Interim Decision #2176
MATTER OF GAMBOA
In Deportation Proceedings
A-19921314
A-19924404
Decided by Board December 7, 1972
Where it appears that an attempted appeal to the Board of Immigration Appeals
is frivolous, or is otherwise subject to summary dismissal for lack of jurisdiction or other reason, the notice of appeal should not be rejected but should be
forwarded to the Board for decision on the threshold isssue of appealability.
To avoid unnecessary delay in such cases, the record need not ordinarily
include a transcript of the hearing but should include the order to show cause,
the special inquiry officer's order, the exhibits, the notice of appeal, and a
memorandum from the District Director setting forth the basis for his belief
that the appeal should be summarily dismissed.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entry without
inspection (both respondents).
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Otto F. Swanson, Esquire Charles Gordon
215 West Fifth Street General Counsel
Los Angeles, California 90013
The record before us presents an important question of procedure which should be resolved.
The material facts are not in dispute. The respondents are
husband and wife, aged 24 and 20, respectively, both natives and
citizens of Mexico. They both last entered the United States
without inspection in February 1972 with the paid assistance of a
smuggler. The husband had entered illegally twice before, the first
time in 1969. He was granted voluntary departure that year but
returned illegally shortly thereafter in February 1970 with the aid
of a paid smuggler. He returned to Mexico in November 1971 and
reentered with his wife not long thereafter in February 1972,
when both were smuggled in.
At the deportation hearing before the special inquiry officer on
July 31, 1972, at which respondents were represented by present
counsel, they admitted the truth of the factual allegations in their
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respective orders to show cause, conceded deportability, and applied for the privilege of voluntary departure. In his oral opinion
at the close of the hearing, the special inquiry officer commented
on the husband's adverse immigration history and stated that if
the husband's case alone were before him, he would have no
hesitancy in denying voluntary departure. Noting the wife's
youth, her lack of a previous immigration history, and the fact
that she was expecting a child in September 1972, the special
inquiry officer concluded that both respondents should be granted
the relief sought and authorized voluntary departure on or before
August 31, 1972. Counsel reserved the right of appeal to this
Board, but was informed that in view of the voluntary departure
grant no appeal would lie under the exception to 8 CFR 3.1(bX2). 1
Notwithstanding this advice, on August 10, 1972 counsel for
respondents filed with the Service a notice of appeal to this Board
on the appropriate form and paid the required fee. The stated
reasons for the appeal, which are quoted in the margin, did not
refer to the amount of voluntary departure time. 2 Oral argument
before this Board was not requested. By letter dated August 14,
1972, the District Director returned the notice of appeal to counsel
"Din accordance with the provisions of 8 CIE, 3.1(bX2)." Counsel
sent the notice of appeal back, with a letter which stated, in part:
8 CFR 3.1(bX2) relates to appeals wherein the sole ground of appeal is that a
greater period of departure time should have been fixed. You will note that
these appeals are to the findings of the Special Inquiry Officer and not to the
time fixed for departure.
The Service again rejected the notice of appeal. In a letter to
counsel dated August 24, 1972, the Acting District Director stated,
in part:
The matters referred to in your [notice of appeal] are confusing in that they do
1 8 CFR 3.1(b): Appellate jurisdiction. Appeals shall lie to the Board of
Immigration Appeals from the following: …
(2) Decisions of special inquiry officers in deportation cases, as provided in
Part 242 of this chapter, except that no appeal shall lie from an order of a special
inquiry officer under § 244.1 of this chapter granting voluntary departure within
a period of at least 30 days, if the sole ground of appeal is that a greater period of
departure time should have been granted.
2 This appeal is to the findings of the Special Inquiry Officer that the male
respondent is not worthy of a grant of voluntary departure by virtue of having
been "smuggled into the United States."
Inasmuch as this was the sole "adverse" factor, such finding constitutes an
abuse of discretion. Entry in this manner is not relevant to an application for
such relief.
To allow the record to so stand will operate to prejudice future applications for
benefits. The humanitarian aspects presented in the hearing should have
resulted in a grant of the relief requested without the findings described above.
