VEA

                                                               Interim Decision #2890




                                    MATTER OF VEA

                                 In Bond Proceedings

                                       A-21314945

                      Decided by Board November 4, 1981

(1) After an initial custody determination has been made by a District Director or other
   specified officer of the Immigration and Naturalization Service authorized to issue a
   warrant of arrest, an alien may apply to the foregoing officials for release or amelioration
   of the conditions of release. 8 C.F.R. 242.2(a).
(2) Once service of a warrant of arrest or determination of any application pertaining
  thereto has been made by a District Director or other specified Service officer, the alien
   may apply to an immigration judge for change In custody status at any tune before a
   deportation order becomes administratively final, but if an alien is released from custody,
   such application must be made to an immigration judge within 7 days from the date of
   release; thereafter, the application can only be made to a District Director. 8 C.F.R.
  242.2(a) and (b).
(3) Direct appeal to the Board of Immigration Appeals from a custody determination of a
  District Director or other-designated Service officer is authorized only after a deportation
  order becOmes administratively final or where recourse to an immigration judge is no
  longer available because of the expiration of the 7-day period. 8 C.F. R. 242.2(a) and (b).
(4) Where the respondent was still in detention at the time he -applied for a change in
  custody status anti no final order of deportation had yet been entered in his case, his
  application was properly considered by an immigration lodge; his recourse thereafter
  lay in an appeal to the Board, filed within 5 days of the date written notification of the
  immigration judge's determination is served upon•the parties, and not in a request for
  amelioration to a District Director. 8 C.F.R. 242.2(13).
ON BEHALF OF RESPONDENT: William F. Thompson, III, Esquire
                                 LEZI Kapiolani Boulevard
                                 Penthouse Suite
                                 Honolulu. Hawaii 96814
By: Milhollan, Chairman; Maniatis, Maguire, Morris. and Vacca, Board Members




  In a decision dated August 26, 1981, an immigrationjudge reduced
from $2,500 to $2,000 the amount of bond initially set by the District
Director but left in effect a condition of that bond which bars the respondent from engaging in unauthorized employment.' On October 6, 1981,

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


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Interim Decision #2890
the respondent, who was released from Service custody on August 27,
1981, upon posting bond, filed a notice of appeal to the Board, seeking
further amelioration of the conditions of his custody status through
release on his own recognizance and cancellation of the "no work" rider.
   The respondent is a 27-year-old native and citizen of Tonga who was
admitted to the United States in November 1980 as a nonimmigrant
visitor for pleasure. Ile admittedly remained longer than authorized and
at a deportation hearing conducted on September 16, 1981, was found
deportable as an overstayed nonimmigrant on the basis of his concessions.
The immigration judge granted the respondent voluntary departure to
January 16, 1982, with an alternative order of deportation to Tonga in
the event he fails to voluntarily depart by that date. The respondent
waived his right to an appeal from that decision.
   On September 16, 1981, the day the immigration judge rendered his
decision on deportability, the respondent through counsel directed a
letter to the District Director requesting amelioration of the conditions
of the appearance bond outstanding against him. Two days later, the
District Director, noting that the iininigration judge had already acted
on the respondent's bond redetermination request on August 26, 1981,
responded that any appeal from the immigration judge's determination
must be filed with the Board pursuant to 8 C.F.R. 242.2(b). The respondent thereupon sought a redetermination hearing before the immigra,
tion judge. In a decision dated September 25, 1981, the immigration
judge concluded that he lacked jurisdiction to consider the respondent's
request for a change in custody status, basing his conclusion on the
following provision within 8 C.F.R. 242.2(b):
     . if the respondent has been released from custody, such application [for amelioration
  of the conditions under which he may be released] must be made [to an immigration
  judge) within seven days after the date of such release. Thereafter, application by a
  released respondent for modification of the terms of release may be made only to the
  District Director.
  As more than 7 days had elapsed since the respondent's release from
custody, the immigration judge determined that any request for modification of the terms of release must be made to the District Director with
direct appeal to the Board. We conclude that that immigration judge,
like the District Director, lacked authority to consider the respondent's
request for change in custody status made after his deportation hearing
but we do not adopt the rationale relied upon by the immigration judge.
  In accordance with the procedures set forth in 8 C.F.R. 242.2, after
an initial determination with respect to custody has been made by the
the respondent and the Service as required by 8 C.F.R. 242.2(b), the regulation governing
the apprehension, custody and detention of aliens. It does not appear, however, that his
determination was accompanied by a memorandum setting forth the reasons for the
decision as required by the foregoing regulation.

