Interim Decision #2256

MATTER

OF TOSCANO-RIVAS

et al.

In Bond Proceedings
A49925806
Decided by Board September 7, 1972 and April 6, 1973
Decided by Attorney General January 9, 1974
(1) Sections 103 and 242 of the Immigration and Nationality Act authorize the
inclusion in an appearance and delivery bond in connection with a deportation
proceeding of a condition prohibiting unauthorized employment.
(2) Under 8 CFR 242.2(b), a special inquiry officer has authority to review and
modify the conditions of a bond imposed by a district director in a deportation
proceeding; under 8 CFR 3.1(bX7), the Board of Immigration Appeals has
authority to review, on appeal, a special inquiry officer's consideration of a
bond determination made by a district director.
APPLICATION:

Elimination of condition of bond prohibiting employment unless
authorized by Immigration and Naturalization Service.

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENTS:

Charles Gordon
General Counsel
Irving A. Appleman
Appellate Trial Attorney
(Brief filed)

Emanuel Braude, Esquire
215 W. 5th Street, Suite 910
Los Angeles, Calif. 90013
David Marcus, Esquire
215 W. 5th Street

Los Angeles, Calif. 90013
Amicus Curiae:
Jack Wasserman, Esquire
Esther M. Kaufman, Esquire

Association of Immigration and
Nationality Lawyers
1823 "L" Street, N.W., Suite 102
Washington, D.C. 20036

(Brief filed)
BEFORE THE BOARD

(September 7, 1972)
The District Director appeals from an order of the special
inquiry officer, dated August 4, 19'72, which was rendered in bond

redetermination proceedings incident to deportation proceedings.

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Interim Decision #2256
In his order the special inquiry officer eliminated a bond condition
imposed upon the respondents, according to which their acceptance of unauthorized employment would constitute a breach of
their bonds. The appeal will be dismissed.
The cases relate to ten aliens, all natives and citizens of Mexico,
all of whom were found to be deportable by the special inquiry
officer on August 1, 1972. Each of the respondents has conceded

deportability. Their appeals from the special inquiry officer's
orders of August 1, 1972 are being dismissed today in separate
orders.

We have been informed that respondent Perez Solorio has
returned to Mexico, evidently taking advantage of the privilege of
voluntary departure extended to her. Therefore, the District Director's appeal as to her has become moot.
Pending hearing in the deportation proceedings, the respondents were released on a $1,500 bond covering the entire group. The
bond contained a condition inserted by the District Director to the
effect that the respondents agree not to accept any employment
unless authorized by the Service. The record reflects the fact that
all ten respondents had been employed by the same company,
California Originals of Torrance, California, a ceramics manufacturer. The bond condition against employment was obviously
designed to prevent their further employment by California Originals.
When the special inquiry officer's orders of August 1, 1972 were
entered, the first bond was vacated and new bonds were substituted in its place. The District Director set a $1,000 bond for each
alien, and these new bonds contained the same condition with
regard to employment as in the previous blanket bond. In bond
determination proceedings the special inquiry officer reduced the
amount of the bonds to $500 per alien. At that time there was no
discussion of the condition against accepting unauthorized employment. The District Director thereupon prepared new bonds
which again contained the condition against employment. At the
request of counsel, the special inquiry officer reopened the bond
proceedings and, over objection of the District Director, deleted
the condition. It is that action which the District Director asks us
to review on this appeal.
Counsel claims that releasing the respondents on bond but
making their further engagement in unauthorized employment
subject to the penalty of having their bond forfeited works to
defeat their right to appeal. In view of the result we reach, we
need not respond to this contention of counsel.
We have been advised that bond has been posted and the
respondents have been released, accepting the condition imposed
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Interim Decision #2256
by the District Director under protest. We understand the Service
has agreed that the respondents' right to challenge the contested
bond condition shall not be prejudiced by their release. We shall
decide this appeal on that basis.
This appeal raises two main issues. The first question is
whether, in the present case, the District Director's use of a
condition against unauthorized employment in a bond required of
aliens in deportation proceedings is reasonable and proper. The
second issue is whether the special inquiry officer, and thus
indirectly this Board, has the power to review the District Diree-

tor's action in these cases. We shall deal with the jurisdictional
question first.
The District Director takes the position that the special inquiry
officer had no authority to delete the condition relating to unauthorized employment because the District Director has the exclusive right to impose conditions of bonds other than the actual
amount of the bond. The District Director relies upon a comparison of the language of 8 CFR 242.2(a), which recites his powers,
and 8 CFR 242.2(b), which deals with the powers of the special
inquiry officer to redetermine bond matters_ The relevant portion

of 8 CFR 242.2(a) reads as follows:
When a warrant of arrest is served under this part, the respondent ... shall
... be informed whether he is to be continued in custody, or, if release from
custody has been authorized, of the amount and conditions of the bond or the
conditions under which he may be released. (Emphasis supplied.)

The relevant portion of 8 CFR 242.2(b), on the other hand, at first
glance seems to limit the special inquiry officer to "determine
whether a respondent shall be released under bond, and the
amount thereof." (Emphasis supplied.) The District Director would
have us interpret the absence of any reference to conditions of
bond in 8 CFR 242.2(b) to mean that the special inquiry officer is
without any power to review a determination as to non-monetary
conditions of a bond made by the District Director.
We are unable to accept what we believe to be an overly
mechanical interpretation of the regulations on the part of the
District Director. As a general rule, all related regulations ought
to be read together to form an integrated whole. With regard to
the present appeal, this means that we should consider certain
additional language contained in 8 CFR 242.2(a) which bears upon
the issue at hand, but which was not mentioned by the District
Director. We refer to the portion that states the District Director
shall advise a respondent "whether he may apply to a special
inquiry officer pursuant to paragraph (b) of this section for release
or modification of the conditions of release ..." (Emphasis supplied.) When this additional language is considered it becomes
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Interim Decision #2256
clear that the failure to mention the power to modify nonmonetary bond conditions in the enumeration of the special
inquiry officer's powers in 8 CFR 242.2(b) was not meant to deprive
the special inquiry officer of that power. We do not deem it
significant that 8 CFR 242.2(b) is given the heading "Authority of
special inquiry officers; appeals." The authority of the District
Director is spelled out in 8 CFR 242.2(a), but that section is merely
entitled "Warrant of arrest."
Prior to 1954, this Board did not have authority to review bond
determinations of the District Director. In that year, the Attorney
General by regulation conferred appellate jurisdiction on the
Board to review Service determinations relating to an alien's
bond, parole or detention in deportation proceedings. The grant of
authority now appears in 8 CFR 3.1(bX7). The special inquiry
officer had no authority, prior to 1969, to review bond determinations made by the District Director. In that year, however, the
regulation was amended to give the special inquiry officer such
authority. We discussed at length, in Matter of Kwun, Interim
Decision No. 2021 (BIA 1969, 1970), the fact that the purpose of the
amendment to the regulations, and the simultaneous expansion of

the jurisdiction of the special inquiry officers, was to eliminate the
need for direct appeals to the Board from bond, parole or detention
determinations of the District Director. We therefore agree with
the special inquiry officer's ruling that he does in fact have the
power to review and modify the conditions of a bond imposed by
the District Director. This Board, by virtue of 8 CFR 3.1(bX7), then,
has the power to review the special inquiry officer's consideration
of the initial determination made by the District Director in the
present case. We believe this result comports with the basic
principles underlying the 1954 and 1969 changes in the regulations.

The next question is whether the District Director's use of the
condition against unauthorized employment, pending a fmal determination as to deportability, is reasonable and proper. We do not
agree with the Service that the condition here imposed by the
District Director is a proper one. We are in accord with the
decision of the special inquiry officer in eliminating that condition

and we shall dismiss the Service appeal from his order.
The statutory authority regarding requiring a- bond pending
final determination as to deportability is contained in section
242(a) of the Immigration and Nationality Act. The relevant
portion of that section reads as follows:
Pending a determination of doportability in the ease of any alien as provided
in subsection (b) of this section, such alien may, upon warrant of the Attorney

General, be arrested and taken into custody. Any such alien taken into

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Interim Decision #2256
custody may, in the discretion of the Attorney General and pending such final
determination of deportability, (1) be continued in custody; or (2) be released
upon bond in the amount of not less than $500 with security approved by the
Attorney General, containing such conditions as the Attorney General may
prescribe; ...

The District Director takes the position that the special condition placed in the bonds of the respondents declaring that unauthorized employment would constitute a breach of the bonds is
permissible under the broad power given the Attorney General in
section 242(a) of the Act. The District Director notes that the
procedure for advance approval by the Regional Commissioner of
riders containing special conditions not found on the standard
bond form set forth in 8 CFR 103.6(aX2) was followed. The District
Director apparently rests upon 8 CFR 242.2(a) as authority that
the Attorney General's broad power has been delegated to him.
The special inquiry officer, in cancelling the bond condition
prohibiting unauthorized employment, rejected the position of the
District Director. In essence, the special inquiry officer held that
no one has the power to impose such a condition in a bond in a
deportation proceeding. The position of the special inquiry officer
is set forth on page 17 of the transcript. It reads as follows:
I have always viewed the bond where an alien is under deportation
proceedings as a bond which would assure his appearance and delivery. The
condition* that the Diotriet Director can impose on that ernulri

he such

conditions which will influence his appearance. The purpose of a bond is to
assure his appearance and the necessity of the bond also is if he is likely to
abscond or if he is a threat to the public safety or security of the United
States.

