RIVA

Interim Decision #1842




                               MATErat OF R1VA

                         In Deportation Proceedings

                                 A-11239287
                    O
                        Decided by Board March, 4,1968
The refusal of the special inquiry ellicor to adjudiente in fleportation proceedings in the case of respondent, who is deportable as a remained longer nonimmigrant, the question of respondent's inadmissibility under section 212
   (a) (22) of the Immigration and Nationality Act should he return to this country, was proper since such a determination was neither germane to the issue
  of his deportability nor to his eligibility for discretionary relief.
ONABGE:
  Order: Act of 1052—Section 241(a) (2) (8        1251 (a) (2)3 —Nonimmigrant
                     representative of foreign information media—remained
                     longer.
ON BEHALF of RESPONDENT:                    ON BEHALF Or SERVICE:
 Elmer Fried, Esquire                        Thomas W. Winnerman
 510 Madison Avenue                          Trial Attorney
  New York, New York 10022                    (Brief filed)


   Respondent, who conceded deportability on the charge in the order
to show cause, applied only for voluntary departure, and was granted
that relief, appeals from the refusal of the special inquiry officer to adjudicate, in these proceedings, the question of whether he is excludable
under section 212(a) (22) of the Immigration and Nationality Act.
The appeal will be dismissed.
   Respondent is a 26-year-old married male alien, a native and citizen
of Peru. The relevant facts are set forth with particularity in the decision of the special inquiry officer and need not be repeated here. It
is sufficient to note that from 1956 to the present, respondent has been
in and out of the United States with at least four different visas. He has
been here as a visitor, a student, a representative of foreign information
media, and twice was admitted for permanent residence. He twice gave
up his permanent resident status for the admitted purpose of avoiding
service in the United States Armed Services. His testimony is that his
reason for the various status changes he made was also to avoid mill-

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tary service, without violating any criminal statutes of the United
States. The basis for such actions was his alleged intention, at all times,
to remain.in this country only temporarily, eventually to return to his
native Peru.
   Now 26 years old and married to an. American citizen, respondent
has apparently decided that be would like to settle, hers permanently.,
As a native of a Western Hemispheie country, he is ineligible to apply
for adjustment to permanent resident status in these proceedings, or
 in any proceedings in the,United Stites. It will benecesiary for him
to leave this country and seek an. immigrant visa at 4 00neigate abroad.
   Inasmuch as a determinatiOn of reepondent's, admits'sibility or excludability under section 212(a) (22) is neither necessary nor relevant
to the issues properly before the 'special inquiry officer in the instant
proceedings, we believe the special inquiry ()facer properly refused
to adjudicate this question. ,We hold further that he was -carp* in
considering respondent's testimony as tohis conduct vii-a-vis military
service, the,draft board, e tc., only in the context of its effect on. whether
or not he was deserving of the discretionary relief he sought. It was
his finding, which we see no reason to disturb, that in view of the
total picture respondent's actions do not warrant a finding that he
is ineligible for or unworthy of a grant of voluntary departure.
   Counsel, who neither argued nor briefed his position on appeal,
stated in the Notice of Appeal:
  • • • where counsel urgently requests such a ruling to be made, [whether
respondent left the United States with the intent to avoid or evade military
service and would thereby be inadmissible under section 212(a) (22)) as a matter of discretion the Special Inquiry Officer—assorolue he has jurisdiction to
make such ruling and assuming it would be germane to the issue—ought in
the exercise of discretion to rule upon it; and that therefore it was in error, in
the instant case, for the Special Inquiry Officer to decline to rule upon the issue
no tendered 4' * 4%1

  We cannot agree with the position taken by counsel. First, the
question was not germane to the issue before the special inquiry officer; whether or not respondent was deportable for having overstayed his authorized period of stay as a representative of foreign
information media is in no way related to whether or not he may be

   s Of interest is the case of Licea Gomez v. Paliod, 193 F. Stipp. 577, decided
                                    -


October 11, 1960, in which the District Court, Northern District of Illinois,
upheld the refusal of the special inquiry officer, affirmed by the Board, to rule
iu exclusion proceedings on whether the applicant was excludable under section
212(a) (22) ; the alien had been refused a visa by the Consul on the basis of
that section, but was charged by the Government with being excludable only
because he was not in possession of a visa. The Court held the special inquiry
officer need go no further than that charge.

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considered emokulable as one who left this country to avoid military
service in time of war or national emergency. Neither is a decision
as to whether ha would be excludable for such conduct, if it is established. that he has been guilty of it, relevant to his eligibility for voluntary departure. On this basis, such a decision by the special inquiry
officer would be a cluttering of the record with &ohm. Further, the
making of such a decision by the special inquiry officer would have
been a purely academic exercise, for the Consul before whom respondent must make his application for a visa would be in no way bound by
such a ruling of the special inquiry officer; see sections 104(a) and
221(g) of the Immigration and Nationality Act.
   The ruling requested by counsel was not germane to the issues herein
and any decision or holding by the special inquiry officer would
settle no legal question and be dispositive of no issue. There was no
error in his refusal to rule on an extraneous question. We, therefore,
hold the appeal from that decision to be without sound legal basis.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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