Matter of Nguyen

• Court: U.S. DOJ Board of Immigration Appeals
• Citation: Matter of Nguyen, 15 I&N Dec. 176 (B.I.A. 1975)
• Decision Date: 28 January 1975
• Docket Number: Interim Decision Number 2344,A-20040417
• Parties: MATTER OF NGUYEN In Bond Cancellation Proceedings

15 I&N Dec. 176

MATTER OF NGUYEN

In Bond Cancellation Proceedings

Interim Decision Number 2344

A-20040417

Board of Immigration Appeals.

Decided by Regional Commissioner January 28, 1975

Under 8 CFR 103.6(b)(2), a maintenance of status and departure bond will be canceled if the alien files an application for permanent residence while still in lawful nonimmigrant status, and that application is approved. However, that will not be the case where the permanent residence application is filed after the period of authorized admission as a nonimmigrant has expired. In this case applicant filed an application for permanent residence 27 days after her period of authorized admission as a nonimmigrant had terminated. These 27 days of presence in the United States without Service authorization constituted a substantial violation under the terms of the bond and the decision by the district director to declare it breached, was proper.

ON BEHALF OF OBLIGOR: Allen R. Jackson, Esquire 580 Washington Street San Francisco, California 94111.

This is an appeal from the district director's notice of March 11, 1974, informing the obligor that the conditions of the $2,500 bond posted by him on December 17, 1971 had been violated on January 26, 1973, when the alien failed to depart the United States within the period she had been authorized to remain. In his notice of breach, the district director stated:

The alien was admitted to the United States as a temporary visitor at Honolulu, Hawaii, on January 27, 1972 to July 6, 1972. She was then granted an extension of stay to January 5, 1973 at San Francisco, California. She was then denied a further extension and was accorded to January 25, 1973 in which to voluntarily depart the United States. The subject failed to depart, and on February 22, 1973 filed Application for Status as Permanent Resident, Form I-485, as a nonpreference alien.

The alien violated her status, and thus breached the bond, by remaining in the United States without permission from this Service after January 25, 1973.

The facts are not in dispute. The record substantiates that there was a lapse of 27 days between the expiration of the alien's authorized temporary stay and the date on which she made application for adjustment of status pursuant to Section 245 of the Immigration and Nationality Act. The bond was posted in her behalf on December 17, 1971, at the request of the United States Consular Officer in Saigon, Vietnam, with the conditions of this bond in part as follows In consideration of the granting of the application of the above alien for permission to enter or remain temporarily in the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, provided there is furnished a suitable bond, the obligor hereby furnishes such bond with the following conditions: If said alien is admitted to the United States for a temporary period as a nonimmigrant, or is granted an extension of temporary admission, or is granted a change in nonimmigrant classification, and if said alien shall comply with all the conditions of each specific nonimmigrant status which he is accorded while classified in such status, including the condition that unauthorized employment shall not be accepted, and actually depart from the United States without expense thereto on or before date to which admitted or extended or such subsequent date as may be authorized, in extension of his lawful temporary stay beyond such date, without notice to the obligor, then this obligation shall be void, otherwise it shall become due and payable immediately in the sum of Two Thousand Five Hundred — dollars ($2,500.00) for each alien as to whom there have been a failure to comply with any of the foregoing conditions, provided that in no event shall the liability of the obligor exceed the total sum of Two Thousand Five Hundred — dollars ($2,500.00); and provided further, that no adjustment of the immigration status of said alien shall be construed to impair or diminish this obligation.

On appeal, counsel contends that the period the alien was not in lawful temporary status, from January 25, 1973 until February 22, 1973, does not constitute a "substantial violation" of the terms of the bond within the meaning of 8 CFR 103.6(e). He further contends that the alien has substantially complied with the terms of the bond and that the bond should be canceled.

Counsel quotes liberally from 8 CFR 103.6. The dispute appears to be in the interpretation of "substantial performance" and "substantial violation". 8 CFR 103.6(c)(3) provides that an obligor shall be released from liability where there has been "substantial performance" of all conditions imposed by the terms of the bond. 8 CFR 103.6(e) provides that a bond is breached when there has been a "substantial violation of the stipulated conditions (of the bond)".

The rule of strict performance is relaxed only on substantial performance which is of benefit to the government.

Performance as a condition precedent to cancelation of a maintenance of status and departure bond must be strict performance in accordance with the terms and conditions thereto. However, this rule continues to be relaxed in delivery bonds where there has been a substantial performance which is of benefit to the government, i.e.: where the alien has departed the United States at no expense to the government.

Substantial performance exists where there has been no willful departure from the terms or conditions of the bond, where the conditions have been honestly and faithfully complied with and the only variance from their strict and literal performance consists of technical or unimportant occurrences....