The statute prescribes no limitation on the nature of the
conditions which may be imposed. In view of the broad grant of
power, it seems to us that any reasonable condition formulated- by
the District Director as the delegate of the Attorney General must
be sustained. In determining what is reasonable, we must of
course take into account the gloss which this provision has
acquired in the courts through the years.
While it is a bond cdndition which in form confronts us, in reality
the issue directly involves detention. If the respondents refuse to
agree to the condition laid down by the District Director, i.e., that
they shall not accept employment unauthorized by him, they will
simply be continued in custody until the adjudication of their
deportability becomes foal and they can be deported.
The detention, bond, parole, and supervision provision of section
242 of the Act were designed primarily to make sure that the alien
who is the subject of the deportation proceedings will be made
available for hearing when required and for deportation if ultimately found to be deportable. If the alien's recent activities are
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Interim Decision #2256
such as to constitute a menace to the internal security of the
United States, he may properly be detained, Carlson v. Landon,
342 U.S. 524 (1952) (active membership in Communist Party during
period of tension). Similarly, if by reason of criminal background or
other adverse factors he is a bad bail risk, he may be held to high
bail or detained without bail, Hernandez Avila v. Boyd, 294 F.2d
373 (C.A. 9, 1961). In the absence of any security risk or bail risk
elements or any meaningful criminal record, an alien should
ordinarily not be detained, Rubinstein v. Brownell, 206 F.2d 449
(D.C. 1953), affirmed by an equally divided court, Brownell v.
Rubinstein, 346 U.S. 929 (1954).
We agree that $500 bond is a reasonable requirement in these
cases. There is nothing in the record before us, however, to
indicate that any of the respondents is a security risk or has a
meaningful criminal background. The Service candidly concedes
that the use of the "no unauthorized employment" condition in an
appearance and delivery bond to secure the release of an alien in
deportation proceedings is novel.' It attempts to justify the imposition of this condition on the peculiar factual situation presented in
the eases of these respondents by the following chain of facts and
reasons:
The respondents, as aliens concededly deportable, have no legal
right to remain. It is unlawful for them to work here. Worse, their
employment by California Originals at the minimum wage permissible by law deprives American workers of employment, since the
latter cannot work for such substandard wages. This in turn
contributes to unemployment. The situation is aggravated by the
fact that California Originals has a high proportion of illegal aliens
among its employees, is uncooperative, and is under investigation
for harboring aliens. The Service assures us that the District
Director does not intend to use the "no unauthorized employment"
condition indiscriminately in the cases of all aliens here illegally,
but only on a carefully selective basis.
Underlying this proposal is the thesis that detention is warranted (over and beyond its obvious use to make the alien
available for hearing and for deportation) not only to meet the
needs of internal security but also to meet the possible needs of

economic security. In other words, if aliens here illegally are
holding down jobs that Americans could use, the aliens may be
placed in detention so that their jobs will become available for the
1 Such a condition is usually found in a maintenance of status and departure
bond, which is sometimes exacted of aliens seeking to enter the United States as
nonimmigrants for a temporary period and as to whose bona fides there may be
some lingering doubt.

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Interim Decision #2256
Americans. Even if this were considered a desirable way of
attacking the problem, we believe it is an impermissible use of the
detention power.
The respondents entered the United States in a status which did
not permit them to work here, so that it was and is unlawful for
them to accept gainful employment. See London v. INS, 433 F.2d
635 (C.A. 2, 1970). But so far as we can ascertain, deportation is the
only sanction imposed by the statute for this infraction. We can
find no statutory Provision which makes it a crime for an alien
here illegally to work for pay or which imposes a civil penalty

other than deportation. The impact upon our economy of illegal
immigrant employment has been the subject of intensive Congressional scrutiny in recent months and numerous bills specifically
tailored to meet the problem have been introduced. One of them,
H.R. 14831, 92nd Cong., 2d Sess., would amend section 274 of the
Act to impose civil and criminal penalties, for successive violations,
upon an employer who knowingly employs an alien not lawfully
admitted for permanent residence unless such employment is
authorized by the Attorney General
Whether or not the acceptance of unauthorized employment by

an alien here illegally should be a criminal offense is a matter of
legislative judgment. If Congress were to make such conduct a
criminal offense and such an alien were to be charged therewith,
he would have to be found guilty after a due process trial and
sentenced to imprisonment by a judge before he could be confined.
We do not feel that the detention power conferred by section 242(a)
of the Act should be used to achieve the same result while
Congress is pondering what legislation to enact, merely because
the District Director is impatient at the delay. 2
The Service is not reniediless. If it feels the respondents are
using dilatory tactics in order to delay deportation so that they
may continue to work here illegally as long as possible, this design
can be thwarted by expediting procedures all along the line.
Priority handling and prompt deportation, rather than preventive
detention, is more in keeping with our traditions as a method of
coping with this pi:oblem. We have expedited consideration of
respondents' cases and our careful review of the records satisfies

us that their appeals lack merit. We are therefore dismissing their
2 Excerpt from District Director's memorandum dated August 7, 1972 to
Service Representative, Board of Immigration Appeals:
"The ultimate question to be answered is whether the government has the
authority to imaginatively utilize the weapons at hand to counter an immediate and present economic problem or sit idly by permitting the problem to
destroy us while we await the creation of new weapons in the form of
legislation and/or regulations."

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Interim Decision #2256
appeals in separate orders today. Insofar as concerns the Service
appeal in the bond proceedings before us, that, too, will be
dismissed.
ORDER: The appeal is dismissed.
Warren R. Torrington, Member, Dissenting:
I must dissent; for the order of the Board seeks to impose an
unreasonable limitation on the authority of the Attorney General
to detain and release aliens pending a determination of their

deportability.

I agree with the holding that, under the provisions of 8 CFR
242.2(b), a special inquiry officer has the authority to modify the
conditions of a bond imposed by the District Director. I disagree

with the holding that a condition that the deportable alien "not
accept employment" is unreasonable, and with the order dismissing the Service appeal.
From the record the full text of the conditions of this bond with
which we are here concerned appears to be as follows:
In consideration of the granting of the application of the above named alien
for release from custody under a warrant of arrest issued by the Attorney

General charging that he is unlawfully in the United States, provided there is
furnished a suitable bond as authorized by Section 242 of the Immigration and
Nationality Act, the obligor hereby furnishes such bond with the following
conditions i o. Tf said alien is released from custody and if said alien does not
accept employment in the United States on or after the effective date of this
bond unless authorized by the Immigration and Nationality Service and if the
above obligor shall cause said alien to be produced or to produce himself 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
said alien is actually accepted by such immigration officer for detention or
deportation, then this obligation shall be void; otherwise it shall immediately
become due and payable; Provided, that it is hereby specifically agreed by the
obligor that no order issued by or under the authority of the Attorney General
by virtue of which issuance or execution of an order of deportation is or may
be deferred, or by virtue of which the said alien is or may be permitted to
depart voluntarily from the United States, shall be in any manner construed
to impair or render void this obligation or any part thereof.
-

The majority opinion recognizes that section 242(a) of the Immigration and Nationality Act contains "no limitation on the nature
of the conditions which may be imposed" in a bond. Indeed, the
language of the statute is as clear as can be. The majority does not
find the condition here sought to be imposed by the Service to be
unconstitutional, illegal, or immoral. It emphasizes that the "respondents entered the United States in a status which did not
permit them to work here, so that it was and is unlawful for them
to accept gainful employment." It then expresses the strange view
that a bond condition against unlawful employment i$ "unreasonable." I disagree.
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Interim Decision #2256
The Immigration and Nationality Act does not, as the majority
would have us believe, direct the Attorney General to stand idly by

while aliens who, being represented by experienced immigration
counsel, have admitted the truth of the allegations in the orders to
show cause, and have conceded their deportability, flagrantly
violate the immigration laws of the United States. On the contrary, Congress has, in no uncertain terms, given the Attorney
General the unrestricted power to release, in his discretion, an
alien arrested under section 242(a) of the Immigration and Nationality Act, pending a determination of the alien's deportability, "under bond in the amount of not less than $500 with security approved
by the Attorney General containing such conditions as the Attorney
General may prescribe." [Emphasis supplied]. Incidentally, under
section 242(a) of the Immigration and Nationality Act, the Attorney
General has the option to continue an arrested alien in custody

pending a determination of his deportability, and not to release him
at all. It goes without saying that there must never be an abuse of
the Attorney General's discretion. The statute provides for review
or revision of a determination of the Attorney General by a court of
competent jurisdiction only "upon a conclusive showing in habeas
corpus proceedings that the Attorney General is not proceeding

with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine
deportability."
The majority is careful not to state that the imposition of the
condition against the taking of employment constituted an abuse
of the Attorney General's discretion. Only a clear abuse of discretion would justify the setting aside of an otherwise legal condition.
The condition here sought to be imposed was not only not unreasonable, but, in my opinion, was eminently reasonable and
proper. I reject the strange notion advanced in the majority
opinion that the chief law enforcement officer of the United States,
acting through the Immigration and Naturalization Service, has
no authority in any case to attempt to prevent admittedly deporta-

ble aliens from thumbing their noses at the immigration laws of
this country unless violations of such laws call for criminal
sanctions.

