A-6738868
Decided by Central Office March 10, 1950
Bond — Delivery bond, upon release in expulsion proceedings — When breached — Where demand for delivery made on surety after alien's departure from United States — Administrative discretion.
Where an alien was released from the custody of the immigration authorities on the posting of a delivery bond, conditioned upon the alien's surrender to the immigration authorities when demanded in connection with deportation proceedings, the delivery bond may be considered breached when the alien was not surrendered upon demand of the surety even though such demand was made after the alien had departed from the country; and where the circumstances are such as do not justify favorable administrative discretion, such bond will be declared breached.
BEFORE THE CENTRAL OFFICE
Discussion: On May 16, 1949, a warrant was issued for the arrest of the alien on the charges that at the time of entry during March 1948 he was not in possession of an immigration visa; that he did not present an unexpired passport; that he admitted committing a crime involving moral turpitude prior to entry, to wit: Forgery; and that he had been convicted of a crime involving moral turpitude prior to entry, to wit: Forgery. On June 7, 1949, he was released from custody by the Miami office of this Service when a delivery bond in the sum of $1,000 was posted in his behalf. On June 20, 1949, his presence in Canada was verified when he presented himself at the Toronto, Ontario, Canada, office of this Service. On August 5, 1949, demand was made on the surety that the alien be delivered into the custody of the Miami office within 10 days after receipt of notification for a hearing. The surety advised that as the alien was in Canada it was not possible to comply with the demand. By not surrendering the alien, the conditions of the bond were violated.
In transmitting the case to the Central Office for determination as to whether the bond should be declared breached, the office of the District Director at Miami, Fla., states: "Since proper demand was not made on surety until after alien had departed for Canada, it would appear that the bond should be canceled ( Matter of L---- de S---- A----, C.O. File A-7621680, August 17, 1949; Matter of J---- C---- R---- S---- de S---- A----, C.O. File A-9554762, August 17, 1949)."
Although the delivery bonds were canceled in the cases cited by the Field Office, that action was purely in exercise of administrative discretion. From a legal standpoint, the conditions of those bonds were violated when the aliens were not surrendered in accordance with demands, and they might have properly been declared breached. Opinion of General Counsel in Matter of V---- G----, A-2890631, August 3, 1948. However, the instant case is not one in which the exercise of favorable administrative discretion is merited.
The record shows that on August 8, 1947, the alien had previously been made the subject of deportation proceedings, was released under a $1,000 delivery bond on August 25, 1947, and shortly thereafter departed to Canada. The bond exacted was canceled.
This, then, is the second time that by leaving the country, the alien has managed to avoid a final determination in a deportation proceedings instituted against him. In addition, he has a criminal record which renders the matter more aggravated. The bond will, therefore, be declared breached.
Recommendation: It is recommended that the outstanding delivery bond be declared breached and that appropriate steps be taken looking toward the collection of the liquidated damages thereunder.
So ordered.