IRIE

Interim Decision #1304




                                    MATralt        1.111Z

                        In DEPORTATION Proceedings

                                       A-13212870
                         Decided by Board October 23,193
    (1) Neither the Board of Immigration Appeals nor the special inquiry officer
      has authority to adjudicate an application for a waiver of the foreign residence
      requirement of section 212(e), Immigration and Nationality Act, as amended.
       (Reaffirms Metter of Rosenblatt, Int. Dec. No. 1260.)
    (2) Jurisdiction to fix voluntary departure date lies with the district director.
      If an alien fails to effect voluntary departure within the time accorded him,
      the district director is vested with the power to deport him expeditiously notwithstanding that an application for relief may be pending, if the district
      director, after consideration of the bona fides of the application, the length of
      time adjudication will take, the ability of the alien to depart and return, the
      probability of the success of the application, and other pertinent factors, decides
      that the polioy of the law will be defeated unless the alien promptly departs.
CHARGE •
      Order: Act of 1952 Section 241(a) (2) [8 U.S.C. 1251(a) (2)1
                            —                                               — Remained
               longer—exchange visitor.


   This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the ground stated above, denying his application for adjustment of status to that of a permanent
resident, and granting voluntary departure. Appeal will be dismissed.
   Respondent, a 43-year-old married male, an alien, a native and citizen of Japan entered the United States on June 24, 1958 as an exchange
visitor for a period ending June 30, 1963. He has remained without
authorization. Deportability is conceded. The respondent's application for adjustment of status to that of a permanent resident under
section 245 of the Act was denied on the ground that he had not established that an immigrant visa is immediately available to him. A
visa is not available because, respondent having been admitted as au
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exchange visitor is not eligible for the issuance of an immigrant visa
until he has been absent from the United States for two years.
   The requirement as to absence may be waived; in fact, respondent
filed an application for such a waiver with the District Director prior

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to the deportation proceeding, but the application had not been ruled
upon to the time oral argument was heard before the Board. At the
deportation hearing, counsel asked the special inquiry officer to rule
upon the application for the waiver; the special inquiry officer held
that he had no jurisdiction to do this. This is the first issue we shall
discuss.
   Counsel contends that the special inquiry officer, having the power
to grant the greater relief (adjustment of status to permanent residence) must also have the power to grant the lesser relief (waiver of
the requirement that there be an absence of two years) and therefore
should have acted upon the application for the waiver. Counsel is
aware of the fact that in Matter of Rosenblatt, Mt, Dec. No. 1260, and
other decisions, the Board held that a special Inquiry officer has no
authority to pass upon an application for a waiver of the absence requirement ; however, counsel believes the precedents are distinguishable because either dicta is involved or the cases would have required
review of a prior determination made by the District Director on the
application for a waiver. In the instant case, counsel points out that
no decision by the District Director had been made upon the application for the waiver at the time the deportation hearing was held.
   We do not find the contention persuasive. In Matter of Rosenblatt,
supra. the alien in deportation proceedings, requested that the special
inquiry officer rule upon an application for a waiver under section
•12(e) of the let. The alien contended, as in the instant case, that
the special inquiry officer could draw authority to make such a ruling
from his power to examine an alien's eligibility for adjustment of
status.   An application for the waiver had been denied 'by the District
Director prior to the deportation proceeding.. The Board held that
neither the special inquiry officer nor the Board had jurisdiction to
consider the application or to review a decision made by the District
Director upon such an application. The Board's decision was bottomed, not upon the fact that an application for the waiver had been
previously denied by the District Director, but upon the fact that an
examination of the law and regulations revealed there was no authority for the special inquiry officer or the Board to take jurisdiction in
the matter, such authority having been specifically delegated elsewhere. We see no reason to change the decision we made in Matter
of Rosenblatt, supra. Counsel's first contention must be rejected.
   The second issue raised by counsel arises from the fact that the special inquiry officer having granted respondent voluntary departure,
refused, on the ground that he lacked jurisdiction, to comply with
counsel's request that he couple the grant of voluntary departure with
a provision that the respondent must be permitted to stay in the United
States until there had been a ruling upon his application for an adjust-

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ment of status. This contention is more troublesome for it points out
that despite the fact that a special inquiry officer may have given a
respondent in deportation proceedings. voluntary departure, the District Director may nevertheless order the respondent deported before
a decision is made on the merits of a pending application. Counsel
suggests that justice can be done only if a limitation is placed upon
the District Director's power to deport an. alien until the alien's pending application for adjustment of status is decided. Counsel suggests
that the possibility of abuse stemming from deportation of an alien
before a ruling had been made upon an application which would have
permitted him to become a lawful resident of the United States, requires that deportation proceedings be held in abeyance until a decision is made upon a pending application for relief. If, however,
deportation proceedings must be held, counsel contends that either the
decision of the special inquiry officer should be deferred until a ruling
is received upon the application, or the order of the special inquiry
officer finding an alien deportable and granting voluntary departure
should contain a provision preventing deportation before a ruling is
handed down by the District Director upon the application.
  The Service representative states that administrative reasons require
that deportation proceedings be processed to a final conclusion giving
the authorities the right to deport the alien, but that the Service has
pursued a lenient policy with respect to the forcible removal of aliens
who have applications pending. He points out that often there is a
long delay which occurs in ruling upon applications for a waiver
because agencies other than the Service are involved. Finally, the
Service representative contends that the Board has no jurisdiction to
consider the issue arising out of the length of time which an alien
shall be permitted to remain in the United States after the special
inquiry officer has found him deportable, when the only issue involved
is the failure of the District Director to pass upon a pending application for relief. . -
   Although counsel has presented a few situations, some real, some
hypothetical, which in his opinion involved or could involve abuse of
the District Director's power to deport, we do not believe he has
demonstrated that a real problem exists. If there should be an abuse
of discretion, the courts, and this Board (we need not enter into a
question as to our authority to do so at this time) have the power to
see that justice is done. Furthermore, it appears to us that if an alien,
having been found deportable for violation of the immigration laws,
fails to depart in accordance with the provisions of the privilege of
voluntary departure which has been given to him, there should be a
power in the District Director to deport him expeditiously even
though an application for relief may be pending, if the District Di-

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rector, after consideration of the bona fides of the application, the
length of time adjudication will take, the ability of the alien to depart
and return, the probability of the success of the application, and other
pertinent factors, decides that the policy of law will be defeated
unless the alien promptly departs. Such power, like all power is
subject to abuse; however, as we have stated, we have not been shown
that it is the policy to abuse this power and it is uncalled for to assume
                                                           -


that a government official would deliberately abuse this power as a
matter of policy. Furthermore, the Service representative has assured us that the power is leniently used.. We believe the appeal
should be dismissed without prejudice to reconsideration if the application for the waiver is favorably acted upon.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed without prejudice to reconsideration if the application for
the waiver is favorably acted upon.




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