Employment riders were first applied to appearance and delivery bonds in the early 1970s, and the Board twice divided over their legality. Matter of Toscano-Rivas, 14 I N 523, Int.Dec. # 2256 (1973). Detention was not considered a permissible response to unauthorized employment: the INS had "emphatically disavow[ed] any general service policy of rearresting the recalcitrant alien who violate[d] the condition once released.
That is, the regulation does not impose a condition upon plaintiffs which restricts their activities after release; instead, it bars such release in the first place. See Matter of Toscano-Rivas, 14 I N Dec. 523, 527 (B.I.A. 1972), on reconsideration, 14 I N Dec. 538, 539-41 (B.I.A. 1973), aff'd on other grounds, 14 I N Dec. 550, 555 (A.G. 1974) ( Toscano-Rivas) (distinguishing between detention and bond release conditions). Thus, in contrast to the regulation analyzed in National Center, the regulation at issue in this case derives primarily from the Attorney General's detention power rather than from his power to prescribe bond conditions.
The Attorney General, in his interpretation of his authority under the Act, has recognized the need for individualized determinations rather than the imposition of a blanket condition. Matter of Toscano-Rivas, et al., 14 I N Dec. 523 (1974). Earlier regulations and INS case law have required individualized determinations before the inclusion of a no-work condition in the bond.
Id. The INS relied on the Attorney General's broad interpretation of his authority in this matter in Matter of Toscano-Rivas, 14 I. & N.Dec. 550, 555 (A.G.1974), in support of this proposition. This Court does not find Toscano persuasive, especially in light of the ambivalent language which permeates that case.