E-092365.
Decided by Board November 23, 1954.
Jurisdiction of B.I.A. — Certification, 8 C.F.R. 6.1 (c) — Authority of the Attorney General under section 103 (a) of Immigration and Nationality Act has not been delegated.
(1) A proper basis for certification of a deportation case to the Board of Immigration Appeals exists where there is a question concerning the correctness of the decision. The regulations (8 C.F.R. 6.1 (c)) do not contemplate certification of cases where the decision is not challenged and the only issue involved is some matter preliminary or ancillary to but not part of the decision.
(2) Section 103 (a) of the Immigration and Nationality Act confers unlimited authority on the Attorney General with respect to all questions of law to the extent that his rulings are binding on other departments of the government. The Attorney General's authority thereunder to resolve divergent legal opinions among different governmental departments has not been delegated to special inquiry officers.
BEFORE THE BOARD
Discussion: Counsel has filed a petition in the above-entitled proceeding, requesting certification of the case to this Board and to the Attorney General.
The respondent is a 41-year-old male, native and last a citizen of Poland, whose only entry into the United States occurred on August 29, 1950, when he was admitted as a visitor for a temporary period. His last extension expired on November 8, 1951. In a written decision dated July 8, 1954, the special inquiry officer concluded that the alien was deportable solely on the lodged charge which was that the respondent had failed to comply with the conditions of his status as a visitor. He granted voluntary departure and pre-examination with a further provision that the respondent be deported if he failed to depart voluntarily. Since no appeal was taken, this order has become final. On October 20, 1954, the field office of the Service granted the respondent until January 28, 1955, within which to effect his voluntary departure.
This respondent was an unmarried person when he applied for a nonimmigrant visa to an American consular officer in Israel on July 18, 1950, but he falsely stated at that time that he was married and that his wife was residing in Tel Aviv, and he presented a letter to the consular officer, purporting to be from his wife, to the effect that she consented to his visiting the United States. Counsel's petition indicates that an American consular officer in Canada has under consideration (presumably because of the provisions of section 212 (a) (19) of the Immigration and Nationality Act) the question of whether an immigrant visa may be issued to the respondent in view of his false statement concerning his marital status in 1950. The special inquiry officer, in his decision of July 8, 1954, concluded "that the misrepresentation as to his marital status was not material and did not invalidate his visa." Counsel, through his request for certification, seeks to make the quoted conclusion of the special inquiry officer a ruling by the Attorney General on a question of law and thus binding on the American consular officer.
We have carefully considered counsel's arguments in his petition and the cases cited in support thereof. We fail to perceive the applicability of United States ex rel. Trinler v. Carusi, 166 F. (2d) 457 (C.C.A. 3, 1948) and United States ex rel. Katnic v. Reimer, 25 F. Supp. 925 (S.D.N.Y., 1938). In addition, we note that the principal question decided in the Trinler case, ( supra), was subsequently decided to the contrary by the Supreme Court in Heikkila v. Barber, 345 U.S. 229, 235 (1953).
Counsel does not ask this Board or the Attorney General to review and approve the special inquiry officer's conclusion quoted above, but he desires that, without any further consideration of whether the conclusion is correct or incorrect, it be elevated to the status of a ruling by the Attorney General on a question of law within the purview of section 103 (a) of the Immigration and Nationality Act. We note that the conclusion relied upon by counsel does not even rise to the point of being included in the formal conclusions of law of the special inquiry officer. We believe it is clear that the proviso in section 103 (a) of the Immigration and Nationality Act was intended to vest in the Attorney General the final authority to rule on questions of law where there was a divergence of opinion between the Attorney General, the President or the Department of State and officers of that Department. In the instant case, the Department of State had no opportunity to present its views prior to the decision rendered by the special inquiry officer. It would be entirely contrary to what we consider to be the intent of this statutory provision if every legal question decided by every special inquiry officer in the United States were treated as being the ruling of the Attorney General on a question of law. We are convinced that such a construction of section 103 (a) would be completely opposed to the intent of Congress and we must reject the contention of counsel that legal conclusions of special inquiry officers can be considered determinations by the Attorney General within the purview of section 103 (a) of the Immigration and Nationality Act.
