Interim Decision #2081
MATTER OF SOLIS-DAVILA
In Deportation Proceedings
A-10816558
Decided by Board April 28, 1971
The departure foreign of an alien while an order of deportation was outstanding effectively executed that order notwithstanding a petition for review of the deportation order under section 106 of the Immigration and
Nationality Act, as amended, was pending at the time of departure.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))—An alien
who at time of entry was excludable as one who
had been arrested and deported, consent to apply
or reapply for admission not having been granted
by the proper authority under section 212 (a) (17)
of the Act.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Joseph J. Rey, Esquire William F. Weinert
543 Magoffin Avenue Trial Attorney
El Paso, Texas 79901
Respondent, through. counsel, appeals from an adverse order of
the special inquiry officer dated February 16, 1971, directing deportation to Mexico on the charge set forth above.
Respondent was first ordered deported by a decision of the special inquiry officer dated May 25, 1970, on the ground that he had
entered the United States without inspection. Section 241 (a) (2)
of the Immigration and Nationality Act (8 U.S.C. 1251 (a) (2)).
On appeal, this Board entered an order dated June 18, 1970
dismissing the appeal. The following month, respondent filed a
petition for review of that order in the United States Court of
Appeals for the Fifth Circuit. Respondent was thereafter located
in Mexico on or about September 11, 1970, allegedly preparing to
smuggle aliens into the United States. He reentered the United
States and deportation proceedings were again instituted and respondent was found deportable on the charge set forth above. Re-
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Interim Decision #2081
spondent was also convicted on September 25, 1970 in the United
States District Court in El Paso, Texas. He was adjudged guilty
for having committed the offense of having unlawfully transported and removed aliens who had not been duly admitted by an
immigration officer of the United States and were not lawfully
entitled to enter and to reside within the United States, in violation of Title
(a) (2). Respondent was sentenced to serve a term of imprisonment for a period
of six months and placed on probation for a period of five years.
(Ex. 3).
Counsel contends that respondent is not deportable because of
his departure foreign while the Board's order of June 18, 1970
was in effect and that his subsequent entry does not support an
order of deportation. Counsel further contends that there was no
final order of deportation with respect to the original proceedings, in that no order had been entered by the Court of Appeals
for the Fifth Circuit prior to his departure.
It is clear the respondent departed while the Board's order of
June 18, 1970 was in effect and under review in the Court of Appeals pursuant to section 106(a) of the Immigration and Nationality Act. As a result, enforced deportation was precluded by section 106(a) (3) of the Immigration and Nationality Act. The fact
is that the filing of the petition for review did not affect the deportation order under review and there is no judgment of the
Court of Appeals affecting the Board's order. Accordingly, the alien's departure while the order of deportation was outstanding
effectively executed that order. Section 101 (g) , Immigration and
Nationality Act.
Counsel presented no authority in support of his position that
respondent's subsequent entry does not support an order of deportation. We affirm the order of the special inquiry officer dated
February 16, 1971. We find counsel's other contention to the effect
that respondent was not given an opportunity to crossexamine
the witnesses without merit.
ORDER: It is ordered that the appeal be dismissed.
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