GIBSON

Interim Decision #2541

MATTER. OF GIBSON

In Deportation Proceedings

A-18423427 •

Decided by Board December 14, 1976

(1) Respondent, who seeks suspension of deportation under section 244(a)(1) of the

Immigration and Nationality Act, entered the United States as a nonimmigrant student

and has been in this country for nine years. He has completed five semesters of college,

has no specialized training, and has been employed as a janitor or custodian He is

unmarried and has no relatives in the United States.

(2) Notwithstanding the fact that respondent meets the physical presence and good moral

character requirements of the statute, his application for suspension of deportation will

be denied because economic detriment which may result from deportation does not meet

the test of extreme hardship within the contemplation of section 244(a)(1) of the Act.

(3) In order to insure fair and complete consideration of the proceedings before the Board

it is necessary that copies of all briefs, memoranda and representations filed in connec-

finn therewith shall have hen served nn the parties, and the rernrd shall sh nw the date

of service. The immigration judge is primarily responsible for the physical aspects of the

record in cases under his jurisdiction which come before the Board, and the District

Director is similarly responsible for the physical record in cases under his jurisdiction

which come before the Board.

CEARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant student—

remained longer than permitted.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Gordon G. Dale, Esquire William B. Odencrantz

1815 North Broadway Trial Attorney

Santa Ana, California 92706

BY: Milhollan, Chairman, Wilson, Torrington, Maniatis, and Appleman, Board Members

This is an appeal from an order of an immigration judge on May 14,

1576, finding the respondent, age 32, deportable and granting his appli-

cation for the privilege of voluntary departure, with an alternate order

of deportation to Great Britain. The immigration judge denied the

respondent's application for suspension of deportation, pursuant to the

pzovisions of section 244(a)(1) of the Immigration and Nationality Act,

as amended. The appeal will be dismissed.

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Interim Decision #2541

The record fails to show that a copy of an undated Service memoran-

dum in support of the decision of the immigration judge was served upon

counsel for respondent. An informal check by this office on October 20,

1976, revealed that the memorandum was received by counsel approxi-

mately two months after the August 9, 1976, deadline for filing a reply

brief, and also after the scheduled date for oral argument. Since ample

time has elapsed for the respondent to answer and no additional time

has been requested, the case is now ripe for decision.

In order to insure fair and complete consideration of the proceedings

before this Board, it is necessary that copies of all briefs, memoranda,

and representations filed in connection therewith (see 8 C.F.R. 3.3(c))

shall have been served on opposing parties, and that the record show

the date of service. We hold the immigration judge primarily responsi-

ble for the physical aspects of the record before us in matters under - his

jurisdiction, including all material pertaining to the organization and

completeness of the record under 8 C.F.R. 242.15, such as an accurate

transcript of hearings; orderly inclusion of exhibits and trial briefs; his

signed separate opinion; the appeal notice, with attachments; copies of

relevant procedural communications between immigration judge, re-

spondent, and Immigration and Naturalization Service; and all appeal

briefs with proof of timely service_ Failure to insure that the record

contains proof of service can result in delay and inconvenience, or, more

importantly, a deprivation of due process and a possible miscarriage of

justice if inadvertently overlooked (cf. 8 C.F.R. 242.17(c)).

In those matters within S C.F.R. 3.1(b) not under the jurisdiction of

an immigration judge, it is the District Director who is primarily re-

sponsible for the record, including proof of service and memoranda

addressed to this Board which can in any way influence our decision,

with the exception of classified material which must be handled in

accordance with outstanding instructions (see 8 C.F.R. 103.2(b)(2)).

Our review of the record, including briefs submitted by both parties,

satisfies us that the hearing was fair, that deportability has been estab-

lished by clear, convincing and unequivocal evidence, and that the

immigration judge properly applied the pertinent legal principles. In

considering the suspension application, he found that the respondent

has the necessary continuous physical presence in the United States and

has been a person of good moral character during the past seven years.

He further found, however, that any economic detriment deportation

may cause the respondent would not meet the test of extreme hardship,

within the contemplation of the statute, citing Matter of Sangster, 11 I.

& N. Dec. 309 (BIA 1965); Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965).

The respondent came to the United States as a nonimmigrant student

and has now resided here for nine years. During that period of time, he

has completed only five semesters of college and has no specialized field

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Interim Decision #2541

(Tr. p. 10). His application for suspension of deportation reflects that he

has been employed mostly as a janitor and custodian. As of May 13,

1976, his savings account with the Bank of America showed a balance of

$2,652. The unmarried respondent, who has no relatives in this country,

is still a young man and should have no difficulty obtaining some type of

suitable employment if deported. While he obviously has become accus-

tomed to the American way of life, the difference in economic standards

which exists between the United States and other counties cannot be

held to command the favorable exercise of discretion. See Yeang Ying

Ch,eung v. INS, 422 F.2d 43 (3 Cir. 1970). We conclude that the immi-

gration judge's reliance upon our decisions in Matter of Sangster, supra,

and Matter of LTy, .supra, was correct. The respondent has not estab-

lished that deportation would cause him extreme hardship and he is not

eligible for suspension of deportation. See Matter of Marquez, Interim

Decision 2352 (BIA 1975); cf. Matter of Kim, Interim Decision 2318

(BIA 1974). Accordingly, the decision of the immigration judge will be

affirmed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration judge's order, the

respondent is permitted to depart from the. United States voluntarily

within 31 days from the date of this order or any extension beyond that

time as may be granted by the District Director; and in the event of

failure so to depart, the respondent shall be deported as provided in the

immigration judge's order.

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