The cases cited on page 8 of the majority opinion have no
relation to the issue that is before us. That issue is simply whether
the condition here sought to be imposed is reasonable or not.
The case of Carlson v. Landon, 342 U.S. 524 .(1952) dealt only
with the question whether the Attorney General could continue
active alien Communists in custody, without bail, pending determination of their deportability, under section 23 of, the Internal
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Interim Decision #2256
Security Act of 1950 (8 U.S.C. § 156). Similarly, the decision of the
United States Court of Appeals for the Ninth Circuit in Hernandez-Avila v. Boyd, 294 F2d 373 (CA. 9, 1961) has no conceivable
relation to the question here involved. There the Court held that a
determination of the Attorney General and his authorized representative with respect to bail would be overturned only if there
was an abuse of discretion. The Court did nut find an abuse of
discretion.
The majority opinion cites a decision of the United States Court
of Appeals for the District of Columbia Circuit in the interesting
case of Rubinstein v. Brownell, 206 F.2d 449 (D.C. 1953), affirmed
sub nom. Brownell v. Rubinstein, 346 U.S. 929 (1954), as supporting
the following proposition: "In the absence of any security risk or
bail risk elements, or any meaningful criminal record, an alien

should ordinarily not be detained." That decision not only does not
support the foregoing proposition at all, but deals with an entirely
different situation. Rubinstein had indeed been released on bond.
He then brought a suit against the Attorney General for declaratory relief with regard to an administratively final deportation
order and for an injunction restraining the Attorney General from
arresting Rubinstein. He (Rubinstein) asserted that the Attorney
General had threatened to take him into custody. The—dividedcourt stressed the fact that it had not been denied by the
Government that Rubinstein would not engage in reprehensible
activities, and remanded the case to the District Court with
directions to issue a preliminary injunction restraining the Attorney General from revoking Rubinstein's bail and taking him into
custody.
Some comment is required with regard to certain unfortunate
expressions and unsubstantiated theories which appear in the
majority opinion. One of them is the deliberate and wholly unwarranted use of the term "preventive detention," with its well-known
connotation. The respondents—who, incidentally, posted the bonds
including the condition not to accept illegal employment, and were
released thereafter—were never held in "preventive detention,"
but successfully frustrated the efforts of the Service to deport
them when, having admitted the truth of the allegations in the
orders to show cause, and having conceded their deportability,
they took appeals to this Board from the orders of the special
inquiry officer finding them deportable. Those appeals have now
been dismissed by us.—The concomitant reference to our "traditions," which follows the characterization of the retention in
custody of the respondents as "preventive detention," is equally
misplaced. Observing.the laws Congress has enacted is, I respectfully maintain, "more in keeping with our traditions" than permit532

Interim Decision #2256
ting aliens illegally in this country to violate them, a consequence
of the conclusions reached by the majority.
The admonition to expedite "procedures all along the line" is
paticularly inappropriate in an order which would make it possible
for aliens illegally in this country to engage in renewed violations
of our immigration laws. Inasmuch as "dilatory tactics" employed
by aliens consist of appeals to this Board and of proceedings

instituted in the federal courts, there is precious little the Service
can do to expedite "procedures." As everyone who even casually
reads a daily newspaper knows, the Service has already been
doing its utmost to effect speedy deportation of aliens illegally in

this country, but is being overwhelmed by the enormity of the
problem. With hundreds of thousands of aliens already illegally in

this country, and their numbers growing, the present lawful
efforts of the Immigration and Naturalization Service, acting for
the Attorney General, to enforce compliance with the immigration
laws of the United States should be encouraged, and not hampered, by this Board to which the Attorney General has entrusted
certain of his powers of review. The pious 'statement in the last
paragraph of the majority opinion that, "The Service is not
remediless," illustrates the type of ivory-tower approach which we
should avoid.
There is no merit to counsel's novel contention that these
admittedly deportable aliens are entitled to engage in unlawful
employment while they proceed with appeals or pursue collateral
matters.
Under the provisions of 8 CFR 3.1(hX1Xii), decisions of the Board
are to be referred to the Attorney General for review if a majority
of the Board or the Chairman believes that such a referral should
be made. In the present case the Chairman and two Board
members who have espoused the majority opinion have—in my
view, regrettably--declined to refer this important three-to-two
decision of the Board to the Attorney General for review. However, as in all cases, a review of the present Board decision by the
Attorney General will take place, without the concurrence of the
Chairman or the majority of the Board, if the Commissioner of the
Immigration and Naturalization Service requests that the case be

referred to the Attorney General for review, or if the Attorney
General himself directs the Board to refer the case to him. 8 CFR
3.1(h)(1Xi) and (iii). I feel duty-bound to urge respectfully that that
be done.
The Service appeal should have been sustained.
Marianne B. MeConnaughey, Member, Dissenting:
I agree with the majority decision on the jurisdictional issues.
The statute, section 242(a) [8 U.S.C.A. 1252(a)], gives the Attorney

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Interim Decision #2256
General broad power with regard to detaining and releasing aliens
who are involved in deportation proceedings.
I agree with the majority decision that the District Director had
the authority to impose a condition in allowing the respondents
release on bond. The Special Inquiry Officer, quoting from 8 CFR
242.2, reversed the District Director and lifted the condition, giving
as his reasons that the District Director did not have the authority
to impose the condition, and that a bond is only to guarantee an
appearance. I agree that the Special Inquiry Officer has authority
to set aside the condition imposed by the District Director. The
District Director is mistaken in asserting that the right to impose
the condition resides in him with no review by the Special Inquiry
Officer.
Even though the regulations delegating the Attorney General's
power are not as clear as we might wish, the procedure is not
unworkable even in this rather difficult situation. The Special
Inquiry Officer has authority to overrule the District Director, to
lift the condition imposed , or to change conditions, and the Board
has jurisdiction to review the matter.
Under the regulations the Board has authority to review bond
matters. 8 CFR 8.1(b)(7) provides that the appellate jurisdiction of
the Board shall include appeals from "determinations relating to
bond, parole, or detention of an alien as provided in part 242 of this
chapter." Therefore bond conditions imposed by a District Director, approved by a Regional Commissioner, and adjudicated by a
special inquiry officer are appealable to the Board. 8 CFR 2422(a)
and (b) also provide for review by the Board. This is the usual,
customary, orderly manner of proceeding, with the Board performing its proper function as a buffer and intermediary between the
Service and the courts.
The majority decision states, "The statute prescribes no limitations on the nature of the conditions which may be imposed. In
view of the broad grant of power, it seems to us that any
reasonable condition formulated by the District Director as the
delegate of the Attorney General must be sustained. In determining what is reasonable, we must of course take into account the
gloss which this provision has acquired in the courts through the
years."
Section 242(a) is quoted only in part in the majority decision.
However, the statute continues:
... But such bond or parole, whether heretofore or hereafter authorized, may
be revoked at any time by the Attorney General, in his discretion, and the
alien may be returned to custody under the warrant which initiated the
proceedings against him and detained until final determination of his deportability.

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Interim Decision #2256
Since it is conceded that "any reasonable condition formulated
... must be sustained," the majority necessarily concluded that
the condition with which we are concerned here was not reasonable. First, the condition formulated by the District Director seems
to me to be eminently reasonable. Second, I have been unable to
discover that the law and regulations have acquired much interpretive "gloss." We have few bond appeals; the use of bonds by
the Service seems to have worked smoothly and been acceptable.
The very fact that these cases are here on a fairly fundamental or
primitive issue indicates a certain lack of "gloss."
It is true that there have been in use two kinds of bonds: first,

appearance bonds and, second, maintenance of status bonds. It
has long been permissible also to include in bonds either maintenance of or continuance of status provisions, or departure provisions. Bonds serve a variety of purposes. Occasionally the Service
may require that an alien or a parolee remain in a specific area.
An alien in the United States on a student visa may be found out
of school or employed without permission of the Service. He may
be required to post a bond as a condition of his being permitted to
remain and to return to school. This is not a unique situation, as

everyone knows who works in this area. An arriving "visitor" who
has no return ticket and no money may be delayed at the port of
entry until a friend or relative posts a bond to guarantee that the
new arrival does not obtain employment and does depart at the
expiration of his visit. This is a standard procedure.
It seems to me that under the regulations the District Director
could require a bond containing maintenance of status provisions,
and the Special Inquiry Officer could, in his turn, require an
appearance bond. This would be onerous and unnecessary and to
my knowledge is not done. But if this is true, there would seem to
be no reason why one $500. bond should not serve both purposes.
The regulations recognize that standard forms cannot cover
every situation that may arise. 8 CFR 103.6(aX1) and gives the
District Director, with advance approval by the Regional Commissioner, the power to devise new provisions to be used as riders
when necessary. The fact that the rider used in this case constitutes a departure dues nut mean it is illegal or improper.
There is no claim here that any of the respondents have legal
status or eligibility for any relief from deportation except to apply
for a grant of voluntary authority as a matter of administrative
discretion. Deportability has been conceded by counsel, and found
by the Special Inquiry Officer. We are today dismissing the
appeals from the orders of the Special Inquiry Officer. Counsel
claims the respondents have a "constitutional right to work." No
one questions that an alien with a (limited) right to remain
525

Interim Decision #2256
becomes deportable and forfeits his status for accepting unauthorized employment. The visitor who enters in legal status with
documents and a hearing before a Service officer does not enjoy
the right to take a job as soon as he is out of sight of the Service
officer. Is it reasonable to say that respondents who have no
status and no right to remain are free to accept any employment
they choose? They claim the right to seek employment, unhampered by the immigration authorities. How did they who are here
in defiance of law from the time they step over the boundary,
acquire the constitutional right to work and to be free of a

maintenance of status bond? The logic of this position escapes me.
Most important, if the law and the regulations permit the Attorney General and his representatives to detain, to release, to parole
and to rearrest pending deportation, how can it be impermissible
for him to release on a bond containing a condition such as this, a
quite reasonable condition under the circumstances?
The majority decision states that it is not a crime for an illegal
alien to work, that they have been convicted of nothing, and
therefore it is wrong to detain them. Illegal entry and reentry
without permission following deportation are both crimes under
sections 275 and 276 of the Immigration and Nationality Act.
There are no prosecutions, as yet, in these cases, and probably
there will be none. Some of the respondents were granted voluntary departure by the special inquiry officer as a matter of
administrative discretion. Others, who admitted two, four and six
illegal entries, or entries following deportation, or payment to
smugglers to achieve entry, were ordered deported.
The majority attempts to equate this bond condition with a
sentence to jail for commission of a crime. This is not a valid
equation_ The aliens were to be released to go their way upon
posting a bond containing two conditions—that they make themselves available for hearing when they were called, and that they
refrain from accepting unauthorized employment. The latter condition does not differentiate them from all other aliens in the
United States without status. They were not sentenced to detention. In this case it was counsel's choice not to post the bond. The
original agreement to post bond has been discussed. It is not

reaching too far outside the record to note that four days after
oral argument the bond containing the condition was posted, and
the respondents were released. At oral argument the appellate
trial attorney was asked whether the Service would deny respondents employment by some other employer while they pursue their
right to appeal from the orders of deportation. (Page 27, oral
argument). The appellate trial attorney answered, 'Probably not."
Congress has attempted since the early part of this century, as

5 36

Interim Decision #2256
part of its various plans to assure orderly immigration, several
programs such as job assurances, sponsors, preferences, and now
there is an elaborate system of job certifications and exemptions.
These provisions are and have been administered through the
Departments of Labor, State and Justice, attempting to act cooperatively. The laws have changed as our needs changed, and as
the position of the United States in the world economy changed.

