A-1940230.(56020/373)
Decided by Central Office December 5, 1949
Bond — Delivery bond in explusion proceedings, breached for failure to surrender upon demand — Where service of a demand to surrender made impossible by alien.
Where an alien was released under bond while under expulsion proceedings, on the condition that he surrender himself when a demand was made therefor, and no evidence was presented that he departed from the United States, such delivery bond may be declared breached (where two registered communications were addressed to him at his last known addresses, inquiry of his whereabouts proved of no avail, and the demands to surrender were returned to this Service undelivered), inasmuch as he had by his own actions made a demand upon him impossible.
BEFORE THE CENTRAL OFFICE
Discussion: On October 19, 1939, a $500 delivery bond was executed and filed by subject, a native of India, in order that he might go at large pending conclusion of instituted expulsion proceedings.
On March 3, 1941, subject's case was considered by the Board of Immigration Appeals and it was ordered that he be deported to India on the ground that at the time of his entry into the United States he was not in possession of an unexpired immigration visa. It was further ordered at that time that he be permitted to depart under the warrant to any country of his choice within 90 days. At that time he claimed to be the spouse of a native-born citizen of the United States, who was partially dependent upon him for her support and for the support of her child; he claimed to have lived in the United States since 1921, although he had stated in the preliminary statement that he first entered the United States in 1925; and he was not eligible for suspension of deportation in view of his race.
No evidence has been presented that the alien has departed from the United States. On February 25, 1949, and again on February 28, 1949, communications were sent to him by registered mail making a formal demand that he surrender for deportation and informing him that if he did not surrender appropriate action would be taken with a view to breaching the bond furnished. These communications were returned undelivered, the first as "unclaimed" and the second as "moved, left no address." Prior thereto effort had also been made to communicate with the alien through his attorney, through the Indian Navy Club, and through the British consulate, none of which could furnish any information as to his whereabouts. He did not surrender for deportation.
The demand to surrender in this case was not received by the alien.
However, the notice to him to surrender was directed to him at the address furnished at the time that he posted the bond, and a notice was also sent to another address concerning which the Service had information. The demand was not delivered to the alien because he had made its delivery impossible by removing himself from the addresses furnished, and by failing to keep the Service informed regarding his whereabouts. Under the circumstances, as he has by his own action made a demand upon him impossible, a demand is not necessary and the bond may be breached on the present record ( Pay v. Shanks, 56 Ind. 554; Schnier v. Fay, 12 Kan. 184).
Recommendation: It is recommended that the outstanding delivery bond be declared breached and that appropriate steps be taken looking to collection thereunder.
So ordered.