LEON-PEREZ

                                                          Interim Decision #2365



                          MATTER OP LEON—PEREZ
                               In Bond Proceedings
                                    A-19570639

                        Decided 4y Board April 8, 1975
8 CFR 103.6(a)(2) provides, in an appropriate case, for a condition of a bond prohibiting
  unauthorized employment by an alien. The immigration judge denied respondent'S
  request for removal of the employment condition and respondent appealed from that
  denial. The case is remanded, with general guidelines that the record of proceedings
  include among other things: written evidence of the bond condition and the Regional
  Commissioner's approval thereof; evidence of the, mpact and dislocation of American
  workers caused by the alien's employment; if applicable, the numbers of aliens working
  illegally for the particuldr employer; Service records or other specific informations
  showing dates of prior unauthorized employment by the respondent; and opecific information relating to prior orders'of 'deportation against the alien.

ON BEHALF OF RESPONDENT:          J. C. Codias, Esquire
                                  1252 W Peachtree Street, N.W.
                                  Atlanta, Georgia 30309



   In a decision dated February 18, 1975, the immigration judge denied
the respondent's request for removal of the bond condition prohibiting
his unauthorized employment in the United States. The respondent has
appealed from that decision. The record will be remanded to the immigration judge.               " •
   The respondent does not contest the 'amount of his bond. The only
issue on appeal involves the nonemployment rider. Counsel makes various contentions that the imposition of that bond condition violates the
due process clause and other provisions of the Constitution.
   The authority of the Service to impose a bond condition prohibiting
unauthorized employment was at issue in Matter of Toseano -Rivas, 14
I. & N. Dec.'523 (A.G. 1974). In that case, the Attorney General found
that section 242 and section 103 of the Immigration and Nationality Act
gave the Service authority, in some circumstances, to impose a bond
condition prohibiting unauthorized employment. The Attorney General
expressed a concern, however, that there be appropriate substantive
safeguards with respect to the imposition of a condition prohibiting
employment. He stated that "before a condition of that nature is im-
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posed, there should be a regulation of the Service dealing specifically
with the subject" (p. 61). Since there was no such regulation in existence
at the time the bond condition in Toseano-Rivas was imposed, the
Attorney General did not sustain that bond condition.
   The Attorr.ey General mentioned several reasons why a specific regu-'
lation governing nonemployment riders was necessary: (1) in light of the
prior history of nonuse of employment conditions by the Service, a
regulation would provide a formal basis for the new action, (2) the
regulation would provide guidance for Service personnel in imposing
bond conditions and would safeguard against abuse of discretion and
undue utilization of such bonds conditions, (3) the regulation would
provide a standard for administrative and judicial review, (4) the regulation would provide notice of the nonemployment condition to aliens
and employers, and (5) promulgation of the regulation would give the
Service an opportunity to obtain the views of interested parties and
would thereby help to assure the consideration of various points of view.
   In response to the Attorney General's opinion in Matter of ToscanoRivas, the Service has promulgated 8 CFR 103.6(a)(2). 1 This regulation
proVides for prior approval by the Regional Commissioner of any condition barring unauthorized employment, and it sets forth nine factors to
be considered in connection with the imposition of such a condition.
Those factors are considered as examples only and are not exclusive. We
are satisfied .that the regulations set forth in 8 CFR 103.6(a)(2) are in
compliance with the opinion of the. Attorney General in Matter of
Toseano-Rives.
  Since the present case arose after the effective date of 8 CFR
103.6(a)(2), the only remining question is whether that regulation was
 1   8 CFR 103.6(a)(2) provides:
     Bond riders--(i)General. Bond riders shall be prepared on Form I-351 and attached
     to Form Laia. If a condition to be included in a bond is not on Form 1 851, a rider
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     containing the condition shall be executed and forwarded with Form 1-352 to the
     regional commissioner for approval.
         Condition against unauthorised employment. la the discretion of the district
     director and with the prior approVal of the regional commissioner, a condition barring
     unauthorized employment may be included in an appearance and delivery bond in
     connection with a deportation proceeding.
     op. Factors to be considered. Among the factors to be considered in connection with
     the impositim of the bond condition barring unauthorized employment are;
     Safeguarding employment opportunities for United States citizens and legal resident
     aliens; impact on and dislocation of American workers by alien's employment; the
     number of aliens involved in performing the unauthorized employment; prior immigration violations relating to acceptance of unauthorized employment by the alien; the .
     likelihood of continued violations with the same employer; the recentness of the
     alien's arrive: in the United States; the acceitance of the unauthorized employment
     shortly after such arrival; whether there is a reasonable basis for consideration of
     discretionary relief; whether a spouse or chadren are dependent on the alien for
     support, or other equities exist. These factors are intended as examples only and are
     not exclusive.