It was claimed by counsel that California Originals needs these
particular skilled aliens in order to conduct its business, and that
the Service denied the company's petition to have them admitted
as industrial trainees. Counsel maintained that because the company needs them, and because they want to work, the bond
condition is wrong. The Service expressed concern that respondents hold jobs that should be made available to citizens and legal

residents. I am not particularly concerned about "saving" these
few jobs for the American worker. I would lay aside the economicpolitical factors which consumed much of the time on both sides
during oral argument. The case before us concerns an employer
and a group of aliens illegally in the United States who have
knowingly and defiantly and repeatedly violated the law, and who
intend to continue to do so for as long as possible. At least some
have been deported repeatedly and have returned to the same
employment. I find this new bond condition an interesting development of an enforcement technique, already authorized by the law,
at a time when the Service desperately needs new enforcement
techniques. The snowballing problems facing the Service are well
known. It has been widely said that taking the profit out of illegal
entry, both for the aliens and the employers, is the only real way
to discourage repeated illegal border jumping.
Counsel asserted that this is a case of first instance or a "pilot
case," that it represents a new policy, that if we permit the Service
to impose this no-work condition the Immigration Service will
exact a similar bond from every alien arrested inside the United
States. The appellate trial attorney denied that the Service has

such an intention. He stated that the result of such action would
be great hardship, that large numbers of dependents would be
forced onto relief rolls pending processing of immigration cases,
and that this is not what the Service wants.
Review jurisdiction is with us in every case, as well as in the
courts. I do not fear that the District Director would use this
power casually o-. capriciously. If we sustain the bond requirement, the alien may then pursue his remedy in court. We would
expect the Di ,A;rict Director to use this power sparingly, recognizing that he may not act capriciously.
To recapitulate: The Attorney General has the authority to
537

Interim Decision #2256
order a bond containing a reasonable condition and in an amount
reasonable under the circumstances of the case. Maintenance of
status provisions in bonds are not new; only the use of them in
this particular situation is new. There are provisions in the
regulations for new kinds of bond conditions in the form of
"riders." There appears to be no reason why two separate bonds
could not have been required, but a single bond serving a double
purpose is more efficient. Detention can be used for purposes other
than as punishment for commission of a crime; respondents were
asked only to refrain from accepting unauthorized employment
and were released when the required bond was posted. The
condition ordered here was a proper condition. I would reverse the
special inquiry officer's order and approve the District Director's
imposition of the bond condition.
BEFORE THE BOARD

(April 6, 1973)
This matter is before us on a Service motion for reconsideration
of our order dated September 7, 1972. That order dismissed the
Service's appeal from a special inquiry officer's decision striking
from respondents' appearance and delivery bonds a condition
against acceptance of unauthorized employment. We adhere to our
order of September 7, 1972 and deny the motion for reconsideration.
The facts have been fully stated in our prior order and need not
be repeated at length. Respondents are all aliens, natives and
citizens of Mexico, employed by a ceramics manufacturer, California Originals of Torrance, California. All had previously worked for
the same employer while here illegally and, after leaving the
United States, had returned here illegally with the intention of
resuming their jobs. Deportation proceedings were started, they
were arrested, and their release from custody was ultimately
authorized on posting of a $500 appearance and delivery bond by
each. The District Director had inserted in each bond an additional
condition against acceptance of employment not authorized by the
Service. This condition was admittedly designed to prevent their
further employment by California Originals. On their request for a
redetermination, the special inquiry officer deleted the condition
against unauthorized employment. The District Director appealed
to this Board from the special inquiry officer's decision, execution
of which was stayed pending appeal. Under protest, the respondents posted bond containing the questioned condition and were
released, it being agreed that their right to challenge the contested bond condition should not be prejudiced by their release.
538

Interim Decision #2256
They promptly returned to their employment with California
Originals.
In our order of September 7, 1972, we dismissed the Service
appeall We unanimously rejected the Service contention that the
District Director's exaction of the challenged bond condition was
not subject to review by the special inquiry officer or by this Board
on appeal. By a divided vote, we concluded that in this setting, the
exaction of such a condition is impermissible.
In its motion for reconsideration, the Service no longer questions the power of the special inquiry officer or this Board to
review the District Director's bond determination in all respects. It
argues strongly against the position taken by the majority of this
Board that the bond condition here imposed is unreasonable.

Preliminarily, the Service questions Sur definition of the issue.
In our opinion of September 7, 1972, we stated (at p. 8):
While it is a bond condition which in form confronts us, in reality the issue
directly involves detention. If the respondents refuse to agree to the condition
laid down by the District Director, i.e., that they shall not accept employment
unauthorized by him, they will simply be continued in custody until the adjudication of their deportability becomes final and they can be deported.

After analyzing the reported decisions relating to detention of
aliens, we then proceeded to hold that the "no unauthorized
employment" provision cannot in this setting be exacted as a

condition of the respondents' release from detention in deportation
proceedings.
Detention, argues the Service, is not directly involved. "The
penalty is not detention in the event of a vidlation of the bond, but
the loss of the $500" (Motion for Reconsideration, p. 7). 2The Service
points to the new and broad language of the power conferred in
section 242(a) of the Immigration and Nationality Act, which

permits release under bond "containing such conditions as the
z On the same day, we dismissed the respondents' appeals from the orders

entered in the deportation proceedings, finding them to be deportable. Petitions
for review of our orders in the deportation proceedings were later filed under
section 106(a) of the Immigration and Nationality Act in the United States Court
of Appeals for the Ninth Circuit. We are informed that on January 2, 1973 the
petitions for review were dismissed.
2 See also Service Memorandum in Opposition to Brief Amiens Curiae, page 5:
"The brief cordons curiae is premised in large part on the erroneous assumption
that 'bond conditions' and 'custody' are necessarily synonymous. The purpose of
the bond condition, in this instance, is to act as a deterrent to continued acts in
flagrant violation of the immigration laws. The threat of forfeiture of the bond is
a deterrent. Custody is something else. Even if the bond is breached, it by no
means follows that confinement is desirable or indicated, or will necessarily take
place. That decision, too, must rest in the sound discretion of the District
Director, based on a new and different set of considerations."

539

Interim Decision #2256
Attorney General may prescribe." It is the Service position that
the decisions arising under the former statute and those dealing
solely with custody do not supply the proper standards to measure
the validity of the bond conditions newly authorized by the 1952
Act (Service Memorandum in Opposition to Brief Amiens Curiae,
pages 2-5).
Such a simplistic approach ignores the realities of the situation.
It seems clear to us that detention permeates every bond such as
those here involved. A bond is merely an undertaking by the
obligor that he will perform the conditions specified or pay the
stipulated penal sum. But before any such undertaking, containing any conditions, can be exacted, there must be some leverage
which can be applied to the obligor to induce him to become thus

bound. In this case, it is detention which supplies the leverage.
In the case of an alien applying for admission to the United
States as a nonimmigrant, if there is doubt as to whether he will
maintain his status once admitted, a maintenance of status and
departure bond can be exacted as a condition of his admission. If
he fails to post the bond, he is excluded from admission. The threat
of exclusion is the leverage which induces such an alien to post
bond.
In the case of an alien admitted to the United States as a
nonimmigrant who applies for an extension of stay, if there is
doubt as to whether he will continue to maintain his nonimmigrant status, a maintenance of status and departure bond can be
exacted as a condition of the grant of an extension of stay. If he
fails to post the bond, the extension of stay is denied and he must
depart or face deportation proceedings. The threat of denial of the
extension of stay is the leverage which induces such an alien to
post bond.
In deportation proceedings brought against an alien already
within the United States, arrest and temporary custody of the
alien are no longer required in every case. Section 242(a) of the Act
now provides that, pending determination of deportability "such
alien may, upon warrant of the Attorney General, be arrested and

taken into custody." (Emphasis added.) Most deportation proceedings now are started by the issuance of an Order to Show Cause
alone, without the issuance of a warrant of arrest. It is only where
the alien is arrested that the ensuing provisions of section 242(a)
come into play. The statute continues:
... Any such alien taken into custody may, in the discretion of the Attorney
General and pending such final determination of deportability, (1) be continued
in custody; or (2) be released under bond in the amount of not less than WO
with security approved by the Attorney General, containing such conditions as
the Attorney General may prescribe; or (3) be released on conditional parole....

