VOLOS

Interim Decision 4t1687




                             Mawr= or VOLOR •

                       In Deportation Proceedings
                                 A-11587815
                  Decided by Board January 23, .1967
Neither the Board of Immigration Appeals nor Cie special inquiry officer has
   jurisdiction to consider in deportation proceedings the validity of the 1960
   older entered by the District Director rescinding respondent's adjustment of
 - status granted under section 245 of the Immigration and Nationality Act, as
   amended.
CHARGE
  Order: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
                      at time of entry--section 212(a) (20)—no immigrant
                      visa.
ON BEHALF OF RESPONDENT :               ON Bansis or &swim:
  Harold D. Safi; Esquire                  Irving A. Appleman
  15 Maiden Lane                           Appellate Trial Attorney
  New York. New York 10038


   Respondent's appeal from the order of the special inquiry officer
finding him deportable on the ground stated above and granting him
voluntary departure will be dismissed.
   Respondent, a 28-year-old male, a native and citizen of Greece, admitted as a crewman on March 15, 1958, deserted the vessel and married a United States citizen. He applied for adjustment of status
(section 245 of the Act) on March 25, 1959. The Service granted his
application on April 23, 1959. The Service notified respondent on
May 16, 1960 that it proposed to rescind the adjustment—the Service
believed that respondent obtained his adjustment on the basis of a
fraudulent marriage. Respondent hired an attorney who by letter
dated June 13, 1960 asked for an opportunity to present respondent's
case. The Service notified counsel on June 17, 1960 that an interview
was set for June 23, 1960. Counsel and respondent did not appear. On
June 27, 1960, counsel was telephonically advised to appear -with the
alien on July 1, 1960. Neither counsel nor the respondent appeared
on this date. The District Director entered an order rescinding the

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                                               Interim Decision. #168T
adjustment of status and on July 21, 1960 addressed letters to respondent and counsel advising them respondent's status had been rescinded
Counsel's copy of the letter was delivered; respondent's copy, sent
by certified mail, was returned to the Service as undeliverable. Respondent had moved a month or two after hiring his attorney. He
thought that his attorney had told him that rescission proceedings had
terminated favorably in his favor.. After receiving the advice, he did
not agiin see his attorney. He did not file a change of address card..
He thought it was unnecessary to do so as he was a. permanent resident,
and had an alien registration card.
   In March 1965, respondent returned to the United States after ir
short stay in Mexico where he went to obtain a divorce. Sometime in
1965, he applied for naturalization and then discovered that he was
considered illegally in the United States. Deportation proceedings
were started on June 10, i965.
   ReSriOndent is charged in deportation proceedings with having entered the United. States without a visa on his return from Mexico in
1965. Counsel contends respondent did not need a visa upon this return
because he had the alien 'registration card on which a legally resident
alien can return to the United States and respondent must be considered a legally resident alien since the rescission, proceedings were
invalid because of procedural defects, the lack of due process, the
failure to permitte. present his .case and to,eiarnine the evidence
against hini, •a4 thelabsence. ctf basis for rescission
  the apecial'inquiry 'cikeirr while permitting counsel to make his
statement as to the rescission *weeding for the record., rePsed to
                   c
Ciiiiiider; airy' atta k' on the validity of the proceeding. 'The special
inquiry officer pointed out that if it could be reopened, there would
come into play the statutory provision barring the rescission of an
adjustment of status after the passage of five years. Thus, even though
 a, justifiable case for rescission were established by the Service upon
the reopened hearing, it would be prevented from rescinding the adjustment. The appellate trial attorney also contends that since the
Service is content to stand upon the rescission record, respondent can
obtain review by requesting the District Director to reconsider the
rescission proceeding or by obtaining judicial review. He contends
that neither the Board nor the special inquiry officer has jurisdiction
to review the validity of the rescission proceeding.
    We do not believe that either we or the special inquiry officer have
the jurisdiction to consider the validity of the rescission proceeding
under the circumstances of this case. Under the regulations in effect
at the time of the rescission, the order in a rescission proceeding was
made by the District Director. (Appeal, if any, was to the Regional

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Interim Decision #1687
 Commissioner.) (

 (1957), 

 (1958).) No regulation ever made the decision of the District Director that of the
Board.
   A reconsideration of the District Director's decision must be made
under present regulations. These regulations provide that a motion for
reopening or reconsideration of a rescission proceeding is to be decided ". . . by the officer who has the jurisdiction over the proceeding
or who made the decision." (8 CFR 103.5, 246.8, revised as of January
1, 1965.) There is no rescission proceeding pending over which we have
jurisdiction. The rescission decision was made by the District Director;
an administrative reconsideration of the rescission order can be made
only by him. Under the circumstances of this case, we are bound by
the order rescinding the adjustment of status (see Matta?. of DeG--,
8I. &N. Dec. 325).
   After the adjustment of status was rescinded, respondent was not
a legally permanent resident. Upon his return to the United States
from Mexico, he was making an "entry." He was then required to
present a visa in order to obtain admission to the United States legally
for permanent residence. Since he was without a visa and since there
was no prejudicial error in the conduct of the deportation proceeding,
we find the charge is sustained.
   Counsel's letter of December 28, 1966 and the Service reply of January 4, 1967 (served on counsel on the same date) have been considered. The evidence establishing that the respondent had no legal status
in the United States when he left for Mexico, and.that he did not have
a visa when he returned is chair unequivOcal and convincing.
   ORDER: It is ordered that the  ' appeal be and the same is hereby
dismissed.




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