VARGAS-MOLINA

                                                 Interim Decision #2069




                       MATTER OF VARGAS-MOLINA

                        In Exclusion Proceedings

                                A-18863065

                   Decided by Board January 8, 1971

 An applicant for admission, whether or not the application is made at a
  land port, and whether or not the special inquiry officer has entered a decision, may not withdraw his application as a matter of right; however,
  the special inquiry officer, in his discretion, may permit withdrawal of an
  application for admission if justice may best be served by permitting the
  withdrawal. [Matter of Estrada-Tena, 

, overruled;
  Matter of Le Floch, Interim Decision No. 1970, modified.]
 EXCLUDABLE: Act of 1952—Section 212(a) (23) [8 U.S.C. 1182(a) (23)]—
                        Convicted of illegal importation of marihuana.
         Act of 1952—Section 212(a) (26) [8 U.S.C. 1182(a) (26)]—
                        Nonimmigrant not in possession of valid visa.
 ON BEHALF OF APPLICANT:                        ON BEHALF OF SERVICE:
  Pro se                                         Irving A. Appleman
                                                 Appellate Trial Attorney


     The special inquiry officer excluded the applicant on the grounds
  stated in the caption and certified the case to the Board for final
  decision. No change will be made in his order.
     This case concerns the right of an applicant for admission to
 withdraw his application before the special inquiry officer enters
 an order in exclusion proceedings.
    The applicant, a 31-year-old single male, a native and citizen of
  Colombia, applied for admission in June 1969 as a nonimmigrant
 visitor for pleasure at San Juan, Puerto Rico. The Service
 learned that his nonimmigrant visa had been irregularly issued
 and that he had illegal possession of marijuana. The Service paroled him into the United States under section 212(d) (5) of the
 Act so that he could be prosecuted for possession of the mari-
. juana. He was convicted on August 14, 1969 in the United States
 District Court for Puerto Rico for illegally importing marijuana.
    A Service officer questioned the applicant on August 14, 1969
 concerning his immigration status. The applicant attempted to

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withdraw his application for admission and stated that he desired
to return to Colombia. However, he was brought before a special
inquiry officer in exclusion proceedings. Here he again sought to
withdraw his application for admission. His request was refused
and he was excluded as we have previously stated.
     The regulations and statutes do not provide for the situation
before us. Three cases must be considered.
     In Matter of Estrada-Tena, 

 (BIA, 1967),
an exclusion hearing, the applicant for admission attempted to
withdraw his application before the special inquiry officer entered
gis decision. We held that the applicant had the right to withIraw his application. We found a practice existed whereby orgiiarily the Service permitted a withdrawal.
    In Matter of Le Floch, Interim Decision No. 1970 (BIA, 1969),
ve held that after the special inquiry officer had entered an order
 d exclusion, the applicant had no right to withdraw his applicaion for admission. We indicated, however, that the board or the
 pecial inquiry officer could, as a matter of discretion, permit the
 vithdrawal of an application for admission if a miscarriage of
 ustice would otherwise result.
    D'Agostino v. Sahli, 

 (5 Cir., 1956), a habeas corus proceeding, involved an alien deported to the United States
 y the Mexican Government. After the United States authorities
 xcluded him, he was turned over to the United States Marshal in
 mnection with a narcotic charge pending against him in New
 *ork City. The court held that a person presented at a port of
 itry, whether voluntarily or otherwise, comes within the excluonary provisions of the Act and that the Service, therefore, had
  e authority to examine him, to exclude him, and to transfer
  stody to the Marshal. The case therefore indicates that once an
  ien comes within the jurisdiction of the Service in an exclusion
  oceeding, he has no right to defeat this jurisdiction by withawing his application for admission.
  An applicant for admission who comes under the Service jurisAion should not have the power to compel the Service to relinish jurisdiction. Consideration of an application calls for
   ocation of Service resources and expenditure of public funds.
  to orderly, expeditious and efficient disposition of an application
    the applicant or to deny permission for such withdrawal. This
    in accord with past practice in which the Service permitted
   thdrawals in some cases and not in others. We therefore rule
   at an applicant for admission, whether or not the application is
   ide at a land port, and whether or not the special inquiry

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officer has entered a decision, may not withdraw his application
as a matter of right. He may be permitted to withdraw his application if justice may best be served by permitting the withdrawal.
  Matter of Estrada-Tema, supra, is overruled. Matter of Le
Flock, supra, is modified insofar as its language is in conflict
with this decision.
  ORDER: It is ordered that no change be made in the special inquiry officer's order.




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