540

Interim Decision #2256
Thus, the bond posted by a detained alien, whatever its condtions, is an alternative to detention. Unless released on bond or
conditional parole, the alien is continued in custody. Where the
power to detain ceases by time limitation, as is the case under
section 242(d) of the Act, the power to require bond as a condition
of enlargement ceases, too, Schrode v. Rowoldt, 213 F.2d 810 (CA.
8, 1954). Thus, it is the power to detain, coupled with the threat of
detention, which is the leverage which induces an alien in deportation proceedings to post bond.
That the bond may contain discrete conditions (including the

one here in question, having nothing to do with the alien's
availability for hearing or deportation) does not alter the fact that,
unless the alien is willing to bind himself to each of the required

conditions, he will not gain release from detention. It is immaterial
that the Service may, on breach of the condition, be content to
collect the penal sum and refrain from once more taking the alien
,into custody (see footnote 2, supra). What concerns us here is the
power of the Service to exact such a commitment as a condition of
release in the first place, not what action the Service may or may
not take once the commitment has been violated. The respondents
posted bond containing the contested condition and gained their
release, but this was solely on the agreement that they would not
thereby prejudice their challenge on appeal to the lawfulness of
that condition. Had there been no such agreement and had the
aliens remained in custody, could there be any doubt that the
condition insisted on by the District Director would have been
directly related to their detention? We adhere to the view that the
issue before us directly involves the power to detain and that the
considerations governing release from detention apply.
In short, we reject the notion that when the District Director
exercises the Attorney General's delegated power to presciibe
bond conditions conferred by section 242(a) of the Act, he is not
simultaneously involved in a direct application of the detention
power conveyed by the same provision. The court decisions cited in
our original opinion, which discuss the factors pertinent ito the
detention of aliens in deportation proceedings, are clearly germane.3
3 Admittedly, no court has thus far dealt with the precise bond condition now
before us, for its use by the Service is concededly novel. At the same time, we are
entitled to consider what the courts have said generally on the subject in
dealing with questions of enlargement from Service custody and similar issues.
See, e.g., Low May Ma v. Barber, 357 U.S. 185, 190 (1958): "Physical detention of
aliens is now the exception, not the rule, and is generally employed only, as to
security risks or those likely to abscond ... Certainly this policy reflects the

541

Interim Decision #2256
The provisions of section 242 of the Act relating to the arrest,
release, and supervision of aliens in deportation proceedings were
designed primarily to see to the alien's continued availability for
hearing when required and for deportation if found deportable.
The provision authorizing bond "containing such conditions as the
Attorney General may prescribe," while stated in general terms,
must be read in the context of the statutory scheme. Cf. United
States v. Witkovich, 353 U.S. 194 (1957).
For purposes of this decision, we need not define in legal terms
the nature of respondents' employment opportunities pending
their actual deportation. At oral argument (Tr. p. 12 et seq),
counsel for the respondents argued that every alien in the United
States, even an alien here unlawfully, has a constitutionally
protected right to earn a living, i.e., to hold down a job. We need
not pause to consider whether the respondents' undoubted power,
if unmolested, to maintain their positions with California Originals
is properly classifiable as a right, a privilege, or merely an illicit
opportunity. While their continued employment may be unlawful
in the sense that it violates the policies of our immigration laws,
the fact remains that no law now on the'books makes it a crime for
them to be thus employed. The only civil sanction for such
unauthorized employment is deportation. Since the respondents
are already deportable on other grounds, their continued employment until such time as they are actually deported, however
unlawful such employment may be, does not make them any more
deportable than they already are.
In seeking to justify in a deportation context this new bond
condition against unauthorized employment, the Service emphasizes the deterrent effect of the monetary forfeiture provision and
disavows any general Service policy of rearresting the recalcitrant
alien who violates the condition once released. We fail to see how
such forebearance is pertinent to the issue before us. It as we
have held, the imposition of this bond condition is impermissible as
a prerequisite to release from detention in the first place, it
receives no added sanction by the Service's representation that it
will refrain from rearresting the alien if on release he breaches the
impermissible condition.

Moreover, unless to the threat of monetary loss in the event of
breach there is added the threat of renewed detention, this new
bond condition becomes in effect a mere licensing provision, the
exaction of a fee from those aliens (or their employers) willing to
humane qualities of an enlightened civilization;" United States v. Wong Kim Bo,
466 1.'.2d 1298, 1304 (C.A. 5, 1972); "II.5 (arrest's] sole function is a security device
to fissure that the alien does not evaporate."

542

Interim Decision #2256
pay it, for what amounts to a license to work here illegally until
deported. To be truly effective as a deterrent, the penal amount of
the bond would have to be raised to a figure sufficiently high to
make a forfeiture really painful. But the fixing of such high bail
could readily preclude the alien from raising the required amount
and thus prevent his release from detention in the first place, a
result which the Service says it does not seek.'
In arguing for the power to impose the work-prohibition condition here in issue, the Service disavows any intention of using that
power extensively and indiscriminately, stating that "its actual
use would be confined to a flagrant violation such as we have
here" (Motion for Reconsideration, p. 8). Esentially, it is the fact
that the respondents work for California Originals that is crucial;
if they worked illegally for some other employer the same bond

condition would probably not be imposed (Tr. of oral argument, p.
27). If the imposition of this bond condition is impermissible
against deportable aliens generally, then' its use against respondents because they work for California Originals constitutes, in
effect, a Service attempt to use their detention as leverage against
their employer. In our view, the use of the detention power in
order to reach an employer who has displeased the Service is
equally impermissible.
The Service attempts to equate the bond condition here involved
with the maintenance of status provisions of bonds authorized in
the cases of applicants for admission as nonimmigrants or for
extension of nonimmigrant stay. "Since aliens are admitted to the
United States with a restriction mandated by the Congress
against their taking unauthorized employment, it is not seen why
the same restriction is unreasonable when applied to a bond for a
deportable alien who would clearly [have been] excludable at time
of admission if his intent to accept employment were known"
(Motion for Reconsideration, p. 12). The short answer is that, as
the Service recognized at oral argument (Tr. p. 27), a deportable
alien is out of status and no longer has a lawful status which the
bond provision can induce him to maintain. Different considerations are involved in the cases of nonimmigrant applicants who
arc in lawful status and in the cases of deportable aliens who have

allegedly lost their right to remain here lawfully. In the case of the
latter, as we have seen, the bond condition in question is not a
guarantor that they will maintain their lawful status but an
impingement on their release from detention while their deportability is in process of adjudication. If the condition sought to be
4 Motion for Reconsideration, p. 7! "The Service does not seek the aliens' detention. It wishes them released, for their sake and to minimize further expense to

the government, if for no other reasons ..."

543

Interim Decision #2256
imposed is an impermissible one, it is no answer to suggest that, in
any event, "review jurisdiction is with the Board and the courts"
(Motion for. Reconsideration, p. 9)
In our original decision, we suggested that expedited deportation, rather than detention, is the way to thwart illegal employment by deportable aliens. In its Motion for Reconsideration (p. 15)
the Service challenges our suggestion, asserting that "frivolous
and dilatory appeals, and the inescapable strictures of overloaded
court calendars, tend to make this remedy [expeditious forcible
expulsion] more illusory than meaningfuL" If existing procedures
have flaws which open the door to delay, then it seems to us that
the proper way to deal with the situation is to revise and refine
the procedures. The use of detention as leverage to discourage
delay which existing procedures may make possible is not, in our
view, a permissible way to cope with the problem, Matter of Au,
Interim Decision No. 1939 (BIA 1968); Matter of Moan, Interim
Decision No. 2021 (BIA 1969, 1970).
ORDER: The motion for reconsideration is denied.
,

Wiskicn IL Torrington, Member, Tlicconting:

In my previous dissenting opinion, I stated the following: "The
cases cited on page 8 of the majority opinion have no relation to
the issue that is before us. That issue is simply whether the
condition here sought to be imposed is reasonable or not." In its
opinion of September 7, 1972, the majority had declared the bond
condition against unlawful employment to be "unreasonable,"
although it could not find any authorities supporting its holding
which contravenes the clear provisions of section 242(a) of the
Immigration and Nationality Act.
As the new opinion which denies the Service's motion for
reconsideration reveals, the majority has still found nothing to
support its thesis that an alien who, under the applicable law,
must be deported, has, by the very fact of his previous violations of
our laws and his ensuing deportability, gained the right further to
violate the laws of the United States until he is actually deported.
I have to disassociate myself from that kind of illogical and
tortured reasoning.
While the verbiage employed in the new majority opinion appears to have little relation to the issue, and merely tends to
obscure it, it does constitute a belated attempt to provide some
underpinning for the original majority opinion's theories, and
therefore cannot be passed over without comment.
1. Although it speaks of "the realities of the situation," the
majority opinion continues its ivory-tower approach to the facts
and the law. Instead of addressing itself to the issue, it talks about

Interim Decision #2256
aliens applying for admission to the United States as nonimmigrants and about aliens applying for extensions of stay, and
reports its discovery that such aliens do indeed post bonds requiring them to abide by the laws of our country. That is nothing new;
and it has, of course, nothing to do with the issue. The issue is not
the application of a newly invented theory of "leverages," but
simply whether the statute (section 242(a) of the Immigration and
Nationality Act) denies to the Attorney General the power to
require deportable aliens not to continue previous violations of our
laws. It does no such thing.
2. As I pointed out in my previous dissent, the majority has not
gone so far as to maintain that a bond condition against unlawful
employment is unconstitutional, illegal, or immoral. It has merely
attempted to misconstrue a clear provision of the statute which
needs no construction. It has stated that, "We need not pause to
consider whether the respondents' undoubted power, if unmolested, to maintain their positions with Califrnia Originals is
properly classifiable as a right, a privilege, or merely an illicit
opportunity." It would have been refreshing if the majority had
indeed "paused" to state, in straightforward language, the rather
elementary principle that a nonimmigrant alien has no right
whatsoever to engage in unauthorized employment at any stage
of his stay in the United States. The majority's refusal to "define
in legal terms the nature of respondents' employment opportunities pending their actual deportation" (as the majority opinion

puts it) reveals an astounding indifference to that elementary
principle. Even more objectionable is the majority opinion's use of
loose language which regrettably and wrongly implies that the
respondents' illegal employment just "may be" unlawful.
3. On page 9 of its opinion of September 7, 1972, the majority had
stated that "The Service candidly concedes that the use of the 'no
unauthorized employment' condition in an appearance and delivery bond to secure the release of an alien in deportation proceedings is novel." The present majority opinion again insists that the
bond condition with which we are here concerned constitutes
something "new." What the Service, through its appellate trial
attorney, had stated at oral argument conducted through an

experimental and unsatisfactory telephone hook-up on August 14,
1972, was quite different. There, in explanation of his answer to a
leading question put to him by the writer of the majority opinions,
the appellate trial attorney stated the following: "You are talking
now about or in connection with an appearance bond after deportation proceedings, that narrow area. I would say yes, we have not
gone this route, certainly not many times to my knowledge..." (Tr.
of Oral Argument, page 24). The plain fact is that no survey

