Interim Decision #2176

Interim Decision #2176

MATTER OF GAMBOA

In Deportation Proceedings

A-19921314

A-19924404

Decided by Board December 7, 1972

Where it appears that an attempted appeal to the Board of Immigration Appeals

is frivolous, or is otherwise subject to summary dismissal for lack of jurisdiction or other reason, the notice of appeal should not be rejected but should be

forwarded to the Board for decision on the threshold isssue of appealability.

To avoid unnecessary delay in such cases, the record need not ordinarily

include a transcript of the hearing but should include the order to show cause,

the special inquiry officer's order, the exhibits, the notice of appeal, and a

memorandum from the District Director setting forth the basis for his belief

that the appeal should be summarily dismissed.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entry without

inspection (both respondents).

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Charles Gordon

General Counsel

Otto F. Swanson, Esquire

215 West Fifth Street

Los Angeles, California 90013

The record before us presents an important question of procedure which should be resolved.

The material facts are not in dispute. The respondents are

husband and wife, aged 24 and 20, respectively, both natives and

citizens of Mexico. They both last entered the United States

without inspection in February 1972 with the paid assistance of a

smuggler. The husband had entered illegally twice before, the first

time in 1969. He was granted voluntary departure that year but

returned illegally shortly thereafter in February 1970 with the aid

of a paid smuggler. He returned to Mexico in November 1971 and

reentered with his wife not long thereafter in February 1972,

when both were smuggled in.

At the deportation hearing before the special inquiry officer on

July 31, 1972, at which respondents were represented by present

counsel, they admitted the truth of the factual allegations in their

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respective orders to show cause, conceded deportability, and applied for the privilege of voluntary departure. In his oral opinion

at the close of the hearing, the special inquiry officer commented

on the husband's adverse immigration history and stated that if

the husband's case alone were before him, he would have no

hesitancy in denying voluntary departure. Noting the wife's

youth, her lack of a previous immigration history, and the fact

that she was expecting a child in September 1972, the special

inquiry officer concluded that both respondents should be granted

the relief sought and authorized voluntary departure on or before

August 31, 1972. Counsel reserved the right of appeal to this

Board, but was informed that in view of the voluntary departure

grant no appeal would lie under the exception to 8 CFR 3.1(bX2). 1

Notwithstanding this advice, on August 10, 1972 counsel for

respondents filed with the Service a notice of appeal to this Board

on the appropriate form and paid the required fee. The stated

reasons for the appeal, which are quoted in the margin, did not

refer to the amount of voluntary departure time. 2 Oral argument

before this Board was not requested. By letter dated August 14,

1972, the District Director returned the notice of appeal to counsel

"Din accordance with the provisions of 8 CIE, 3.1(bX2)." Counsel

sent the notice of appeal back, with a letter which stated, in part:

8 CFR 3.1(bX2) relates to appeals wherein the sole ground of appeal is that a

greater period of departure time should have been fixed. You will note that

these appeals are to the findings of the Special Inquiry Officer and not to the

time fixed for departure.

The Service again rejected the notice of appeal. In a letter to

counsel dated August 24, 1972, the Acting District Director stated,

in part:

The matters referred to in your [notice of appeal] are confusing in that they do

1 8 CFR 3.1(b): Appellate jurisdiction. Appeals shall lie to the Board of

Immigration Appeals from the following: * * *

(2) Decisions of special inquiry officers in deportation cases, as provided in

Part 242 of this chapter, except that no appeal shall lie from an order of a special

inquiry officer under § 244.1 of this chapter granting voluntary departure within

a period of at least 30 days, if the sole ground of appeal is that a greater period of

departure time should have been granted.

2 This appeal is to the findings of the Special Inquiry Officer that the male

respondent is not worthy of a grant of voluntary departure by virtue of having

been "smuggled into the United States."

Inasmuch as this was the sole "adverse" factor, such finding constitutes an

abuse of discretion. Entry in this manner is not relevant to an application for

such relief.

To allow the record to so stand will operate to prejudice future applications for

benefits. The humanitarian aspects presented in the hearing should have

resulted in a grant of the relief requested without the findings described above.