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not reflect the true picture of what transpired during the deportation hearings
of the above-named respondents.
Your clients admitted all allegations and conceded deportability and requested
voluntary departure. The [Special] Inquiry Officer rendered a summary decision
on Form 1-39, and granted thirty (30) days voluntary departure. The only
"findings of facts" which appeared on the record, are that the respondents have
been found deportable, and were granted the relief requested.
Counsel thereupon sent the notice of appeal and related correspondence direct to this Board. At our request, the Service's
General Counsel has supplied us with the administrative record
and a statement of his views. Counsel has been afforded the
opportunity to respond, but has not done so. The administrative
record does not contain a transcript of the deportation hearing but
we do not need it for purposes of the issues confronting us.
We are aware that frivolous appeals are sometimes taken to this
Board solely for purposes of delay and we have frequently expressed our disapproval of such tactics. See, e.g., Matter of Holguin,
13 I. & N. Dec. 423 (BIA, 1969). "Delay as an end in itself, whether
achieved by obstructionism or dilatory tactics, cannot in our view
be considered a legitimate object," Matter of Lagui,
13 I. & N. Dec.
232 (BIA, 1969), affirmed Laqui v. INS,
422 F.2d 807 (C.A. 7, 1970).
Because of the automatic stay pending appeal afforded by 8
CFR 3.6(a), the mere filing of a notice of appeal can in many cases
provide the opportunity for long delay. In many Service districts
such as Los Angeles, where there is an acute clerical shortage, the
problem is aggravated by the large backlog of hearings awaiting
transcription before the records on appeal can be forwarded to this
Board. In such a situation, an attorney intent on delay can abuse
the appellate process and obtain a long delay by the simple
expedient of filing a tithely notice of appeal to this Board, paying
the modest fee, and expressing some seemingly plausible ground
for appeal, regardless of how lacking in merit the record ultimately
reveals the appeal to be. It was to restrict these opportunities for
abuse that our regulations were recently amended,
36 F.R. 316
(January 9, 1971). One of the important changes was the elimination of the right of appeal altogether under the circumstances
stated in the exception of 8 CFR 3.1(bX2), footnote 1, supra.
Where it appears to a District Director that an attempted appeal
comes within that provision or is otherwise subject to summary
dismissal for lack of jurisdiction or other reason, it seems to us
that the proper procedure is to have him forward the record to us
for review as promptly as possible. To avoid unnecessary delay,
the record need not ordinarily include a transcript of the hearing if
the District Director is satisfied the issue can adequately be
presented without it. The record should include the order to show
cause, the special inquiry officer's order, the exhibits, the notice of
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appeal, and a memorandum from the District Director (a copy of
which should be served on counsel) setting forth the basis for his
belief that the appeal should be summarily dismissed. If we should
conclude that a transcript of the hearing is necessary for the
proper disposition of the case, we would request it.
Even where the District Director believes the appeal is frivolous
or is otherwise subject to summary dismissal, he should not
ordinarily take it upon himself to reject the notice of appeal.° In
handling the preparation and transmittal of records on appeals
under Part 3 of 8 CFR, the Service acts for the Board. Regardless
of the insubstantiality of an appellant's contentions regarding
appealability, when he refuses to accept Service advice that a case
is nonappealable the correct procedure is to refer the record to the
Board for decision on the threshold issue of appealability. It is
improper, in our view, to deny the party access to the Board after
he has expressed unwillingness to accept the Service's advice. We
believe that questions as to the Board's jurisdiction should be left
to the Board itself for decision.
To discourage dilatory appeals, we shall continue, as heretofore,
to adjudicate such cases on a priority basis. In transmitting the
record in such a case to the Board, the District Director should
appropriately flag it, so that the need for expedited handling is
readily apparent.
