Interim Decision #2188

Interim Decision #2188

MATTER OF CHAVARRI-ALVA

In Deportation Proceedings

A-20010454

Decided by Board March 29, 1973

Where the special inquiry officer's decision in deportation proceedings was

rendered on January 17, 1973; Notice of Appeal therefrom, although dated

January 26, 1973, was not filed by the alien's attorney until March 2, 1973; and

none of the grounds of appeal stated in the Notice presented a cognizable

issue, the Board of Immigration Appeals dismissed the appeal for lack of

jurisdiction as untimely.*

CHARGE:

Order: Act of 1952—seetton 241(0(2) [8 U.S.C. 1261(a)(2)]—Nonimmigrantremained longer than permitted.

ON BEHALF OF SERVICE:

William S. Howell

Trial Attorney

In Matter of Gamboa, Interim Decision No. 2176 (B IA, 1972), we

noted in passing that, "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."

This is such a ease.

Before us is an untimely appeal from an order of an immigration

judge' dated January 17, 1973, finding the respondent deportable

and granting him the privilege of departing voluntarily on or

before March 15, 1973. The notice of appeal to this Board, though

dated January 26, 1973, was not filed with the Immigration and

Naturalization Service until March 2, 1973. Following the procedure suggested in Matter of Gamboa, supra, the Service forwarded

the record to us without delaying to transcribe the hearing. In an

accompanying memorandum, a copy of which was directed to

counsel, the Service's Trial Attorney set forth the basis for his

conclusions that the appeal can be adequately considered without

a transcript and that the appeal should be summarily dismissed.

Special inquiry officers are now referred to as immigration judges.

* Cert. denied 414 U.S. 861 (1973).

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The notice of appeal filed in this case is similar in many ways to

notices of appeal filed by the same attorney in the cases of many

other aliens which have come before us in recent months. The

same or similar "boilerplate" grounds for appeal are stated, none

of which appears to set forth an issue cognizable by this Board,

and the same technique of back-dating a notice of appeal to make

it seem timely is apparently employed. We think it is high time to

comment on the procedures involved, for the benefit of both this

attorney and others newly embarked on an immigration practice.

To make sure that no possible right of the respondent has been

overlooked, we have requested the Service to send us a transcript

of the hearing. The record as thus augmented reveals the following facts: The respondent is a married male alien, a native and

citizen of Peru, who was admitted to the United States on or about

February 1, 1970 as a nonimmigrant visitor for a temporary period

until May 1, 1970 and remained here thereafter without permis- sion.AtheargbfimtonjudgeJary17,

1973, respondent was examined through a Spanish interpreter.

Notified of his right to be represented by an attorney of his own

choice without expense to the Government, respondent elected to

proceed without a lawyer. He admitted the truth of the factual

allegations of the order to show cause and conceded deportability.

Because of respondent's failure to designate a country of deportation, the immigration judge specified Peru as the country and

notified respondent of his right to apply for withholding of deportation to Peru under section 243(h) of the Immigration and

Nationality Act. Respondent testified that he had been a wholesale distributor of medical supplies in Peru, had been engaged in

politics there since he was 13 years old, but was never a member of

the.government in Peru. It was brought out that respondent had

previously made a statement to Service officers with respect to a

claim for political asylum and that the State Department had

expressed the opinion that he would not be persecuted. 2 Respondent conceded that he would not be persecuted in Peru because of

his race, religion, or political beliefs but expressed the view that,

"with the present Government in the near future, all the Atristas

will be persecuted," although he has no evidence of this. Following

a discussion off the record, the immigration judge stated that the

respondent had admitted that he has no persecution claim and

would not file an application. Respondent's application for volun2 In his memorandum of March 12, 1973, transmitting the record to us, the

Trial Attorney states, in part, "This alien's situation was reviewed by the

Department of State on a possible claim to political asylum and was rejected by

their letter dated August 11, 1972." A copy of the State Department's letter was

not forwarded to us.

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tary departure was granted and he was given until March 15, 1973

to depart.

• At the Conclusion of the hearing, the immigration judge informed the respondent, "Inasmuch as you admitted you were

deportable and I have granted you in excess of 30 days in which to

depart, there is no appeal from this decision." Technically, this

advice was incorrect. Under the exception to 8 CFR 3.1(b), such an

order is not appealable only "if the sole ground of appeal is that a

greater period of departure time should have been granted."

(Emphasis added.) Conceivably, another (though perhaps frivolous) ground of appeal could have been asserted. See Matter of

Gamboa, supra. We think the immigration judge should properly

have notified the respondent of his right to appeal, as required by

8 CFR 242.19(b), and given him the opportunity to waive appeal, if

he chose. We shall, therefore, not consider this case as one in

which appeal has been waived. In any event, since we have

carefully reviewed the record to see if there is any merit to the

appeal, respondent has not been prejudiced by any inadequacy in

the immigration judge's flat statement that there is no appeal.