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not reflect the true picture of what transpired during the deportation hearings

of the above-named respondents.

Your clients admitted all allegations and conceded deportability and requested

voluntary departure. The [Special] Inquiry Officer rendered a summary decision

on Form 1-39, and granted thirty (30) days voluntary departure. The only

"findings of facts" which appeared on the record, are that the respondents have

been found deportable, and were granted the relief requested.

Counsel thereupon sent the notice of appeal and related correspondence direct to this Board. At our request, the Service's

General Counsel has supplied us with the administrative record

and a statement of his views. Counsel has been afforded the

opportunity to respond, but has not done so. The administrative

record does not contain a transcript of the deportation hearing but

we do not need it for purposes of the issues confronting us.

We are aware that frivolous appeals are sometimes taken to this

Board solely for purposes of delay and we have frequently expressed our disapproval of such tactics. See, e.g., Matter of Holguin,

13 I. & N. Dec. 423 (BIA, 1969). "Delay as an end in itself, whether

achieved by obstructionism or dilatory tactics, cannot in our view

be considered a legitimate object," Matter of Lagui, 13 I. & N. Dec.

232 (BIA, 1969), affirmed Laqui v. INS, 422 F.2d 807 (C.A. 7, 1970).

Because of the automatic stay pending appeal afforded by 8

CFR 3.6(a), the mere filing of a notice of appeal can in many cases

provide the opportunity for long delay. In many Service districts

such as Los Angeles, where there is an acute clerical shortage, the

problem is aggravated by the large backlog of hearings awaiting

transcription before the records on appeal can be forwarded to this

Board. In such a situation, an attorney intent on delay can abuse

the appellate process and obtain a long delay by the simple

expedient of filing a tithely notice of appeal to this Board, paying

the modest fee, and expressing some seemingly plausible ground

for appeal, regardless of how lacking in merit the record ultimately

reveals the appeal to be. It was to restrict these opportunities for

abuse that our regulations were recently amended, 36 F.R. 316

(January 9, 1971). One of the important changes was the elimination of the right of appeal altogether under the circumstances

stated in the exception of 8 CFR 3.1(bX2), footnote 1, supra.

Where it appears to a District Director that an attempted appeal

comes within that provision or is otherwise subject to summary

dismissal for lack of jurisdiction or other reason, it seems to us

that the proper procedure is to have him forward the record to us

for review as promptly as possible. To avoid unnecessary delay,

the record need not ordinarily include a transcript of the hearing if

the District Director is satisfied the issue can adequately be

presented without it. The record should include the order to show

cause, the special inquiry officer's order, the exhibits, the notice of

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appeal, and a memorandum from the District Director (a copy of

which should be served on counsel) setting forth the basis for his

belief that the appeal should be summarily dismissed. If we should

conclude that a transcript of the hearing is necessary for the

proper disposition of the case, we would request it.

Even where the District Director believes the appeal is frivolous

or is otherwise subject to summary dismissal, he should not

ordinarily take it upon himself to reject the notice of appeal.° In

handling the preparation and transmittal of records on appeals

under Part 3 of 8 CFR, the Service acts for the Board. Regardless

of the insubstantiality of an appellant's contentions regarding

appealability, when he refuses to accept Service advice that a case

is nonappealable the correct procedure is to refer the record to the

Board for decision on the threshold issue of appealability. It is

improper, in our view, to deny the party access to the Board after

he has expressed unwillingness to accept the Service's advice. We

believe that questions as to the Board's jurisdiction should be left

to the Board itself for decision.

To discourage dilatory appeals, we shall continue, as heretofore,

to adjudicate such cases on a priority basis. In transmitting the

record in such a case to the Board, the District Director should

appropriately flag it, so that the need for expedited handling is

readily apparent.

