A-10750962
Decided by Board May 31, 1957
Voluntary departure — 8 CFR 242.21 — Appeals by examining officer.
While regulations permit an examining officer to appeal from a decision of a special inquiry officer granting voluntary departure to an alien with less than 5 years' residence, the Board will not reverse the special inquiry officer in such cases unless convinced that the decision so clearly needs correction as to justify the Board in taking the matter on certification.
CHARGES:
Order: Act of 1952 — Section 241 (a) (2) ( 8 U.S.C. 1251 (a) (2)) — Entered without inspection.
Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry — Section 212 (a) (20) ( 8 U.S.C. 1182 (a) (20)), Immigrant — No visa.
BEFORE THE BOARD
Discussion: This is an appeal from the decision of the special inquiry officer by the examining officer. The special inquiry officer granted voluntary departure. The examining officer urges that as a matter of discretion this relief should not be granted and that an order of deportation should be entered.
The case is concerned with a 20-year-old single male, native and citizen of Greece, who arrived as a seaman on the SS. Valhall at Baltimore, Maryland, November 30, 1956, less than 1 year ago. Respondent lacked a valid travel document at the time of arrival and for this reason was refused a conditional landing permit. Notwithstanding this, the respondent effected an illegal entry by leaving the vessel just before midnight on December 2, 1956.
At the hearing the respondent admitted the factual allegations in the order to show cause, as well as his deportability on the grounds stated in that order. The respondent asked for voluntary departure which the special inquiry officer granted. In his order, the special inquiry officer commented on the fact that in a criminal prosecution for illegal entry, the matter was adjourned until July 1, 1957, when the respondent was to appear before the court with a ticket for his departure from this country. By reason of the attitude of the court, the special inquiry officer thought an order of voluntary departure would be appropriate so that the 2 branches of the Government would not be acting inconsistently.
The examining officer in his appeal contends that the action of the court in the separate and distinct criminal case should not influence the administrative deportation proceeding and in view of the manner of the respondent's illegal entry, the recentness thereof, and the further fact that at the deportation hearing the respondent lacked funds with which to purchase transportation abroad (although by now he is probably able to do so), voluntary departure ought to be denied and deportation ordered.
In this matter we are confronted with an anomalous situation. Section 242.21 (a) of Title 8, Code of Federal Regulations, provides as follows:
§ 242.21 Appeals — (a) Non-appealable cases. An appeal shall not lie from a decision of a special inquiry officer denying an application for voluntary departure or preexamination as a matter of discretion where the special inquiry officer has found the alien statutorily eligible for voluntary departure or eligible for preexamination pursuant to Part 235a of this chapter, and the alien has been in the United States for a period of less than five years at the time of the service of the order to show cause in deportation proceedings. A Notice of Appeal shall not be filed or accepted in any case within the provisions of this paragraph.
It is noted that an appeal is prohibitive only where voluntary departure has been denied in the class of cases covered by section 242.21 (a) of Title 8, Code of Federal Regulations. This gives the Immigration and Naturalization Service an advantage over an alien. This we feel is the result of an inadvertence rather than deliberate action.
The first regulation concerned with nonappealable 5-year discretionary cases was contained in former section 151.5 (e) of Title 8, Code of Federal Regulations, and was promulgated as a regulation in the May 24, 1952, issue of the Federal Register. It became effective on that day. It has continued through various language revisions, but with no change in substance.
The regulation giving an examining officer a right of appeal is contained in section 242.9 (a) of Title 8, Code of Federal Regulations. It was originally promulgated in the January 6, 1956, issue of the Federal Register, to be effective on February 6, 1956. So far as pertinent here, the regulation provides as follows:
§ 242.9 Examining officers — (a) Authority. * * * The examining officer is authorized to appeal from a decision of a special inquiry officer pursuant to § 242.21 and to move for reopening or reconsideration pursuant to Part 8 of this chapter.
Prior to this rule there was no appeal by the Immigration and Naturalization Service from decisions of hearing officers or special inquiry officers, although cases could always be brought before the Board by the Service by means of certification. It is clear that the regulation barring appeals in 5-year discretionary cases was drafted in the light of the fact that only the alien involved could then appeal. When section 242.9 of Title 8, Code of Federal Regulations, giving the examining officer an appeal, was adopted, an appropriate modification of section 242.21 of Title 8, Code of Federal Regulations, to put both the Service and the alien on the same basis with regard to an appeal, doubtless was overlooked.
While we recognize the right of the examining officer to appeal in the 5-year discretionary cases, in order that the Service and the alien be placed on the same plane in this regard, we will not change a decision of a special inquiry officer unless we are convinced it is one which so clearly needs correction that we would take the matter on certification. We may now take and on some occasions have taken on certification a 5-year discretionary case not subject to appeal where voluntary departure was denied and where we were convinced justice required our intervention. By applying the same standard to both classes of cases, there will be maintained an equitable balance between the Service and the alien in this area of adjudication.
In the instant case, we do not feel that the decision of the special inquiry officer is one which, on certification, we would reverse.
Order: It is ordered that the appeal be dismissed.