Counsel has cited cases for the proposition that the Attorney General or other cabinet officers may delegate certain of their official duties to subordinates and that the actions of the subordinates, within their delegated authority, have the same legal effect as if the cabinet officer himself had performed the act. We agree that this is a correct statement of the law and that this rule would comprehend the issuance of immigration warrants of arrest, orders and warrants of deportation, etc., all of which have been specifically delegated to the Attorney General's subordinates.
In considering whether there has been any delegation of the Attorney General's authority under section 103 (a) of the Immigration and Nationality Act, we note that 8 C.F.R. 242.61 (a) requires that a written decision of a special inquiry officer shall contain "conclusions of law as to deportability." This is a duty imposed upon such officers rather than a delegation of any authority of the Attorney General. Legal conclusions not directly connected with the issue of deportability are not referred to in the regulation. A special inquiry officer's conclusions of law as to deportability are subject to reversal by this Board on appeal, and these officers are also restricted in this respect by the provisions of 8 C.F.R. 6.1 (g), making precedent decisions of this Board binding in all proceedings involving the same issue. On the other hand, the proviso in section 103 (a) of the Immigration and Nationality Act confers unlimited authority on the Attorney General "with respect to all questions of law" to the extent that his rulings are binding on other departments of the government. As we have indicated above, the obvious intent of Congress that the Attorney General should resolve divergent legal opinions among different governmental departments could hardly be accomplished by delegating this authority to special inquiry officers. Counsel has not pointed to any provision of the regulations which could be considered as a specific delegation to special inquiry officers of the Attorney General's authority under section 103 (a) of the Immigration and Nationality Act and we have found none. We hold that this authority has not been delegated to special inquiry officers.
While we have considered it appropriate above to rule on the broader aspects of the question, there are additional reasons why it would be necessary to deny counsel's request. In the first place, we think that the special inquiry officer's conclusions concerning immateriality of the misrepresentation and the validity of the visa may properly be considered as being only dicta. This is so because the matter for determination by him was whether the proceeding should be terminated or whether the warrant charge, the lodged charge, or both charges should be sustained. There was no charge questioning the validity of the nonimmigrant visa. The warrant contained the charge that the respondent was excludable at the time of his entry because he was "an immigrant not in possession of a valid immigration visa" and not exempt from the presentation thereof, and the lodged charge was that the respondent, after his admission as a visitor, failed to comply with the conditions of his status. These two charges have been used for many years, and it has long been the practice for the officer conducting the hearing to determine which was applicable, sustaining that charge and dismissing the other. We believe, therefore, that in this case it was only necessary for the special inquiry officer to determine whether the respondent was an immigrant or nonimmigrant at the time of entry and that the question of the validity of the nonimmigrant visa was not pertinent to the decision.
Secondly, our jurisdiction under 8 C.F.R. 6.1 (c) on the basis of certification relates only to cases arising under subparagraphs (1) through (6) of 8 C.F.R. 6.1 (b). Subparagraph (2) thereof refers to the decisions of special inquiry officers in deportation cases. Hence, it is our conclusion that a proper basis for certification exists where there is a question concerning the correctness of the decision but that the regulations do not contemplate certification of cases where the decision is not challenged and the only issue involved is some matter preliminary or ancillary to but not part of the decision. For the foregoing reasons, we will deny counsel's request that we order certification of the case to this Board.
Counsel has also requested certification of the matter to the Attorney General. There is, of course, no provision in the regulations for the Attorney General's review of a decision of a special inquiry officer, and 8 C.F.R. 6.1 (h) specifically provides, in part, "the Board shall refer to the Attorney General for review of its decision * * *" certain classes of cases. In accordance with subparagraph (ii) of that regulation, consideration has been given to counsel's request. Neither the chairman nor a majority of the Board believes that our decision in this case should be referred to the Attorney General for review. Accordingly, this part of counsel's petition is also denied.
Order: It is ordered that the petition for certification of respondent's case be and the same is hereby denied.