CHEW

Interim Decision #2910




                                 MATTER OF CHEW
           In Bond Proceedings Pursuant to 8 C.F. R. 242.2(b)
                                     A-22683002
                            Decided by Boaid July 1, 1982

 An alien may apply to the District Director for modification of the conditions of his
 custody status after the immigration judge has been divested ofjurisdiction by the lapse
 of seven days following. the alien's release from custody or by the entry of a final
 administrative order of deportation, regardless of whether the immigration judge has
 previously made a custody determination in his case; accordingly, Matter of Vea. 18
 l&N Dec. 171 (BIA 1981), is amended insofar as it indicates that an appeal to the
 Board is an alien's sole and exclusive recourse from a custody determination of an
 immigration judge.
ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
 James Hallman, Require                               George A. Rayner
 30 West Washington                                    Assistant District'
  Chicago, Illinois 60602                              Director'
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca,Board Members



   The respondent appeals from the imposition of a bond condition barring him from engaging in unauthorized employment. The appeal will be
dismissed.
   The record reflects that the respondent was apprehended on December 2, 1981, pursuant to an Order to Show Cause which set bond at
$2,500 and imposed as a condition of that bond a prohibition against
unauthorized employment. The respondent requested modification of
the conditions of his custody status. On December 4, 1981, an immigration judge reduced the amount of bond initially set by the District Director to $1,000 but left in effect the nonemployment rider. That same day,
the respondent was released from custody upon posting bond; no appeal
was taken from the immigration judge's determination.
   On January 14, 1982, the respondent applied to the District Director
for further amelioration of the conditions•of his release, seeking cancellation of the no-work rider. The District Director denied the respondent's
request on its merits on February 5, 1982, and the respondent filed the
appeal presently before us.
   A threshold jurisdictional issue is presented. In our recent decision in

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Matter of Yea, 

 (BIA 1981), we stated in dictum that
 once an application for modification of custody status has been properly
 considered by an immigration judge,
      the respondent's recourse thereafter lay in an appeal to the Board from the immigra
   tion judge's determination and mot, 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.. (Emphasis added.)'
     The question whether the District Director has authority to consider
  a request for change in custody status after an immigration judge has
  acted .upon such request is now squarely before us. Upon further
  deliberation, we conclude that the District Director has jurisdiction
  over the application and we therefore retreat from the dictum in Matter
  of Vea, cited above.
     As noted in Vea, the regulations give an alien the right to apply to an
  Munigration judge for modification of the conditions of his release at any
  time after an initial custody determination has been made by the District Director and before an order of deportation becomes administra,
  tively final If the alien has been released from custody, however, he
               -


  must apply to the immigration judge within seven days from the date of
  release; thereafter, his application can only be considered by the District Director. See also Matter of Sio, 

 (BIA 1981).
     We further noted that an alien may appeal to the Board from a custody determination' of an immigration judge within five days after written notification of such determination is served on him. Insofar as we
  indicated in Vea that an appeal to the Board is the alien's sole and
  exclusive recourse from a custody determination of an immigration judge,
  we •erewith amend that decision. We find nothing in the regulations
  that would preclude an alien from reapplying to the District Director for
  modification of‘the conditions of his custody status after the immigration
 judge hag been divested of jurisdiction by the lapse of seven days follow-
- ing the alien's release from custody or by the entry of a. final administrative order of deportation. Whether or not the immigration judge has
  previously made a custody determination in his case is, in our opinion,
  irrelevant.z We accordingly conclude that the District Director had jurisdiction to entertain the respondent's application for amelioration.
     We now turn to the merits of the respondent's request for cancellation
  of the nonernployment rider. The Code of Federal Regulations, 8 C.F.R.
  103.6(a)(2), sets forth a number of factors to be considered in determining whether a nonemployment rider ought to be imposed as a condition
 of bond. A principal concern manifest in the regulation is the impact of

   I In Manor of Veil, supra, the District Director's determination was not before ns

   2 The District Director may, of course, deny the application for failure on the part of the
 alien to show changed circumstances.


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the alien's employment upon the American labor market. Matter of yea,
supra. Other considerations specifically mentioned are the existence of
prior immigration law violations relating to unauthorized employment
and the likelihood of continued violations with the same employer, the
number of aliens involved in performing the unauthorized employment,
the recentness of the alien's arrival in the United States and the time
lapse between arrival and commencement of employment, the prospectsfor a grant of discretionary relief from deportation, and the presence or
absence of a spouse or children dependent upon the alien for support.
See 8 C.F.R. 103.6(a)(2)(1). 3 See generally Matter of Leon-Perez, 

 (BIA 1975).
   The record reflects that the respondent, a native and citizen of
 Guatemala, is married but separated from his United States citizen wife
 and has a citizen child. He entered this country without inspection in
 August 1979 and immediately returned to his current employer for whom
 he had worked as a machinist without Immigration and Naturalization
 Service permission since September 1976. He was arrested by the Service in February 1981 and released after posting bond conditioned upon
 his refraining from engaging in unauthorized employment. He returned
 to work the day after his release, thereby breaching that bond. The
 espondent was subsequently found deportable but was granted the
privilege of voluntary departure in lieu of deportation. He departed the
United States under the grant of voluntary departure but returned to
this country in April 1981, apparently again evading inspection by immigration authorities. Upon his return, the respondent resumed his unauthorized employment with his longtime employer and remained so
employed to the time of his arrest by the Service in December 1981.
  A memorandum to file prepared by the Service indicates that the
Illinois Employment Office has advised that there is no shortage of
applicants for the position occupied by the respondent and that due to
current labor conditions, qualified applicants can immediately be referred
for the job. The memorandum further states that the respondent has no

  3 8 C.F.R. 103.6(a)(2) provides:
 . (iii) Factors to be considered. Among the factors to be considered in connection with the
  imposition 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 arrival in the United States;
   the acceptance of the unauthorized employment shortly after such arrival; whether
  there is a reszonable basis for consideration of discretionary relief; whether a spouse or
  children 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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immediate family dependent upof him for support, that he does not
qnalify for discretionary relief from deportation, and that numerous
aliens work at his place of employment.'
   In denying the respondent's request for removal of the no-work rider,
the District Director noted that the respondent does. not support his
United States citizen child, an observation not refuted by the.respondent.
The.District Director alsb noted that an asylum application submitted
by the respondent has been reviewed and appears to have been filed
solely for the purpose of prolonging his stay in the United States. 5
   We conclude, as did the immigration judge and the District Director,
that the imposition of the bond condition against unauthorized employment is apptopriate in this case. It has specifically been determined that
the'respondent's employment has an adverse impact on employment
opportunities for United States citizens and lawful permanent resident
aliens. His history of immigration law violations, both with respect to
unauthorized employment and otherwise, is a matter of record. He does
not appeaar to be eligible for any form of relief from deportation that
would permit him to remain in this country permanently or for an
extended period of time. Finally, the fruits of hii continued unauthorized employment would not benefit his United States citizen wife or
child. For the foregoing reasons, we shall permit the nonemployment
rider to stand.
   ORDER The bond condition against unauthorized employment is
permitted to stand.




   4 The memorandum does not, however, indicate whether any or all of such aliens are in
this country unlawfully.
     The respondent cites the deteriorating political climate in Guatemala as the basis of his
claimed fear of persecution. However, there is no indication in the record that he personally will be singled out for persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion if deported to that country. See 8
C. F. R. 208.5.

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