545

Interim Decision #2256
determining the frequency of the imposition of the bond condition
here involved has ever been made. What is really "novel" is,
however, the following:
a. The fact that, up to now, nobody had advanced the notion
that, as I put it in my prior dissenting opinion, the Immigration
and Nationality Act directs "the Attorney General to stand idly by
while aliens who, being represented by experienced immigration
counsel, have admitted the truth of the allegations in the orders to
show cause, and have conceded their deportability, flagrantly
violate the immigration laws of the United States;" and that a
bond condition against unlawful employment is therefore "unreasonable."
b. The fact that only in recent years aliens have entered this
country illegally by the hundreds of thousands.
c. The fact, that, through employment of experienced immigration counsel, and through imaginative use of all conceivable
administrative and other remedies, aliens illegally in this country
are nowadays often managing to stay here for years.
d. The fact that the huge numbers of aliens now illegally in this
country are taking away countless jobs from our citizens and from
lawful permanent residents, and that their illegal employment
tends to depress the wages that would normally be paid to
American workers.
e. The fact that those aliens now illegally in this coutry who
• choose not to work collect welfare payments, and obtain free
medical care at our hospitals, and that the children of illegal aliens
obtain free schooling, all to the detriment of the American taxpayers.
f. The fact that the Service, with its limited personnel, can no
longer cope with the tremendous illegal influx of aliens, and is
attempting, through increased use of bond conditions like the one
here under consideration, to make it less profitable for illegal
aliens to engage in the prevalent whoesale violations of our
immigration laws.
4. A number of undisputed and irrelevant facts are reported in
the majority opinion as great revelations. It is quite true that,
"Most deportation proceedings now are started by the issuance of
an order to show cause alone, without the issuance of a warrant of
arrest." So what? That simple question can also be asked with
regard to the majority's statement that "detention permeates
every bond such as those here involved." The issue before us was
not, and is not, the manner in which deportation proceedings may
be commenced, or the permeability or permeation of bonds, but
simply whether the bond condition against unlawful employment,
which the Attorney General, through the District Director, has
546

Interim Decision #2256
imposed on admittedly deportable aliens engaged in unlawful
employment is so unreasonable that it cannot be imposed by him
under the rather clear provisions of section 242(a) of the Immigration and Nationality Act.
5. In both the majority opinions and the dissenting opinions, we
have discussed the matter before us in terms of the powers of the
Attorney General under section 242(a) of the Immigration and
Nationality Act. However, we must not forget that much more is
involved. The Attorney General is the chief law enforcement
officer of the United States. Thus, the views of the majority which
have found expression in its unfortunate decision would be a
major step toward preventing the United States from effectively
protecting its people against continual wholesale violations of our
most humane immigration laws.
6. I reject the majority's unjustified concern for admitted-law
breakers, and its underlying permissive ideology and -Vews here
expressed which, in my considered opinion, would go a long way
toward frustrating the orderly and just administration of our
immigration laws.
On reconsideration, the Board order of September 7, 1972,
should have been withdrawn, and the Service appeal should have
been sustained.
In my dissenting opinion of September 7, 1972, I reported that
the majority had resolved not to accede to the request of the two
dissenting Board Members that the Board's decision be referred to
the Attorney General. On reconsideration of this matter, one of

the members of the majority has now joined us in requesting that
such a referral be made. Thus, the Board's decisions will have to
be submitted to the Attorney General for his scrutiny and review,
in compliance with the provisions of 8 CFR 3.1(h)(1Xii).
Marianne B. McConnaughey, Member, Dissenting:

It is necessary to put this controversy back into proper perspective, stripped of extraneous arguments. It is not necessary to
restate here the statute and regulations which were set forth in
our original decisions. The Service memorandum in opposition to
the brief amicus curiae (Dec. 19, 1972) outlines the development of
the bond provision from the 1917 Act to the present amended
broad language of 242(a) of the 1952 Immigration and Nationality
Act.
There are two positions here which run a head-on collision
course. Either: (1) The bond provision was an abuse of discretion,
and the aliens have a constitutional and absolute right to remain

here and to work without interference, even though they work
547

Interim Decision #2256
illegally, while they litigate their frivolous appeals through the
Board and the courts; or (2) the Attorney General's power to
prescribe the terms of bonds, arrest, release, detention, re-arrest
and parole of illegal aliens was exercised in these proceedings in a
rational and appropriate manner in accordance with the regulations.
If position (1) above, is true, the Attorney General has not the
power under the statute and regulations to change bond provisions or, if the need arises, to create new bond provisions. The
majority of the Board denies the Service motion for reconsideration and again quotes from section 242(a) of the Immigration and
Nationality Act, but again they ignore the second sentence of that
section which gives the Attorney General the authority to rearrest, to revoke the bond approval, and to detain the alien until
"final determination of his deportability".
There appears to be little controversy regarding the Attorney
General's discretion in the matter of bail pending deportation
proceedings. Under section 103(a) of the Act, (8 U.S.C. 1103) the
Attorney General has broad authority to establish regulations to
carry out his authority. Bilbao-Bastida v. I&NS, 409 F.2d 820 (CA.
9, 1969), cert. dism. 396 U.S. 802 (1969). The regulations of the
Attorney General must be upheld if they are founded on considerations rationally related to the statutes he is administering. Fook

Hong Mak v. I&NS, 43b F.2d 728, 730 (C.A. 2, 1970). Furthermore,
the Attorney General's exercise of discretion will "be overturned
only by a showing of clear abuse," by demonstrating that the
Attorney General's action "was without reasonable foundation".
Carlson v. Landon, 342 U.S. 524, 540-41 (1952); U.S. ex rel Belfrage
v. Shaughnessy, 212 F.2d 128, 129 (C.A. 2, 1954); U.S. ex rel Polash
v. District Director, 169 F.2d 747, 751 (C.A. 2, 1948). The recent U.S.
ex rel Barbour v. District Director, SA-72-CA-367 (U.S.D.C. Texas
1973), states that the court must not substitute its judgment for
that of the Attorney General's, and that review is limited to
ascertaining if there is substantial evidence in the record to
support the factual basis upon which his discretionary decision
rests, citing Jarecha v. INS, 417 F.2d 220, 224-25 (C.A. 5, 1969), and
Application of Maringolo, 303 F. Supp. 1389, 1392 (S.D.N.Y. 1969).
It must be remembered that in Carlson v. Landon, supra, and in
Barbour, supra, bail had been denied entirely, and it was held in
both cases that denial of bail was not an abuse of discretion. If the
Attorney General has the power to detain, surely he has the power
to fix bond conditions. The lesser power is included in the greater
power. The majority finds the new bond provision "impermissible",
but I do not yet know why it is "impermissible". The respondents

were not held without bail nor was "excessive" bail imposed. They
548

Interim Decision #2256
were released on the minimum bond (POO) provided by the
statute.
The majority argues that the "threat of detention is the leverage which induces the obligor to post the bond." This, of course, is
obvious. Anyone who posts a bond and agrees to comply with bond
provisions does so in order to secure his release from detention.
The threat of arrest and detention is always present and within
the hands of the Attorney General. The alien, illegally here and
illegally employed, is gambling that the leverage will not be used,
or at least that he will not be apprehended immediately and, if
apprehended; will not be detained. His past experience has shown
him that he has a good chance of winning the gamble:
The argument goes further, saying that the bond is "impermissible" as a maintenance-of-status bond, because the alien is already
out of status, and therefore he has no status to maintain. In
response, I have pointed out that the alien in the United States
legally in the status of visitor or student has no "right" to work;
the statute and the regulations do not contemplate that an alien
illegally in the United States has a "constitutional" or "legally
protected" right to work - "unmolested" is the word used in the
brief amicus. As the Service memorandum in opposition to brief
amicus, December 19, 1972, notes, "Section 242(a) does for deportation proceedings what Section 212(d)(6) does for exclusion proceedings. ...`no-work' conditions are routine under Section 212(d)(6).
There is no reason for a different rule under Section 242". It is
admitted that the use of the bond condition in these circumstances
is new, but it is not different from other maintenance-of-Status
bonds.
The factor which most concerns the majority, I believe, and has
concerned me, is they fear that the power to detain could be used
widely and abusively to prevent aliens from taking their appeals.
It is possible that most powers can be abused in the absence of
restraints. The courts and this Board would be very watchful to
insure that abuses would not occur. The alien has a right to appeal
and to litigate, even frivolously. It would be an abuse of the
Attorney General's discretion in bond matters if the power were
used solely as a device to defeat an appeal. This was not the
situation in the cases now before us.
In these cases the aliens were repeated offenders. They might
have been continued in detention until deportation proceedings
were complete. Instead of being detained, they were released upon
posting a bond containing a new provision. The new bond condition (that the aliens not return to the unauthorized employment)
is rationally and reasonably related to the purposes of the statute.
It did not constitute an abuse of the Attorney General's discretion
549

Interim Decision #2256
under the aggravated circumstances of this case. The use of the
bond condition should be sustained.
BEFORE THE BOARD

(April 6, 1973)
ORDER; The majority of the Board having concluded that this
case should be referred to the Attorney General for review of the
Board's decision, the record is referred to the Attorney General
pursuant to S CFR 3.1(h)(ii).
BEFORE THE ATTORNEY GENERAL

(January 9, 1974)
The Board of Immigration Appeals, pursuant to 8 CFR 3.1(h)(ii),
referred this case to me for review. On September 7, 1972, the
Board dismissed the appeal of the Immigration and Naturalization Service from the decision of a special inquiry officer who had
deleted a bond condition prohibiting unauthorized employment,
which the Service had utilized in connection with deportation
proceedings. Thereafter, the Board denied the Service's motion for
reconsideration of the Board's prior decision and, on April 6, 1973,
the Board referred the matter to me.
The facts, as set forth in the decisions of the Board and in the
Service's motion, are as follows: The respondents in the deportation proceedings were ten aliens, each of whom was a native and
citizen of Mexico. At the time the deportation proceedings were
commenced, all of the respondents were employed by California
Originals, a ceramics manufacturer located in Torrance, California. iThe respondents were arrested by the Service at the start of
the deportation proceedings, and, pending a hearing, the group
was released on a single bond. The bond contained a condition,
inserted by the District Director, providing in effect that the
respondents would not accept any employment without authorization of the Service?
Subsequently, the special inquiry officer entered orders finding
each of the respondents to be deportable. Five were deportable for
1 Each of the respondents had worked for California Originals during a prior
period of unlawful presence in the United States. Then, after leaving the United
States, each had returned illegally for the purpose of resuming employment at
California Originals.
2 The condition had been approved, pursuant to 8 CFR 103.6(a), by the
Regional Commissioner. The pertinent language of the bond is set forth below in
Appendix A.
Prior to the present case, no such condition had ever been included in a bond
used in connection with deportation proceedings.