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properly applied here. In considering this question, we are mindful of
the fact that bond proceedings, by their very nature, demand flexible
procedures in order to prompt determinations may be reached. Consequently, we have always attempted to avoid setting forth rigid procedural or evidentiary requirements which would lessen the ability to
arrive at prompt and equitable bond determinations.
   On the other hand, we cannot ignore the serious concerns expressed
by the Attorney General, and • reflected in the regulations, that the
utmost care be taken in imposing bond conditions prohibiting employ- •
ment: Consequently, we are unable to approve of the type of record
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made below in this case.
   Initially, we note that the record contains no copy of the bond condition involved, nor does 'it contain evidence, other than the trial attorney's oral representation, that the condition has been approved by the
Regional Commissioner aspecifled in 8 CFR 103.6(a)(2)(i) and (ii).
While we would not remand the present case for this reason along, we
believe that it would be highly desirable to have the record contain
extrinsic evidence of the bond condition and the Regional Commissioner's approval. - •
   At the hearing before the immigration judge, the trial attorney discussed the various factors set forth in 8 CFR 103.6(a)(2)(iii). With
respect to safeguarding the employment opportunities of United States
citizens and lawful permanent 'residents, and 'also with respect to the
impace and dislocation of American workers caused by the alien's employment, the trial attorney merely asked the immigration judge to take
notice of the general state of unemployment in the United States. 2 This
does not comply with our reading of -the requirements of 8 CFR 103.6
(a)(2)(iii). The regulation tvidently contemplates that some effort will
be made by the Service to shovfi the employment situation in the particular geographic area involved,' and•what impact the employment of the
alien in question may be expected to have on that situation. Without
intending to limit the inanner.in which 'such impact might be demonstrated, we note that employment information obtained from federal,
state, or local governments would be particularly convincing.
   As to the number of aliens intiilved, the trial attorney alleged that the
respondent's employer, Grief Brothers Company, had a long record of
hiring illegal aliens extending over the previous seven years. The trial
attorney also alleged that over this period as many as 36, and as few as
one, of Grief Brothers' total employinent had been made up of illegal
aliens, and that "[e]very time we go there [Grief Brothers], we have
found illegal aliens." The purpose of the regulations governing employment conditions in bonds is not to punish employers for past action in
   2 we note that counsel maintained that there were no citizens or permanent residents in
  the locality who were -willing to perform the work that the respondent evidently was
  performing.
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hiring illegal aliens, nor is it to punish aliens for the past action of
employers. We construe the regulation's reference to "the number of
aliens involved in performing the unauthorized employment" to relate to
the adverse effect on American labor if the respondent is , was, or is
likely to become one of a large number of aliens performing unauthorized employment within a particular factory or within a particular
industry in a specific geographic location;? If the Service has specific
information concerning the number of aliens found performing unauthorized. employment in a particular factory or industry, it would be
helpful if this information were placed in the record to, the extent
feasible. .
   The regulation also refers to prior immigration violations by a particular alien relating to acceptance of unauthorized employment,' to the
likelihood of continued violations 'by the alien with the same employer
and to the acceptance of unauthorized employment shortly after an
alien's arrival in the United States. The trial attorney stated that on two
prior occasions the respondent had been apprehended working for the
same employer. The trial attorney argued that this demonstrated a
pattern of illegal employment with the same employer and a likelihood
of continuing illegal employment. Although counsel apparently does not
dispute the,trial attorney's contentions, the present record should, to
the extent possible, contain copies of Service records or other specific
information showing prior unauthorized employment by this respondent
with particular reference to the date of such employment. It would also
be appropriate to have the record contain specific information relating to
prior orders of deportation entered against the respondent, since this
might have a bearing on apparent eligibility for discretionary relief from
deportation, another of the factors listed in 8 CFR 103.6(a)(2)(iii).
   Finally, t:le trial attorney stated that the respondent had no dependents residing in this country and that there were no equities or other
factors to consider in the respondent's case. While conceding that the
respondent's dependents reside in Mexico, counsel has raised a claim of
hardship to the respondent based on the facts of this ease. Counsel
points out that the respondent is presently also under a $2,000 delivery
bond on a criminal charge.. Since -the criminal charge is apparently not
scheduled for determination in the immediate future, and since the
Government evidently does not intend to proceed with deportation
proceedings until the criminal charges are determined, counsel contends
that the respondent will be placed in an untenable position. He will have
to choose between violating the employment condition of his immigration bond in order to maintain himself, seeking social assistance, or
3 In.Matter of roscano-Rivas, the Attorney General emphasized that "a basic purpose

of the immigration laws is to protect against the displacement of workers in the United
States" (p. 58) : The specific fact situation at issue in Toscana Rivas was a "flagrant
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violation of the immigration laws" by a group of at least ten illegal aliens.

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absconding and returning to Mexico, thereby forfeiting the bonds in
both the criminal and deportation cases. We believe that counsel's
contention should have received greater consideration from the immigration judge.
   The foregoing comments are designed to deal with the present case
and are not necessarily applicable to bond determinations not involving
a condition barring employment. No attempt has been made to lay down
inflexible rules governing the information to be placed in the record
when a nonemployment condition is in issue. However, in a case of this
type the record should facilitate prompt and fair review on both administrative and judicial levels. The record will be remanded to the
immigration judge for reconsideration in light of the preceding comments.
   ORDER: The record is remanded to the immigration judge for reconsideration and further proceedings consistent with the above opinion.




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