This brings us to the notice of appeal itself. It is dated January

26, 1973, which would be within the time limit specified in 8 CFR

24221. It was not filed, however, until March 2, 1973, when it was

clearly out of time. No explanation has been offered for the

seeming delay. If counsel was actually retained by the respondent

by January 26, 1973 and prepared the notice of appeal on that

date, we have reason (and perhaps so has the respondent) to

wonder why counsel delayed filing until March 2, 1973, when it

was too late by far. Another possibility is that counsel was not

retained until later and that he back-dated the notice of appeal in

an attempt to make it appear timely. Such an attempt at deception, though ineffectual, should not pass unnoticed.

Three grounds of appeal are stated in the notice of appeal. Not

one of them relates to the evidence' developed at the deportation

hearing or to the issues which were raised, or could have properly

been raised, at that hearing. This Board, as an appellate tribunal,

normally reviews the decision of the immigration judge on the

basis of the administrative record underlying his decision and in

light of the grounds for appeal stated in the notice of appeal. If

counsel seeks to raise an issue on the basis of new facts not

developed of record, the proper procedure is to move for reopening

under 8 CFR 24222 so that the new evidence, if relevant, may be

made part of the record and furnish the basis for a new decision by

the immigration judge, rather than to file a notice of appeal to this

Board based on facts not of record_ We see no reason, however, to

remand this case to the immigration judge for the purpose of

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enabling counsel to present evidence substantiating the new

factual allegations of the notice of appeal. None of the grounds of

appeal presents an issue cognizable either by the immigration

judge or by this Board on appeal.

The first ground of appeal states, "Appellant is a native and

citizen of Peru and has a pending application for a change of

status under section 203(aX7) of the Immigration & Nationality

Act. His life is in great danger if forced to return to Peru." We

need not pause to consider whether respondent, while in the

United States, is eligible to apply for section 202(aX7) conditional

entry under 8 CFR 235.9 or whether, as a Western Hemisphere

native, he is eligible for adjustment under the proviso to section

203(a)(7) in view of 8 CFR 245.4 and the limitations of section 245(c)

of the Act. The fact remains that the determination of such

applications has been delegated to the Service's District Directors,

and not to the immigration judges or this Board. Deportation

proceedings against a deportable alien need not be withheld or

postponed pending his pursuit of such possible collateral remedies,

Bowes v. District Director, 443 F2d 30 (C.A. 9, 1971); Armstrong v.

INS, 445 F.2d 1395 (9 Cir., 1971); Mann:Wan INS, 425 F.2d 092

(C.A. 7, 1970). The assertion that respondent's life is in great

danger if forced to return to Peru is, as we have seen, unsupported

by the record.

The second ground of appeal states, "The District Director's

decision was an abuse of discretion and contrary to the dictates of

the Immigration & Nationality Act." The record before us is

barren of any reference to a District Director's decision and the

notice of appeal does not inform us what that decision involved. In

any event, there is nothing to indicate that the District Director's

decision, whatever it was, is within this Board's appellate jurisdiction as defined in 8 CFR 3.1(b).

The third ground for appeal states, "Eastern hemisphere aliens

are entitled to immigrate into the United States while being

physically present in this country. Due to discrimination, western

hemisphere aliens are not allowed to avail [sic] of this ri ght. This is

a denial of the equal protection clause of the Constitution." There

is nothing in the record before us to indicate that the immigration

judge invoked any provision of the Act which discriminates

against respondent by reason of his birth in the Western Hemisphere. At any rate, neither this Board nor the immigration

judges may consider such a challenge to the statutes we administer, Matter ofL—, 4 L & N. Dec. 556 (B IA, 1951); Matter of Santana,

13 I. & N. Dec. 362 (B IA, 1969).

We are satisfied from our review of the record that there is no

merit to this untimely appeal and we, therefore, see no reason to

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take the case on certification under 8 CFR 3.1(c). Had the appeal

been timely, on dismissal the respondent would still have had

access to the voluntary departure privilege, Matter of Villegas

Aguirre, 13 I. & N. Dec. 139 (BIA 1969). The voluntary departure

privilege has now expired. To restore it now on the basis of an

untimely appeal so lacking in merit would only encourage similar

attempted appeals in equally meritless cases. We shall, therefore,

dismiss the appeal for lack of jurisdiction as untimely, without

more.

ORDER: The appeal is dismissed for lack of jurisdiction as

untimely.

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