Interim Decision *1656
MATTER OF ALFONSO'
. .
In Deportation Proceedings
A-13653'753
Decided by Board October 14, 1966
Motion to reopen deportation proceedings for clarification, and ,refutation, of
issues bearing on respondent's eligibility for an immigrant visa and his
return to the united States—namely, possible bigamous marriage and Xraud
or willful misrepresentation in securing a visa is denied since the matters
are peculiarly within respondent's personal knowledge, and are not relevant
to the deportation proceedings but are properly for the consideration of the
appropriate American consul abroad.
DEPORT#BLE Act of 1952—Section 241(a) (1) [8 U.S.C. 1251]—Excludable
by law existing at time of entry (section 212
(a) (20) ; 8 U.S.C. 1182)—No valid immigrant
visa.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251]—Excludable by
law existing at time of entry (section 212(a)
(26) ; 8 II.S.C. 1182)—No valid nonimmigrant
visa.
On August 29, 1966, this Boar dismissed the appear from a
special inquiry officer's order of August 8, 1966, granting the respondent's request for voluntary departure, but providing for his
deportation from the United States to Argentina, alternatively to
Uruguay, on the above-stated grounds, in the event of his failure
to so depart. In so doing, we noted that the only reason given for
the taking of the appeal was that the respondent was not permitted
to refute matters which were allegedly part of his immigration file
and could effectively foreclose his return to the United States. This
is the same reason given for the filing of the present motion.
The record relates to a married male alien, a native and citizen.
of Argentina, who last entered the United States on or about May•,
1966, for an unknown purpose. At the time of said, entry, he,was
not in possession of a valid immigrant or nonimmigrant visa. He
has never been admitted to the United States for permanent residence.
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, Interim Decision #1656
The foregoing establishes the respondent's deportability on the
above-stated grounds, which has been conceded throughout the proceedings. The special inquiry officer has already granted the respondent the privilege of voluntary departure, which was the only
relief requested of him. These aspects of the case still present no
problems.
In the course of the hearing before the special inquiry officer, the
respondent asserted that the Service file relating to him contained
information which might indicate his ineligibility for an immigrant
visa and, concomitantly, his inadmissibility to the United States.
He requested that this information be made available to him so that
he might intelligently and properly pursue his related remedy, to
wit: a waiver thereof. The trial attorney declined to produce the
information, and the special inquiry officer pointed out that those
matters were outside the scope of his jurisdiction and were properly
for consideration of the appropriate American Consul abroad, in
view of the fact that the respondent had to depart from the United
States as he had been authorized to do. We agreed with the special
inquiry officer's ruling in that respect, for the reasons stated in his
opinion.
Specifically, the documents the respondent sought to have made
available to him were those allegedly referred to in the decision of
the District Director at San Antonio, dated February 1, 1966, denying the respondent's application for a waiver of excludability under
seetion ma(i) of the Immigration and Nationality Act (8 U.S.C.
1182) in connection with an application for adjustment of his status
to that of a permanent resident, pursuant to section 245 of that Act
(8 U.S.C. 1255). Attached to the present motion is a copy of that
decision, wherein the District Director indicated that the respondent
had secured a visitor's visa through fraud or willful misrepresentation; that he was married to a citizen. of the United States; that he
was also previously married to one Marta Hake; that he admitted
a marriage by prol3r to Lily Olivera Santa Maria; and that he had
presented no evidence of the termination of his first marriage. He
now asserts that a strong inference. of fraud before the Consul,
and the possibility of a bigamous marriage were factors either
definitely stated or implied in the decision of the District Director.
He indicates that he requested the production of the documents of
the special inquiry officer for the purpose of refuting the allegations
if possible. Secondarily, he sought the information as the basis for
deterimining what excludable grounds might lie that would require
a waiver of excludability. He contends that he should have been
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• Interim Decision #1656
given an opportunity to refute the allegations of the District Director, or if he could not refute them at least resolve the question of
whether a waiver was required and, if so, on what grounds.
Again, the answer is that the issues thus raised are outside the
scope of the jurisdiction of the special inquiry officer and this Board,
and are properly for the consideration of the appropriate American
Consul abroad. The record shows that they are also matters peculiarly within the respondent's personal knowledge. The District Director's decision, which has now been submitted in support of his position, renders it abundantly clear that he was—or should have been—
fully aware of the problems he assorts require clarification.
-Under such circumstances, reconsideration of our prior decision
for the reasons stated is unwarranted. By the same token, as well
as for the reasons set forth in the trial attorney's brief, the judicial
decision relied on by the respondent in support of his request (Rose
v. Woolwine,
) is inapposite. Accordingly, and in view
of the foregoing, we find no reason compelling a change in our prior
decision.
ORDER: It is ordered that the motion be and the same is hereby
denied.
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