As counsel has pointed out, the notice of appeal filed in this case
challenges the special inquiry officer's decision on a basis other
than that stated in the exception to 8 CFR 3.1(bX2). It is true that
some attorneys, actually intent only on delaying the ultimate
departure time, studiously avoid any such statement in the notice
of appeal and manage to contrive a stated ground of appeal which
makes no mention of voluntary departure. The ingenuity and
inventiveness of some attorneys in devising' grounds of appeal
plausible on their face but bearing no realistic relation to the
record is simply astounding. Whatever inferences one may draw as
to the attorney's underlying motivation in such a ease, however,
unless the ground articulated in the notice of appeal comes
squarely within the terms of the regulation, we may not deny our
jurisdiction to adjudicate the appeal. We therefore turn to the
merits of the case before us.
We use the term "ordinarily" advisedly. There will be times when the District
Director will be justified in not sending us a record on appeal even where the
appeal is specifically directed to us. For example, where through misinformation
or the inadvertent use of an improper form (Form I-290A instead of I-290B), an
appeal is taken to this Board instead of to a Regional Commissioner from a sixth
preference visa petition denial, the District Director should direct the record to
the Regibnal Commissioner rather than to us.
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Counsel does not attack the fact findings on which the conclusion of deportability is based or the conclusion of deportability
itself. He is in no position to challenge the denial of any form of
discretionary relief from deportation, for the special inquiry officer
granted respondents the only form of discretionary relief for which
they applied or are eligible, voluntary departure. In essence, what
counsel excepts to is the special inquiry officer's statement that
the male respondent's three illegal entries constitute adverse
factors which would warrant denial of voluntary departure in his
case if it were not coupled with that of his wife. Counsel asserts
that the manner of entry is not a relevant factor in exercising
discretion on an application for voluntary departure; that the
inclusion of such a statement in the special inquiry officer's
opinion will prejudice the male respondent in making future
applications for benefits under the immigration laws; and that the
humanitarian aspects of the case warrant the grant of the requested relief without mention of the manner of entry.
We have considerable doubt whether the male respondent, as
the beneficiary of the special inquiry officer's discretionary grant
of voluntary departure, has standing to question the mental
processes by which the special inquiry officer arrived at his
conclusion that discretion should be favorably exercised. We need
not resolve that doubt. Laying aside the question of standing and
confronting the issues tendered on their merits, we conclude that
the contentions advanced by counsel are completely without substance.
The mere fact that an alien May be eligible for some form of
discretionary relief does not mean that he must be granted that
relief; discretion must still , be exercised, Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957). In exercising discretion on a voluntary
departure application, the special inquiry officer may take into
account many factors, including the alien's prior immigration
history, the nature of his entry or entries (whether as crewman,
stowaway, smuggled alien, alien in transit without visa, etc.), his
violations of the immigration and other laws, and the like, Matter
of M—,
4 I. & N. Dec. 626 (BIA, 1952); Matter of Pimentel, 12 I. & N.
Dee. 50 (BIA, 1967); Matter of Wong, Interim Decision No. 1966
(B IA, 1969). Discretion may be favorably exercised in the face of
adverse factors where there are compensating elements such as
long residence here, close family ties in the United States, or
humanitarian needs, Matter of 5—,
6 I. & N. Dec. 692 (A.G., 1955).
The special inquiry officer acted properly in balancing what he
rightly considered to be adverse factors against the humanitarian
needs of the female respondent and in articulating his analysis in
his written opinion. In clearly stating the reasons for his decision,
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the special inquiry officer carried out the normal responsibilities of
his office. A special inquiry officer's decision is reviewable, on
appeal by either the respondent or the Service, by this Board and
ultimately by the courts. It is proper that he should clearly set
forth the reasons for his decision, so that the respondent and the
Service may be in a better position to appraise the desirability of
appeal and so that a reviewing tribunal may be in a better position
to assess his judgment. We can find no fault with the special
inquiry officer for expressly stating why he did what he did.
ORDER: The appeal is dismisled.
Further order: The respondents are permitted to depart voluntarily in accordance with the terms of the special inquiry officer's
order within 31 days from the date of this order or any extension
beyond that date as may be fixed by the District Director; upon
failure so to depart when and as required, the respondents shall be
deported to Mexico as directed by the special inquiry officer.
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