As counsel has pointed out, the notice of appeal filed in this case

challenges the special inquiry officer's decision on a basis other

than that stated in the exception to 8 CFR 3.1(bX2). It is true that

some attorneys, actually intent only on delaying the ultimate

departure time, studiously avoid any such statement in the notice

of appeal and manage to contrive a stated ground of appeal which

makes no mention of voluntary departure. The ingenuity and

inventiveness of some attorneys in devising' grounds of appeal

plausible on their face but bearing no realistic relation to the

record is simply astounding. Whatever inferences one may draw as

to the attorney's underlying motivation in such a ease, however,

unless the ground articulated in the notice of appeal comes

squarely within the terms of the regulation, we may not deny our

jurisdiction to adjudicate the appeal. We therefore turn to the

merits of the case before us.

We use the term "ordinarily" advisedly. There will be times when the District

Director will be justified in not sending us a record on appeal even where the

appeal is specifically directed to us. For example, where through misinformation

or the inadvertent use of an improper form (Form I-290A instead of I-290B), an

appeal is taken to this Board instead of to a Regional Commissioner from a sixth

preference visa petition denial, the District Director should direct the record to

the Regibnal Commissioner rather than to us.

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Counsel does not attack the fact findings on which the conclusion of deportability is based or the conclusion of deportability

itself. He is in no position to challenge the denial of any form of

discretionary relief from deportation, for the special inquiry officer

granted respondents the only form of discretionary relief for which

they applied or are eligible, voluntary departure. In essence, what

counsel excepts to is the special inquiry officer's statement that

the male respondent's three illegal entries constitute adverse

factors which would warrant denial of voluntary departure in his

case if it were not coupled with that of his wife. Counsel asserts

that the manner of entry is not a relevant factor in exercising

discretion on an application for voluntary departure; that the

inclusion of such a statement in the special inquiry officer's

opinion will prejudice the male respondent in making future

applications for benefits under the immigration laws; and that the

humanitarian aspects of the case warrant the grant of the requested relief without mention of the manner of entry.

We have considerable doubt whether the male respondent, as

the beneficiary of the special inquiry officer's discretionary grant

of voluntary departure, has standing to question the mental

processes by which the special inquiry officer arrived at his

conclusion that discretion should be favorably exercised. We need

not resolve that doubt. Laying aside the question of standing and

confronting the issues tendered on their merits, we conclude that

the contentions advanced by counsel are completely without substance.

The mere fact that an alien May be eligible for some form of

discretionary relief does not mean that he must be granted that

relief; discretion must still , be exercised, Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957). In exercising discretion on a voluntary

departure application, the special inquiry officer may take into

account many factors, including the alien's prior immigration

history, the nature of his entry or entries (whether as crewman,

stowaway, smuggled alien, alien in transit without visa, etc.), his

violations of the immigration and other laws, and the like, Matter

of M—, 4 I. & N. Dec. 626 (BIA, 1952); Matter of Pimentel, 12 I. & N.

Dee. 50 (BIA, 1967); Matter of Wong, Interim Decision No. 1966

(B IA, 1969). Discretion may be favorably exercised in the face of

adverse factors where there are compensating elements such as

long residence here, close family ties in the United States, or

humanitarian needs, Matter of 5—, 6 I. & N. Dec. 692 (A.G., 1955).

The special inquiry officer acted properly in balancing what he

rightly considered to be adverse factors against the humanitarian

needs of the female respondent and in articulating his analysis in

his written opinion. In clearly stating the reasons for his decision,

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the special inquiry officer carried out the normal responsibilities of

his office. A special inquiry officer's decision is reviewable, on

appeal by either the respondent or the Service, by this Board and

ultimately by the courts. It is proper that he should clearly set

forth the reasons for his decision, so that the respondent and the

Service may be in a better position to appraise the desirability of

appeal and so that a reviewing tribunal may be in a better position

to assess his judgment. We can find no fault with the special

inquiry officer for expressly stating why he did what he did.

ORDER: The appeal is dismisled.

Further order: The respondents are permitted to depart voluntarily in accordance with the terms of the special inquiry officer's

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

beyond that date as may be fixed by the District Director; upon

failure so to depart when and as required, the respondents shall be

deported to Mexico as directed by the special inquiry officer.

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