts of this 

case. The bond condition against unauthorized employment imposed by 

the District Director and left in effect by the immigration judge will 

accordingly be cancelled. 

ORDER The immigration judge's custody determination is reversed. 

FURTHER ORDER The respondent's request for release on 

his own recognizance is granted. 

FURTHER ORDER: The bond condition against unauthorized 

.employment is cancelled.