UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: June 11, 1973.
KAZI S. AHMED, PLAINTIFF-APPELLANT,
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE
Clark, Associate Justice,*fn* and Waterman and Feinberg, Circuit Judges.
WATERMAN, Circuit Judge:
Plaintiff-appellant commenced the within action pursuant to 28 U.S.C. § 1346(a)(2) demanding that the Government return to him United States Treasury Bonds in the sum of $2,000 or pay him the equivalent in cash. The facts are undisputed and, upon cross-motions for summary judgment, the court below denied plaintiff's motion and granted that of the Government. From the order filed thereon plaintiff appeals. We affirm.
In October, 1969 plaintiff's nephew Islam first applied to the American Consulate in Dacca, Pakistan, for permission to travel to the United States as a student. At that time he was advised of the appropriate procedures and he was informed that, pursuant to regulations established by the Attorney General under Section 214 of the Immigration and Nationality Act (Act) (8 U.S.C. § 1184 (a))*fn1 he would be required to post a $2,000 Maintenance of Status and Departure Bond to insure that he would comply with the conditions of his entry to the United States. One of the conditions stated in the Bond, a condition designed, of course, to preserve American jobs for bona fide members of the American labor force, was that, being admitted as a foreign student, during Islam's stay in the United States as a student, Islam would not accept "unauthorized employment," that is, employment that had not received prior approval from the Service.*fn2
On November 6, 1969 the plaintiff, Islam's uncle, appeared at the New York City office of the Service and executed the required bond on Islam's behalf. Thereafter, on January 13, 1970, Islam was admitted to the United States as a non-immigrant student within the meaning of Section 101(a)(15)(F)(i) of the Act (8 U.S.C. § 1101(a)(15)(F)(i)); and he was authorized to remain here as a student for a one year period, or until January 12, 1971. On May 12, 1970, approximately four months after his arrival, Islam married Ranette Scott, an American citizen. On June 1 she filed on Islam's behalf a petition to have him classified as an immediate relative of a United States citizen within the meaning of Section 201(b) of the Act (8 U.S.C. § 1151(b)).*fn3 Thereafter, on October 26, 1970, after being notified on October 7, 1970 that this petition for immediate relative classification was approved, Islam applied, under Section 245 of the Act (8 U.S.C. § 1255), for an adjustment of his non-immigrant student status to that of a permanent resident. This application was granted by the Service on December 29, 1970.
In July 1970, after Islam's wife had filed the petition for his classification as an immediate relative of a United States citizen, but before this petition was granted by the Service, Islam began to work at plaintiff's restaurant. Islam had never requested and had never received any prior authorization from the Service permitting him to work. Plaintiff concedes that when he employed Islam during the pendency of Ranette's petition a material condition of the Maintenance of Status and Departure Bond was violated; but inasmuch as Islam could have worked after his own application for permanent residency was filed on October 26, 1970 without Service authorization being first obtained*fn4 plaintiff maintains that the fact that Islam began work in July is a "technical" rather than a "substantial"*fn5 violation of the condition prohibiting employment of the "student." Therefore he claims this breach cannot be relied on as a justification for declaring that the bond be forfeited and the collateral put up to secure it retained.
We agree with the plaintiff that under the regulations promulgated by the Attorney General pursuant to his authority under Section 103(a) and 214 of the Act (8 U.S.C. §§ 1103(a) and 1184(a)) a Maintenance of Status and Departure Bond may be declared forfeited by the Service only after the finding has been made that a material condition of the Bond has been violated in a substantial particular. See 8 C.F.R. §§ 103.6(c)(3) and 103.6(e). Such a finding was made by the Service and plaintiff exhausted his administrative remedies prior to commencing his action in the district court.*fn6 The court below agreed with the Service and we agree with the lower court that the Maintenance of Status and Departure Bond was violated in a substantial way when Islam accepted employment in the obligor-plaintiff's restaurant without first having obtained Service approval. All the cases establish this principle. See Earle v. United States, 254 F.2d 384 (2 Cir.), cert. denied, 358 U.S. 822, 79 S. Ct. 35, 3 L. Ed. 2d 63 (1958); Watzek v. United States, 134 F. Supp. 605 (S.D.N.Y.1955); Kavounas v. United States, 89 F. Supp. 689, 116 Ct.Cl. 406 (1950). In each of these cases the Bond was forfeited because the alien accepted unauthorized employment.
Irrelevantly, plaintiff seeks to avoid his own liability by pointing out that, when Islam married, Islam became responsible for the support of his wife, and that this responsibility necessarily entailed the finding of employment and excused Islam's act of working and plaintiff's act of hiring him.
Plaintiff overlooks his direct obligation to the Government as obligor on a bond containing the specific condition that Islam would not accept unauthorized employment. Though the Service would not deport the "student," now married to a United States citizen and now here as an alien permanent resident, who, without authorization, unilaterally entered the labor market, whereby the bond was breached, this fact does not excuse the obligor on the bond.