Interim Decision *3015

Interim Decision *3015

MATTER OF PATEL

In Deportation Proceedings

A-26532196

A-26531749

Decided by Board July 11, 1986

(1) The legitimate purpose recognized in Matter of Chouliaris, 16 I&N Dec. 168 (BIA

1977), of protecting the alien's right to appeal by avoiding a forced election between a grant of voluntary departure and the filing of an appeal is not served

where, as here, the alien's appeal is determined to be frivolous or filed solely for

the purpose of delay.

(2) To the extent that Matter of Chouliaris requires a further order granting voluntary departure in appeals determined to be frivolous or filed solely for the purpose of delay, it is disapproved and is modified to preclude a further grunt of voluntary departure where the original grant has expired.

CHARGE:

Order. Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1261(aX2)]—Nonimmigrant—remained longer than permitted (both respondents)

ON BEHALF OF SERVICE:

Franklin Bell

General Attorney

ON BEHALF OF RESPONDENTS:

Marshult M. Taheri, Esquire

5433 Westheimer, Suite 1000

Houston, Texas 77056

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members

In a decision dated February 6, 1984, an immigration judge found

the respondents deportable as charged, concluded that they were

not eligible for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1982), and granted

them the privilege of voluntary departure in lieu of deportation for

a period of 6 months, with an alternate order of deportation to

India. The respondents have appealed. The appeal will be summari.

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Interim Decision *3015

ly dismissed pursuant to 8 C.F.R. § 3.1(d)(1-aXiv) (1986). 1 The request for oral argument before the Board is denied.

The respondents, a 45-year-old male and his 40-year-old wife, are

natives and citizens of India who last entered the United States at

Seattle, Washington, on January 13, 1978, as nonimmigrant visitors authorized to remain until February 12, 1978. At their deportation hearing begun on October 24, 1983, and completed on February 6, 1984, the respondents, who were represented by counsel, admitted the factual allegations contained in their respective Orders

to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien

(Form I-221S) and conceded deportability as "overstays" under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1982). The respondents do not now challenge the finding of deportability and we are

satisfied from a review of the record that they received a fair hearing and that their deportability has been established by evidence

which is clear, unequivocal, and convincing as required by Woodby

v. IV'S, 385 U.S. 276 (1966).

The respondents' Notice of Appeal (Form I 290A) states only that

"Eaittorney for appellants requests a copy of the transcript of the

hearing and exhibits and thirty (30) days from receipt of same to

-

file a written brief." Although indicating that a brief would he submitted in support of their appeal, the respondents have failed to do

so. Where, as here, the respondents do not challenge the finding of

deportability, have neither requested nor shown eligibility for any

form of relief from deportation, and were granted voluntary departure in excess of 30 days, we conclude that the appeal is frivolous

or filed solely for the purpose of delay and should therefore be

summarily dismissed pursuant to 8 C.F.R. § 3.1(d)(1-a)(iv) (1986).

Compare Matter of Valencia, 19 I&N Dec. 354 (BIA 1986) (summary

dismissal for failure to adequately specify reasons for the appeal).

In Matter of Chouliaris, 16 I&N Dec. 168 (BIA 19'77), we stated

that an alien in deportation proceedings must be assured that he

will not risk losing a grant of voluntary departure by filing an

appeal from an adverse decision of an immigration judge and that

his right to appeal is protected by ensuring the preservation of

some period of voluntary departure during the pendency of the

appeal. However, Chouliaris did not involve a frivolous appeal or

one filed solely for the purpose of delay, and thus the Board was

1 The regulation at 8 C.F.R. §3.1(dX1-aXiv) (1986) provides, inter alia, for the summary dismistal of an appeal in any case in which the Board is satisfied, from a

review of the record, that the appeal is frivolous or filed solely for the purpose of

delay. The provisions of 8 C.F.R. § 3.1(dXl-a) (1986) are included in the instructions

on the reverse side of the Notice of Appeal (Form I-290A), so that every alien who

files an appeal has notice of them.

OAC

Interim Decision #3015

not required to address the effect of such an appeal on a prior

grant of voluntary departure by an immigration judge. The legitimate purpose recognized in Chouliaris of protecting the alien's

right to appeal by avoiding a forced election between a grant of voluntary departure and the filing of an appeal is not served where,

as here, the alien's appeal is determined to be frivolous or filed

solely for the purpose of delay.

It was not our intent in Chouliaris to reward an alien whose

appeal is determined to be frivolous or filed solely for the purpose

of delay with a further grant of voluntary departure. Chouliaris, in

fact, specifically modified our prior rule which required the reinstatement of the original period of voluntary departure granted by

an immigration judge. See Matter of Villegas Aguirre, 13 I&N Dec.

139 (BIA 1969). Our modification of the rule was premised on its

undesirable effect, in some cases, of providing a mechanism to prolong unduly the departure of deportable aliens.

Both this Board and the courts have long recognized the practice,

all too frequently adopted by aliens subject to an order of deportation, of employing meritless or dilatory tactics, having no colorable

legal or factual basis, solely for the purpose of delaying their departure from the country as long as possible. See INS v. Rios - Pineda,

471 U.S. 444 (1985); Contreras Aragon v. INS, 789 F.2d 777 (9th Cir.

1986); Riasati v. INS, 738 F.2d 1115 (10th Cir. 1984); Der-Rong

Chour v. INS, 578 F.2d 464 (2d Cir. 1978), cert. denied, 440 U.S. 980

(1979); Ballenilla-Gonzalez v. INS, 546 F.2d 515 (2d Cir. 1976), cert.

denied, 434 U.S. 819 (1977); Acevedo v. INS, 538 F.2d 918 (2d Cir.

1976); Panagopoulos v. INS, 434 F.2d 602 (1st Cir. 1970); Fan Wan

Keung v. INS, 484 F.2d 301 (2d Cir. 1970); Matter of Barocio, 19

I&N Dec. 255 (BIA 1985); Matter of Onyedibia, 15 I&N Dec. 37 (BIA

1974); Matter of Gamboa, 14 I&N Dec. 244 (131A 1972); Matter of

Holguin, 13 I&N Dec. 423 (BIA 1969); Matter of Laqui, 13 I&N Dec.

232 (BIA 1969), aff'd Laqui v. INS, 422 F.2d 807 (7th Cir. 1970);

Matter of Arao, 13 I&N Dec. 156 (BIA 1969).

We will no longer sanction the abuse of the appellate procedures

authorized under the regulations with a further grant of voluntary

departure. To the extent that Chouliaris requires a further order

granting voluntary departure in appeals determined to be frivolous

or filed solely for the purpose of delay, it is disapproved and is

modified to preclude a further grant of voluntary departure where

the original grant has expired.

Accordingly, the appeal will be summarily dismissed.

ORDER: The appeal is summarily dismissed pursuant to 8

C.F.R. § 3.1(d)(1-a)(iv) (1986).

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