RECZYNSKI

Interim Decision #2477




                            MATTER OF RECZYNSKI

                               In Bond Proceedings

                                    A-20919696

                       Decided by Board March 3, 1976
(1) While an immigration judge is empowered pursuant to 8 CFR 242.2(b) to redetermine
   the amount of, or a condition of, a bond subsequent to its imposition by a district
  director and before a deportation order becomes administratively final, there is no
  independent basis in the regulations authorizing an immigration judge to determine
  whether there has been a breach of bond. A district director, who is authorized to
  declare a bond breached (8 CFR 103.6(e)), is the one who should do so.
(2) Where, on the basis of information presented at the hearing before an immigration
  judge in connection with request for bond redetermination under 8 CFR 242.2(b), there
  is reason to believe, as in the instant case, there may have been a breach of a bond
  condition, the procedure to be followed is adjournment of the hearing to allow the
  district director to determine whether or not the bond should be declared breached. If
  declared breadied, the redetermination hearing then becomes moot.
ON BEHALF OF RESPONDENT: Nathan T. Notkin, Esquire
                        11 South LaSalle Street
                        Chicago, lilinois 60603


  This is an appeal from a determination of an immigration judge, dated
September 2E, 1975, denying the respondent's request for a change in
his custody status. The record will be remanded.
   The respondent is a single male alien who is a native and citizen of
Poland. On February 5, 1975, an order to show cause and warrant of
arrest were issued. The order to show cause alleges that the respondent
entered the United States as a nonimmigrant visitor and has remained
in the United States for a period longer than authorized. The respondent was released from custody under bond in the amount of $1,500. A
rider attached to the bond prohibited the respondent from being employed without permission of the Immigration and Naturalization Service. The respondent does not contest the amount of the bond, but only
the imposition of the non-employment rider. The request for the bond
redetermination hearing was not formally made until September 26,
1975. At the Ime of the request, the deportation hearing had not yet
been held.
   In his memorandum of decision of support of his determination, the
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immigration judge stated that, on the morning of the hearing, the trial
attorney orally informed him that the Service had learned that the
respondent had been employed, in apparent violation of the non-employment condition of the bond. The immigration judge stated that
he questioned the respondent and that the respondent admitted that he
had been employed. The immigration judge concluded that the respondent had breached the condition of the bond and that because of the
breach he accordingly lacked jurisdiction to determine the issue. There
is nothing in the record to indicate the district director declsred the
bond breached. On appeal, the respondent contends that a breach does
not occur absent such a declaration.
  A condition against unauthorized employment is provided for in 8
CFR 103.6(a)(2). See Matter of Leon-Perez, 

 (BIA
1975). See generally Matter of Toscano-Rivas, 

 (BIA
1972, 1973; A.G. 1974). A bond is breached when there has been a
"substantial violation of the stipulated conditions." 8 CFR 103.6(e).
  However, this regulation also provides:
     The district director having custody of the Sle containing the immigration bond
  executed on Form 1-352 shalt determine whether the bond shall be declared breached or
  cancelled, and shall notify the obligor on Form 1-323 or Form 1-391 of the decision, and,
  if declared breached of the reasons therefor and of the right to appeal in accordance with
  the provisions of this part. (Emphasis supplied.)
It is apparently this provision on which the respondent relies in contending that there could have been no breach absent a declaration by the
district director.
   Under 8 CFR 242.2(b), an immigration judge is empowered to redetermine the amount of, or a condition of, a bond subsequent to its
imposition by a district director and prior to an order of deportation
being entered.' However, there is no independent basis in the regulations giving an immigration judge the authority to pass on whether or
not there has been a breach of the bond. Resolution of such a factual
issue could precipitate a lengthy bond determination hearing. The district director, who is authorized to declare a bond breached, is the one
who should do so.
   Once there has been a breach, and a declaration of such by the district
director, there is little reason for an immigration judge to redetermine
the bond condition. To hold otherwise would permit an alien under bond
to violate the bond conditions with the knowledge that if he is discovered, he could then challenge the imposition of the condition. An alien
    As amended effective November 28, 1975, 8 CFR 242.2(b) now provides that when an
alien has posted the bond and has been released from custody, the immigration judge may
make a redetermination only if the request is made within seven days of release. After
that seven-day period, requests for modification of conditions of the bond are made to the
district director. See 

 (October 29, 1975).
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under a band condition can adequately protect his rights by making a
prompt request for a redetermination either shortly after the condition
is imposed or at such time as he believes conditions may have changed
sufficiently to warrant a request.
   On the ba sic of the information presented at the hearing, there was
reason to believe there may have been a breach of the bond condition.
Under these circumstances, the procedure to be employed is to adjourn
the hearing to allow the district director to determine whether or not
the bond should be declared breached. lilt were declared breached, the
redetermination hearing would then become moot. We shall remand the
record to the immigration judge for this procedure to be employed.
  ORDER: The record is remanded to the immigration judge for further
proceedings consistent with this opinion and the entry of a new decision.




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