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 F.2d 373 (C.A. 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 not 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 permit

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(h)(1)(ii), 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)(1)(i) and (iii). I feel duty-bound to urge respectfully that that be done.

The Service appeal should have been sustained.

Marianne B. McConnaughey, 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

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 3.1(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 242.2(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.

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(a)(1) and (2) 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 does not 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

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