550

Interim Decision #2256
having entered the United States without inspection; and the
others, for having remained longer than permitted after having
been admitted as visitors. Each respondent conceded deportability.
The first bond was vacated and individual bonds for each alien
were substituted. Thereafter, the special inquiry officer reduced
the amount of each of the bonds to $500 (from $1000). The District
Director prepared new bonds, all of which contained the condition
regarding employment.
At the request of counsel for the respondents, the special inquiry
officer reopened the bond proceedings 5and, after a hearing, deleted

the condition concerning employment. He held that the District
Director had no authority to include such a condition in an
appearance-and-delivery bond. The special inquiry officer stayed
execution of his order, pending the Service's appeal to the Board.
On August 14, 1972, the Board heard argument regarding the
Service's appeal. Under protest, the respondents posted bonds
containing the disputed condition and were released.
On September 7, the Board entered an order, with two members
dissenting, dismissing the Service's appeal in the bond proceeding
and a separate order dismissing the appeals of the respondents

from the orders of deportation.4In support of the farmer order, the
majority of the Board stated that the primary purpose of bonds
used in connection with deportation proceedings (i.e., bonds authorized by section 242(a) of the Immigration and Nationality Act,
8 U.S.C. 1252(a)) is to assure that the alien will appear at hearings
and, if ordered deported, will be available for deportation. According to the majority, the use of such a bond to deal with the
unrelated problem of illegal employment was not permissible.
At the request of the Service, the Board stayed execution of its
order regarding the bond condition, pending the filing of and
determination of a Service motion for reconsideration. The respondents then returned to their employment at California Originals. The District Director had advised them that such employment would be regarded as breach of the bonds.
On October 5, the Service filed its motion for reconsideration. 50n
3 The pertinent regulation, S CFI 2422(b), provides that proceedings regarding bonds or custody are to be separate from deportation proceedings and are to
have separate records.
4 Subsequently, the respondents filed in the United States Court of Appeals for
the Ninth Circuit petitions for review of the Board's order in the deportation
proceedings. The petitions had the effect of staying the order of deportation. See
8 U.S.C. 1105(aX3). On January 5, 197,3, the petitions were dismissed by the Court
of Appeals.
5

Briefs opposing the motion for reconsideration were filed by the respondents

and by the Association of Immigration and Nationality Lawyers, as amicus
curiae.

551

Interim Decision #2256
April 6, 1973, the Board, again by a vote of three to two, denied the
motion for reconsideration. The majority, relying in part upon
judicial rulings regarding the grounds which warrant detention of
an alien, held that the Service has no authority to impose, in an
appearance-and-delivery bond, a condition limiting employment,
and that at present the only civil sanction to deal with the
employment of aliens here illegally is their deportation.
As noted above, the Board referred this matter to me, staying
execution of its orders regarding the bond condition, pending my
decision.6

The basic issues presented are (1) whether the Immigration and
Nationality Act authorized the inclusion, in a bond required in
connection with deportation proceedings, of a condition prohibiting
unauthorized employment; and, if so, (2) whether use of such a
condition in the circumstances of this case was proper.
The most pertinent statutory provision is section 242(a) of the
Immigration and Nationality Act (the "Act"), 8 U.S.C. 1252(a).
That subsection provides in part that, pending a determination of
deportability, an alien who has been taken into custody may, in
the discretion of the Attorney General, (1) be continued in custody,
(2) be released under bond containing such conditions as the
Attorney General may prescribe or (3) be released on conditional
parole?
The position taken by the Service in this case may be summarized as follows: Under section 242(a) of the Act, and the related
regulations,8 the Service has broad authority with respect to such
matters as determining bond conditions. In assessing the validity
of a particular condition, the test is one of reasonableness. The
a Statements contained in the record in this case indicate that two of the
respondents had left the United States prior to the Board's decision of April 6,
1978.
Information obtained from the Service after the referral to me indicates that
the remaining eight respondents were ordered to appear for deportation on
February 14, 1973, that five of them did appear and were deported on February
14, and that the remaining three did not appear and had not yet been located by
the Service.
Thus, significant changes in the circumstances of the respondents have taken
place since the filing of the Service's appeal in the bond proceeding. Nonetheless,
it does not appear that the basic legal question is moot. For example, a decision
that use of the condition regarding employment was proper might lead to action
by the Service to enforce that condition. Cf. Watzek v. United States, 134 F. Supp.
605 (S.D.N.Y., 1955); Earle v. United States, 254 F.2d 384 (CA. 2), cert. den., 358
U.S. 822 (1958). In any event, the question is one which may recur and a decision
by me, in the present case, is appropriate. e ,
7 Subsection 242(a) is set forth in its entirety in Appendix B.
a See 8 UNIC 2442(a). The regulations are Issued under a delegaLiun of
authority from the Attorney General. 28 CFR 0.105(b).

552

Interim Decision #2256
present case involves flagrant violation of the immigration
laws,9 and in these circumstances use of the condition concerning
employment was reasonable.
As noted above, the majority of the Board, in its original
decision and on rehearing, rejected the position of the Service. The
majority recognized that the immigration laws did not permit the
respondents to be employed in the United States, but held that the
illegality of their employment did not provide a basis either for
detention or for a condition in a bond which bond represented an
alternative to detention. 1°
For reasons to be explained, my conclusions are as follows: The
pertinent statutory provisions authorize, in at least some circumstances, the inclusion in appearance-and-delivery bonds of conditions which bar unauthorized employment. However, the use of
such conditions should be specifically governed by a published
regulation of the Service. Because no such regulation exists, the
result reached by the majority of the Board should be sustained.
The provisions of section 242 of the Act deal with the several
stages of the deportation process. In the proceedings before the
Board, primary emphasis was placed upon section 242(a), concerning custody, release and related matters "pending...ta] final determination of deportability."l'However, since the orders of deportation of the respondents became final after the Board's initial
decision, section 242(c) is also pertinent. That provision affords the

Attorney General a period of six months following the entry of a
final deportation order in which to effect the alien's departure
from the United States. During that period the Attorney General
has discretion to detain the alien, release him on bond "containing
such conditions as the Attorney General may prescribe," or release
him on other conditions prescribed by the Attorney General.
The legislative history of sections 242(a) and (c), which were

enacted in 1952 but derived from section 23 of the Subversive
9 The factors stressed by the Service are the following: (1) a group, consisting
of at least ten unlawful aliens, is involved; (2) most of the aliens are previous
immigration violators who re-entered the United States for the specific purpose
of resuming employment at California Originals: (3) all of the respondents are
clearly deportable and their appeals are designed solely for delay; (4) there was
every reason to believe that the aliens would immediately resume their unauthorized employment; and (5) if standard wages were paid, persons in the United
States would be available to fill the positions.
10 The two members of the Board who dissented expressed the view that the
Attorney General has broad discretion concerning bond conditions and that the
condition used in this case was, in view of the particular facts, reasonable and
proper.
11 Section 242(a) is quoted in Appendix B.

553

Interim Decision #2256
Activities Control Act of 1950,12indicates that Congress intended to
give the Attorney General broad discretion regarding the matter
of release on bond or otherwise. The nature and scope of this 1950
legislation, which clarified prior law, were explained as follows in
the House and Senate Committee Reports: 13
The bill will expressly authorize the Attorney General, in his discretion, to
hold arrested aliens in custody, or to release them under bond or on conditional

parole, pending final determination of their deportability and for a 6-month
period after an order of deportation is issued and while such negotiations (with
officials of foreign governments] take place. The bill further provides that
among the conditions of any bond exacted, or in the terms of release on parole,

there shall be a condition that the alien shall be produced when required for
defense against the charges upon which he appears to be deportable and for
deportation if he is found subject to that action. A similar provision relates to
release on bond or parole for 6 months after the alien has been ordered deported. These provisions, of course, enumerate only one of the conditions which
is mandatory in the bond or as a parole condition. The bill intends that the
Attorney General shall have full discretion in imposing any other conditions or
terms in the bond or parole agreement which he may see fit to include. Thus, a
man released on bond might have as a condition of the bond that he also be
subject to make periodic reports to the immigration officials as to his whereabouts and furnish other desired information. Or a bond might provide as one of
its conditions that upon demand by the Attorney General the existing bond
shall be surrendered and a new bond in greater or less amount or other conditions shall be furnished. The bill intends that the Attorney General shall have
untrammeled authority to impose such conditions or terms as he sees fit in
releasing an alien under bond or conditional parole pending final determination
of the deportability of the alien and for 6 months after an order of deportation
has been issued against him.* * *

It would be unreasonable to construe the quoted language to
mean that the Attorney General may impose bond conditions
which are totally unrelated to the various purposes of the immigration laws, but the reports clearly demonstrate a Congressional
intent to grant wide discretion otherwise."