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District Director or other Service officer authorized to issue a warrant
of arrest, an alien may apply to the District Director or such other
designated officer for release or amelioration of the conditions of his
release. 8 C.F.R. 242.2(a). Once service of a warrant of arrest or determination of any application pertaining thereto has been made by the
District Director or specified Service officer, the alien may either apply
to an immigration judge for releake or modification of the terms of his
custody status or may appeal directly to the Board, depending upon the
circumstances of his case. 8 C.F.R. 242.2(a) and (b).
   Application to an immigration judge is authorized after an initial determination has been made and at anytime before a deportation order
becomes administratively final. If, however, an alien is released from
custody, application for change in custody status must be made to the
immigration judge within 7 days from the date of release; thereafter,
such application can only be entertained by the District Director. 8
C.F.R. 242.2(b). Direct appeal to the Board from a determination of the
District Director or other designated officer is authorized only after a
deportation order becomes administratively final or where recourse to
the immigration judge is no longer available because of the expiration of
the 7-day period.2 8 C.F.R. 242.2(a) and (b).
   The "7-day rule," then, is jurisdictional, describing a circumstance
under which the immigration judge is divested of power to adjudicate an
application for change in custody status. However, as the respondent in
 the present case was still in detention on August 26, 1981, the date he
 applied for a modification of the terms of his release, and as no final
 administrative order of deportation had yet been entered in his case, his
'application was properly considered by the immigration judge who, as
 noted earlier, did reduce the amount of bond initially set. Under the
regulations, the respondent's recourse thereafter lay in an appeal to the
 Board from the immigration judge's determination and not, as the immigration judge indicated, in a request for amelioration to the District
 Director with a right of appeal to the Board from that official's
 determination.
   The respondent's appeal to the Board, filed on October 6, 1981, is
jurisdictionally defective for lack of timeliness. Subsection (b) of 8 C.F.R.
242.2 requires that an appeal to the Board from a custody determination
by an immigration judge be filed within 5 days of the date written
notification of that determination is served upon the respondent and the
Service. The parties were duly notified of the immigration judge's decision on August 26, 1981.3 We have decided, however, to assume jurisdic-
  2 No appeal, however, shall be allowed when the Service notifies the alien that it is
ready to execute the order of deportation and takes him into custody for that purpose. See
generally Matter of Tsoi, 14 I&N Dee. 205 (BIA 1972).
  3 Our authority to review extends to the immigration judge's decision of August 26,




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Interim Decision #2890
tion over the case by certification as provided in 8 C.F.R. 3.1(c). Turning to the merits of the case, the relief sought by the respondent will be
granted.
   The respondent, who allegedly began working as a fisherman shortly
after his arrival in this country, is the beneficiary of an approved visa
petition, according him -sixth-preference status as a fisherman, with a
priority date of March 18, 1977. A visa number is currently available to
the respondent and counsel advises that the respondent's application for
an immigrant visa is presently being processed at the United States
Embassy in Suva. The respondent has a wife and two children in Tonga.
  As a general rule, an alien should not be detained or required to post
bond in connection with deportation proceedings unless there is a finding that he is a threat to national security or a poor bail risk. See
generally Matter of Patel, 

 (BIA 1976). The Service does
not allege that the respondent poses a threat to the security of this
country and the record does not support a conclusion that bond is required
to prevent the respondent from absconding.
  The respondent is now in the process of applying for an immigrant
visa at a United States Embassy abroad. There is no suggestion in the
record that he is inadmissible under any of the qualitative grounds for
exclusion enumerated in section 212(a) of the Immigration and Nationality Act, 8 U:S.C. 1182(a), or is otherwise not entitled to the visa. We
consider it highly unlikely that the respondent would jeopardize his
chances of gaining readmission to the United States as a permanent
resident by failing to depart under the grant of voluntary departure
accorded him, thereby rendering himself excludable under section
212(0(1'7) of the Act as an alien who has been deported. We conclude
that the imposition of bond is not warranted under the circumstances of
this case.'
  We likewise conclude that the imposition of a nonemployment rider is
inappropriate in this case. In Matter of Toscano-Rivas, 

BIA 1972 and 1973; A.G. 1974), the Attorney General, while finding
that the Service had the authority in a proper case to impose a bond
condition prohibiting unauthorized employment, expressed concern that
there be appropriate substantive safeguards with respect to the imposition of such _condition. Promulgation of 8 C.F.R. 102.6(a)(2), which,
inter olio, sets forth a number of factors to be considered in determining, whether a nonemployment rider ought to be imposed, followed in
mil, which addresses the merits of the respondent's application for change in custody
status and not, as counsel suggests in the notice of appeal, to the immigration judge's
September 25, 1981, decision disclaiming•his own jurisdiction over the matter. 8 C.F.R.
242.20).
  4 We do not believe the only relevant adverse matter reflected in the record file, the
respondent's failure to depart under a pre hearing grant of voluntary departure, provides
                                         -


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

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response to the Attorney General's opinion_ A principal concern, manifest in the regulation, is the impact of the alien's employment upon the
American labor market. See 8 C.F.R. 103.6(a)(2)(i). See generally Matter of Leon-Perez, 

 (BIA 1975).
  That concern appears unfounded in the respondent's case. In issuing
the respondent a labor certification, a precondition to the filing of his
sixth preference visa petition (see 8 C.F.R. 204.1(c)(1)), the Secretary
     -


 of Labor specifically determined that his employment is not detriinental
 to the United States labor market. We are satisfied that the imposition
 of a nonemployment rider is not otherwise justified on the facts of this
 case. The bond condition against unauthorized employment imposed by
 the District Director and left in effect by the immigration judge will
 accordingly be cancelled.
   ORDER The immigration judge's custody determination is reversed.
    FURTHER ORDER The respondent's request for release on
 his own recognizance is granted.
    FURTHER ORDER: The bond condition against unauthorized
.employment is cancelled.