holding that an alien cannot defeat deportation proceedings by merely departing the United States and reentering, and the Service is not required to issue a new Order to Show Cause if the alien is still deportable upon return on the same grounds
How later courts described this case
- holding that an alien cannot defeat deportation proceedings by merely departing the United States and reentering, and the Service is not required to issue a new Order to Show Cause if the alien is still deportable upon return on the same grounds
- holding that an alien may not defeat a Service appeal and nullify deportation proceedings by effecting a departure from and subsequent reentry to the United States
- “As long as the allegations and charges in the [NTA] continue to be applicable, the alien remains subject to deportation. He cannot compel the termination of deportation proceedings which have been commenced against him merely by effecting a departure and reentry”
- alien may resume application for § 212(c) relief upon return to this country
Written by the judges who cited it.
The opinion
• Interim Decision #2924
MATTER OF BROWN
In Deportation Proceedings
A-30085015
Decided by Board September 30, 1982
(1) Deportation proceedings which have been commenced against an alien are not nullified
by his temporary absence from the United States as long as the allegations and charges
stated in the Order to Show Cause continue to be. applicable.
(2) The Immigration and Naturalization Service need not issue a new Order to Show Cause
when an alien under deportation proceedings departs from the country if upon his return
he is still deportable on the same grounds stated in the Order to Show Cause.
(3) A lawful permanent resident who has applied in deportation proceedings for a waiver
of deportability under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.
•182(c), and subsequently departs from the United States may resume the application
in those proceedings upon his return.
CHARGE:
Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of a narcotics vio-
lation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Joseph F. O'Neil, Esquire Frederick J. McGrath
116 Lincoln Street General Attorney
Boston, Massachusetts 02111
Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The Immigration and Naturalization Service has appealed from a deci-
sion of the immigration judge dated May 5, 1982, terminating deporta-
tion proceedings. The appeal will be sustained and the record will be
remanded for further proceedings.
The respondent is a 25-year-old native and citizen of Jamaica who was
admitted to the United States on May 27, 1973, as a lawful permanent
resident. Thesecord reflects that he was convicted on June 3, 1980, in
the District Court of Springfield, in Springfield, Massachusetts, for
possession of marijuana.
On August 28, 1980, an Order to Show Cause was issued charging the
respondent with deportability under section 241(a)(11) of the Immigra-
tion and Nationality Act, 8 U.S.C. 1251(a)(11), for having been con-
victed of a narcotics violation. At deportation proceedings conducted on
224
Interim Decision #2924
May 11, 1981, the respondent conceded deportability and applied for a
waiver of deportation pursuant to section 212(c) of the Act, 8 U.S.C.
1182(c). TLe hearing was continued for an investigation regarding that
application
At resumed proceedings on May 5, 1982, the respondent testified that
he had departed from the Unit ul States on August 19, 1981, for a visit
to Jamaica. The immigration judge terminated deportation proceedings,
concluding that the Service was required to institute new proceedings
as a result of the respondent's departure from the United States. He
further stated that by leaving.the country the respondent abandoned his
applicatiom for section 212(c) relief.
We find that the immigration judge erred in terminating the proceed-
ings in this case. Deportation proceedings previously commenced against
an alien are not nullified by his temporary absence from the United
States. The reason for issuance of an Order to Show Cause is to inform
an alien of the deportation charges against him and to notify hiln that he
must show why he should not be deported. See 8 C.F.R. 242.1(b). As
long as the allegations and charges stated in the Order to Show Cause
continue to be applicable, the alien remains subject to deportation. He
cannot compel the termination of deportation proceedings which have
been commenced against him merely by effecting a departure and
reentry. Consequently, we do not find it mandatory that the Service
issue a new Order to Show Cause when an alien departs from the coun-
try if upon his return he is still deportable on the same grounds stated
in the Order to Show Cause. This ruling does not, however, preclude
the Service from electing to issue a new Order to Show Cause when
appropriate. •
Furthermore, we conclude that the respondent's application for sec-
tion 212(e), relief could properly be resumed upon his return to the
United States. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981). Requirr
inghmtoflearpicnwouldsev fprointh
case. Accordingly, the record will be remanded to the immigration judge
for further proceedings consistent with the foregoing opinion and for the
entry of a new decision.
ORDER The record is remanded to the immigration judge for
further proceedings.
325