DUCRET

Interim Decision #2483

MATTER OP DTTORET

In DepOrtation Proceedings

A-19673798

Decided by Board March 5, 1976

(1) An immigration judge has the power in deportation proceedings to grant nunc pro

tune permission to reapply for admission following deportation if it would conclude the

proceedings before him (Matter of Vrettakos, 14 1. & N. Dec. 593).

(2) An order tam-dilating deportation proceedings is a conclusion of the proceedings

within the contemplation of Mattei:of Vrettakos, supra.

CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry—

section 212(a)(17) [8 U.S.C. 1182(a)(17)]—arrested and de-

ported, no permission to reapply.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

James J. Oriels-, Esquire Paul C. Vincent.

636 Public Ledger Bldg. Appellate Trial Attorney

Philadelphia, Pa. 19106

In a decision dated May 27, 1975, the immigration judge found the

respondent deportable, denied the respondent's application for a

retroactive, or nunc pro tune, grant of permission to reapply for admis-

sion to the United States following deportation, but granted the respon-

dent the privilege of voluntary departure. The respondent has appealed

only from the denial of his application for retroactive permission to

reapply for admission to the United States. The record will be remanded

to the immigration judge.

The respondent is a native and citizen of Venezuela who last entered

the United States in June of 1974, evidently as a nonimmigrant visitor.

Prior to that entry, however, the respondent had been ordered de-

ported from the United States after a hearing held on November 19,

1971. After that earlier order of deportation, the respondent departed

the United States of his own accord. He nevertheless is considered to

have been deported. Section 101(g), Immigration and Nationality Act; 8

CFR 243.5. The respondent therefore required permission to reapply

for admission to the United States in order lawfully to be admitted in

any status.

The respondent did not obtain such permission prior to his last entry,

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and he obtained his nonimmigrant visa without informing the consular

official of his prior deportation. The respondent, however, maintains

that he did not realize that he had in law been deported, believing

instead that his self-financed departure was in no way a deportation.

The Service has charged the respondent with deportability under

section 241(a)(1) as an alien who was excludable at entry under section

212(a)(17). Section 212(a)(17) provides in part for the exclusion of

[a]liens who have been arrested and deported, . . . unless prior to their embarkation

or reembarkation at a place outside the United States or their attempt to be admitted

from foreign contiguous territory the Attorney General has consented to their applying

or reapplying for admission[.]

This is the only charge which the Service has brought against the

respondent during the course of the present deportation proceeding.

The respondent sought a retroactive grant of permission to reapply in

order to eliminate as a ground of deportability the charge brought by

the Service. The immigration judge, relying on our decision in Matter of

Vrettakos, 14 I. & N. Dee. 593 (BIA 1973 & 1974), held that he was

without jurisdiction to grant the respondent's applieatinn_ The immigra-

tion judge apparently reached this conclusion because the respondent, a

native of the Western Hemisphere, is ineligible for adjustment of

status, and because the alien crewman in Vrettakos was similarly

ineligible for section 245 relief. The immigration judge, however, has

misinterpreted Matter of Vrettakos, supra.

The Board and immigration judges have the power to grant permis-

sion to reapply for admission retroactively when appropriate and neces-

sary for the disposition of the case. See 8 CFR 3.1(d); 8 CFR 242.8(a).

See generally Matter of S—N—, 6 I. & N. Dec. 73 (BIA 1954; A.G. 1954).

In Vrettakos we indicated that a retroactive, or wane pro tune, grant of

permission to reapply for admission to the United States "would be

within the scope of an immigration judge's authority if it would conclude

the proceedings before him." We then noted that: .

This might be true in the case of an alien in deportation proceedings (1) whose sole

ground of deportability is under section 241(a)(1) of the Act, as an alien excludable at

entry under section 212(a)(17) for reentering the United States after deportation with-

out first securing the permission of the Attorney General; or (2) who seemingly qualified

for adjustment of status under section 245 of the Act, except for his inadmissibility as an

alien who was deported.

We thus set forth two situations in which an immigration judge has

the power in deportation proceedings to grant an alien's application for

permission to reapply for admission: (1) where the only ground of

deportability would be eliminated; and (2) where the alien would receive

a grant of adjustment of status in conjunction with the grant of any

appropriate waivers of inadmissibility. See 8 CFR 245.1(f); 8 CFR

242.17(a).

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In Vrettakos, the alien was not charged under section 241(a)(1) as that

section relates to section 212(a)(17). He was charged with deportability

under section 241(a)(2), on the ground that he was a crewman who had

entered the United States after being refused permission to land tem-

porarily. A mow pro tune grant of permission to reapply could not have

cured that ground of deportability. As a crewman, he was also ineligible

for adjustment of status and hence could not avail himself of that relief.

A grant of permission to reapply for admission could not help in any way

to conclude the proceedings against him.

However, in this case we hive a deportation proceeding in which the

sole ground of deportability is based on section 241(a)(1) as that section

relates to section 212(a)(17). A grant of permission to reapply for admis-

sion, retroactive to before the respondent's last entry, would eliminate

the section 212(a)(17) ground of inadmissibility, and would render the

respondent not deportable on the only charge now pending against him.

On the present state of the record, the proceedings would then be

terminated in favor of the respondent.

The Service, however, argues that this would not "conclude the

proceedings," within the contemplation of Vrettakos because the respon-

dent would remain deportable on several other charges. The short

answer to this contention is that no other charges of deportability have

been made against the respondent nor are they clearly established by

the present record. Neither the Board nor an immigration judge may

make a specific finding of deportability against an alien in the absence of

an appropriate charge and proof. In general, we should not be required

to speculate as to other possible grounds of deportability, even though

such grounds are likely to exist in this case.

We hold -Id an order terminating proceedings is a conclusion of the

proceedings within the contemplation of Yrettakos. Such a disposition

of the case is sufficiently final to invoke our authority and the authority

of an immigration judge to make a retroactive grant of permission to

reapply for admission to the United States. The immigration judge

therefore erred in concluding that he had no jurisdiction to grant the

relief requested by the respondent.

We have determined that jurisdiction presently exists to entertain

the respondent's application for retroactive permission to reapply for

admission. This does not end the inquiry, however, because a question

as to the exercise of discretion remains. As with other forms of discre-

tionary relief, an alien respondent bears the burden of showing that he

merits a favorable exercise of discretion on an application for permission

to reapply for admission. Evidence indicating that a respondent would

be otherwise deportable or inadmissible can be considered by the immi-

gration judge on the question of discretion, even if the Service specifi-

cally declines to charge the respondent in this regard.

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We shall remand the record to the immigration judge for further

proceedings. On remand, the Service will have the opportunity to lodge

additional charges against the respondent. In the event that an additional

charge is both lodged and established, the immigration judge will no

longer have jurisdiction to grant the respondent's application.

Counsel evidently seeks to avoid this possibility by having us deter-

mine the issue of discretion. The record, however, is incomplete as it

relates to the favorable or unfavorable factors which would affect our

exercise of discretion. Little evidence in this connection was introduced

below because of the immigration judge's jurisdictional resolution of the

respondent's application_ For example, a strong inference can be drawn

from certain facts in the record that the respondent is presently an

"overstayed visitor," and deportable on that ground. However, this

point was not developed below.

The record does not now contain sufficient information on which we

could base an exercise of discretion.

ORDER: The record is remanded to the 'immigration judge for

further proceedings.

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