12 64 Stet. 987, 1010 (1950). Sections 242(a) and (e) were enacted as part of the
Immigration and Nationality Act of 1952, see S. Rep. No. 1137, 82d Cong., 2d
Sess., p. 29 (1952); H. R. Rep. No. 1365, 82d Cong., 2d Sess. (1952), p. 57.
The quotation is from H.R. Rep. No. 1192, 81st Cong., 1st Sess. p. 6 (1949).
The same language appears in S. Rep. No. 2239, 81st Cong., 2d Sess. p. 5 (1950).
These reports related to a bill, H.R. 10, which was not enacted. However, the
provisions of H.R. 10 were, with one minor exception, incorporated into § 23 of
the Subversive Activities Control Act of 1950. See the Senate report on the 1950
Act, S. Rep. No. 2369, 81st Cong., 2d Sess. p. 14 (1950). Accordingly, the reports on
H.R. 10 can appropriately be regarded as part of the legislative history of the
1950 Act.
14 It should be noted that the reports' statements concerning the "full discretion" and "untrammeled authority" of the Attorney General with respect to
bond conditions and related matters apply to the period before a final order of
deportation, as well as to the six-month period following such an order.

554

Interim Decision #2256
There are statutory provisions other than section 242 which are
pertinent. Under section 103(a) of the Act, 8 U.S.C. 1103(a), the
Attorney General is given general responsibility over administration and enforcement of the immigration and naturalization laws,
and he is directed to "establish such regulations; prescribe such
forms of bond ... and other papers; ... and perform such other
acts as he deems necessary [to implement such laws]." In Earle
v. United States, 254 F2d 384, 387 (C.A. 2), cert. denied, 358 U.S.
822 (1958), the court relied on section 103(a), as well as upon section
214(a), 8 U.S.C. 1184(a), in upholding the validity of a regulation
calling for use of maintenance-of-status conditions in bonds required for admission of nonimmigrants. 15 The court in Earle went
on to say that, without regard to specific statutory authorization,
such a condition could be required on the basis of the Attorney
General's broad power to regulate the admission of nonimmigrants."
It is generally agreed that a basic purpose of the immigration
laws is to protect against the displacement of workers in the
United States 1 7 Thus, under an approach similar to that used in
Earle, it may be that section 103(a) and the Attorney General's
broad authority to enforce the immigration laws afford an independent basis for requiring of persons subject to deportation
proceedings bonds prohibiting unauthorized employment. Such
bonds are frequent,ly required of nonimmigrant aliens seeking

either admission to the United States or an extension of their
stay." It may be proper to impose a similar requirement upon
aliens who become subject to deportation proceedings. The result
would be a bond serving two related but independent purposes. 19
None of the statutory provisions discussed above has given rise
to a judicial decision dealing specifically with a bond condition of
the kind at issue here. Although the Board cites a number of
judicial precedents in this connection, I find that they relate
mainly to the detention of aliens. Thus, in Carlson AT, Landon, 342
U.S. 524 (1952), the Court, with four Justices dissenting, upheld the

denial of bail to certain aliens who belonged to the Communist
Party, pending determinations of deportability, on the ground that
18 That is, a condition requiring the alien to maintain the status under which
he was admitted as a nonimmigrant.
Section 214(a) relates to conditions in bonds required for the admission of
nonimmigrant aliens.
18 Cf. Illinois Surety Co. v. United States, 229 F. 527, 532 (C.A. 2, 1916).
" See section 101(aX15), 8 U.S.C. 1101(a)(15) and section 212(aX14), 8 U.S.C.
1182(aX14); and 8 CFR 214.1(c).
18 See section 214(a), 8 U.S.C. 1184(a); 8 CFR 214.1(a).
18 Cf. the dissents of Member McConnaughey.

555

Interim Decision #2256
their release could pose threats to national security or public
safety. In Rubenstein v. Brownell, 206 F.2d 449, 456 (D.C. Cir.,
1953), aff'd per curiam by an equally divided court, 346 U.S. 929
(1954), the Court of Appeals stated that detention of the alien (who
was seeking judicial review of an administrative order of deportation) would be improper since there was no indication that he
would abscond or engage in subversive or criminal activity. Another of the cases referred to by the Board, United States v.
Witkovich, 353 U.S. 194 (1957), related to the supervision, under
section 242(d), of an alien who was subject to a deportation order
that had been outstanding for more than six months. The Court
held that the authority of the Attorney General to require information from the alien during the period of supervision was
restricted to matters relating to his availability for deportation 2 0
In my opinion, neither the above cases nor any other judicial
ruling forecloses the possibility of utilizing, on the basis of section
242(a) or (c), a bond condition prohibiting unauthorized employment. Even under the most narrow reading of those provisions,
there are situations in which use of an employment condition
would be proper. For example, there may be cases in which an
alien's past employment would have a direct bearing upon his
availability for hearings or deportation or upon national security.°
At the very least, in such cases, use of an employment condition
would be proper with respect to the six-month period following a
final order of deportation 2s In addition, the various purposes of
the immigration laws, including safeguarding employment opportunities for legal residents, may suggest the appropriateness of
various bond conditions.
I am thus of the view that there is authority in sections 242 and
103 for the Service to require, in some circumstances, a bond
condition prohibiting unauthorized employment. Nevertheless, I
believe for a number of reasons that before a condition of that
nature is imposed, there should be a regulation of the Service
dealing specifically with the subject.23
22

In Witkovich, the Court noted that the period of supervision of an undeport-

able alien might last for the remainder of his life; the

Court distinguished

C orison v. Landon for the reason that it involved detention "during the
customarily brief period pending determination of deportability." 353 U.S. at 201.
21 Apparently, the Service did not contend that such a relationship existed in
this case.
22 In assessing the validity or constitutionality of a restraint placed upon the
activities of an alien subject to deportation proceedings, factors to be considered
include the nature of the activities, the forum making the determination and the
procedures. Sae 70 Hero. L. Rev_ 715 (1957), cited in the liritkovich npininn.
23

The present provisions regarding bond conditions are not sufficiently spe-

556

_aileron .yeeision

IFGGOO

First, it appears that not until recently did the Service attempt
to use in bonds related to deportation proceedings a condition
regarding employment. In my opinion, while this history of nonuse is not determinative of the question of authority, 24 it suggests
the administrative desirability of having a formal basis for the
new practice.
Second, there is the potential problem, acknowledged by the
Service, of undue utilization of such a condition. A regulation
could indicate, at least generally, the circumstances which might
result in imposing an employment condition. Such standards
would provide guidance to Service personnel involved in day-today implementation and would be a safeguard against abuse of
discretion.25 Also, a regulation would provide notice to aliens and
employers. The standards set forth in a regulation might be of use
in affording a basis for decision making in the event of administrative or judicial review.m
Finally, by following the process of proposed rule making, the
Service could obtain the views of interested parties. This would
help to assure proper consideration of the various points of view.
In sum, regarding the basic question of statutory authority, my
view differs from that of the majority of the Board. Still, because
there was no specific regulation in effect, I concur in the result
reached by the Board and do not sustain the employment condition in this case.
The case is returned to the Board for further proceedings
pursuant to 8 CFR 3.1(hX2).
APPENDIX A
Bond Conditions
The pertinent provisions of the bonds, including the condition
regarding unauthorized employment, are as follows:
cific. The provision regarding bonds and related aspects of deportation proceedings, 8 CFR 242.2(a), is general in its terms. Under 8 CFR 103.6(a), any nonstandard rider to a bond must he approved by a regional commissioner, but, in
my opinion, additional substantive safeguards would be appropriate with respect
to the condition at issue here.
24 United States v. E. I. Du Pont de Nomura & Co., 353 U.S. 586 (1957); see also
FTC v. Dean roods, 383 U.S. 597 (1966).
25 Cf. Wong Wing Hang v. Immigration

and Naturalization Service, 360 F.2d
715, 718 (C.A. 2, 1966), where the Court stated:
In the absence of standards in the statute itself, proper administration would be
advanced and reviewing courts would be assisted if the Attorney General or his
delegate, without attempting to be exhaustive in an area inherently insusceptible of such treatment, were to outline certain bases deemed to warrant the
affirmative exercise of discretion and other grounds generally militating against
it... *
26 See footnote 25.

557

itit,erun Lregibani 9F GLoo—ltppenuix.
In consideration of the granting of the application of the above named alien
for release from custody under a warrant of arrest issued by the Attorney
General charging that he is unlawfully in the United States, provided there is
furnished a suitable bond as authorized by Section 242 of the Immigration and
Nationality Act, the obligor hereby furnishes such bond with the following
conditions i.e.: If said alien is released from custody and if said alien does not
accept employment in the United States on or after the effective date of this
bond unless authorized by the Immigration and Nationality Service and if the
above obligor shall cause said alien to be produced or to produce himself to an

immigration officer of the United States upon each and every request of such
officer until deportation proceedings in his case are fmally terminated or until
said alien is actually accepted by such immigration officer for detention or
deportation, then this obligation shall be void; otherwise it shall immediately

become due and payable; Provided, that it is hereby specifically agreed by the
obligor that no order issued by or under the authority of the Attorney General
by virtue of which issuance or execution of an order of deportation is or may
be deferred, or by virtue of which the said alien is or may be permitted to
depart voluntarily from the United States, shall be in any manner construed
to impair or render void this obligation or any part thereof.

APPENDIX B
Section 242(a) of the Immigration and Nationality Act
Section 242(a) of the Act, 8 U.S.C. 1252(a), is as follows:
Pending a determination of deportability in the case of any alien as provided
in subsection (b) of this section, such alien may, upon warrant of the Attorney
General, be arrested and taken into custody. Any such alien taken into
custody may, in the discretion of the Attorney General and pending such final
determination of deportability. (I) be continued in custody; or (2) be released
under bond in the amount of not less than $500 with security approved by the
Attorney General, containing such conditions as the Attorney General may
prescribe; or (3) be released on conditional parole. But such bond or parole,
whether heretofore or hereafter authorized, may be revoked at any time by
the Attorney General, in his discretion, and the alien may be returned to
custody under the warrant which initiated the proceedings against him and
detained until final determination of his deportability. Any court of competent
jurisdiction shall have authority to review or revise any determination of the
Attorney General concerning detention, release on bond, or parole pending
final decision of deportability upon a conclusive showing in habeas corpus
proceedings that the Attorney General is not proceeding with such reasonable
dispatch as may be warranted by the particular facts and circumstances in
the case of any alien to determine deportability.

558