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INS v. NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS, INC. Opinion of the Court

consistently held interpretation of its own regulation is entitled to deference. In this case, the Government has consistently maintained that the contested regulation only implicates bond conditions barring unauthorized employment.2 Our conclusion that the regulation does not contemplate the inclusion of no-work conditions in bonds issued to aliens who are authorized to work is further supported by the text of the regulation,3 the agency’s comments when the rule was promulgated,4 the operating instructions issued to INS personnel,5 and the absence of any evidence that the INS has 2

In this regard, it is noteworthy that the Government’s 1986 petition for certiorari framed the question presented as: “Whether 8 U. S. C. § 1252(a), which allows the Attorney General, pending determination of deportability of an alien, to release the alien under bond ‘containing such conditions as the Attorney General may prescribe,’ permits a condition that forbids the alien to engage in unauthorized employment pending determination of deportability.” Pet. for Cert. in INS v. National Center for Immigrants’ Rights, O. T. 1986, No. 86–1207, p. i (emphasis supplied). This supports the Government’s current representation that it has consistently taken the position that the regulation was never intended to interfere with an alien’s right to engage in authorized employment. 3 The critical sentence in the regulation states that the condition shall be included “unless the District Director determines that employment is appropriate.” 8 CFR § 103.6(a)(2)(ii) (1991). This language places the burden on the alien of demonstrating that employment is appropriate, but it seems inconceivable that the District Director could determine that employment that had already been authorized was not “appropriate.” 4 In response to critical comments on the proposed rule during the rulemaking process, the agency categorically stated that “permanent resident aliens are not affected by these release conditions. Until such time as permanent resident status is lost, the permanent resident alien has the right to work in the United States, if released on bond. The Service, therefore, has no intention of applying this condition to a permanent resident alien in exclusion or deportation proceedings.” 48 Fed. Reg. 51143 (1983). 5 “Individuals maintaining a colorable claim to U. S. Citizenship and permanent resident aliens, authorized to work in the United States under 8 CFR 109.1(a)(1), shall not be subject to this general prohibition until such time as a final administrative determination of deportability has been made.” INS Operating Instruction 103.6(i) (Dec. 7, 1983).