Interim Decision #2183
MATTER OF CONCEMO
In EXclusion Proceedings
A-20079513
Decided by Board February 12, 1973
The Board of Immigration Appeals Lacks authority to direct an alien's enlargement on parole under section 212(d)(5) of the Immigration and Nationality
Act.*
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrant—no immigrant visa.
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Maurice A. Reichman, Esquire David L. Milhollan
662 Fifth Avenue Appellate Trial Attorney
New York, New York 10022
(Brief filed)
This is an appeal from an order of a special inquiry officer
excluding the applicant from admission to the United States. The
applicant's inadmissibility is conceded. The only issue raised is
whether this Board has power to direct his enlargement on parole
under section 212(d)(5) of the Immigration and Nationality Act, as
counsel requests. We hold we lack that power. The appeal will be
dismissed.
The facts are not in dispute. The applicant is a 39-year old
married male alien, a native and citizen of Cuba: He sought to .
leave Cuba in 1969 and on February 19, 1970, he received a Cuban
passport valid for five years. lie intended ultimately to come to the
United States, where his mother and one sister were permanent
residents and another sister was a parolee. 1 Unable to qualify for a
1 1 Gordon and Rosenfield, Immigration Law and Procedure, § 6.7a, p. 6-37
(1972 Cum. Supp.): "... A recent problem has been presented by the flight of
many Cubans from the Castro government. About 250,000 of these had reached
the United States by June 80, 1965. Moreover, in 1965 the United States
undertook to receive large numbers of additional refugees from Cuba. Such
Cuban refugees are admitted to the United States either as immigrants or under
a waiver of their nonimmigrant documentary requirements or under extended
(Footnotes omitted).
* Affirmed: 360 F. Supp. 454 (S.D.N.Y., 1973).
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visa for entry into the United States, he obtained successive visas
to enter Spain for ninety-day periods, but was denied permission
to leave Cuba until he had fulfilled a government imposed obligation to perform labor in the fields. He was finally permitted to
depart for Spain on January 27, 1972, leaving behind in Cuba his .
wifeandthrcl,oeyasd.Flwingrv
Spain, he received successive extensions of his permission to
remain there temporarily, the most recent on November 11, 1972.
Receiving word that his mother was seriously ill in New York,
with the assistance of an Italian national he made his way to Italy
and obtained passage on a flight from Rome to New York, arriving
December 17, 1972, when he applied for admission as a visitor.
Because of doubt as to his admissibility, he was detained for a
hearing before a special inquiry officer. His mother had just died
and he was permitted to attend her funeral under safeguards. '
After a hearing at which the applicant conceded he wishes to
remain here as a refugee indefinitely, the special inquiry ,officer
concluded that he is ineligible for a waiver of nonimmigrant visa
and that he is inadmissible as a visaless immigrant. It was
brought out that the District Director, after consultation with the
State Department's Office of Refugee and Migration Affairi, had
refused to enlarge the apPlicant into the United States on parole
as a refugee. The applicant was offered and declined an opportunity to withdraw his application for. admission. The special inquiry
officer ordered his exclusion and deportation and this appeal
followed.
On appeal, counsel concedes that the applicant is ineligible for a
visa waiver and is inadmissible. However, relying on this Board's
decision in Matter of R—, 3 I. & N. Dec. 46 (BIA, 1947), he asserts
that we have power to enlarge the applicant on parole and he asks
that we do so. We conclude that we lack that power. '
Prior to the Immigration and Nationality Act 'of 1952, inadmissible aliens were sometimes enlarged into the United States on
parole temporarily for humanitarian reasons. Parole' was then an
administrative expedient, fashioned out of necessity and without
statutory sanction. As we pointed out in Matter of R—, supra,
parole was a useful device of long standing serving many purposes
and we saw no reason why it should not be available to us as well
as to the Service.
Parole first received statutory sanction in section 212(dX5) of the
1952 Act, which provides as follows:
The Attorney General may in his discretion parole into the United States
temporarily under such conditions as he may prescribe for emergent reasons or
for reasons deemed strictly in the public interest any alien applying for
admission to the United States, but such parole of such alien shall not be
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regarded as an admission of the alien and when the purposes of such parole
shall, in the opinion of the Attorney General, have been served the alien shall
forthwith return or be returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.
In the regulations which went into effect with the 1952 Act, the
Attorney General specifically delegated the parole power to the
Service's District Directors and officers in charge of ports of
entry? Under the current regulation, 8 CFR 212.5(a), it is only the
District Directors who are specifically authorized to wield this
power:
The district director in charge of a port of entry may, prior to examination by
an immigration officer, or subsequent to such examination and pending a final
determination of admissibility in accordance with sections 235 and 236 of the Act
and this chapter, or after a finding of inadmissibility has been made, parole into
the United States temporarily in accordance with section 212(dX5) of the Act any
alien applicant for admission at such port of entry under such terms and
conditions, including the exaction of a bond on Form L-352, as such officer shall
deeM appropriate. At the expiration of the period of time or upon accomplishment of the purpose for which parole was authorized or when in the opinion of
the district director in charge of the area in which the alien is located that
neither emergency nor public interest warrants the continued presence of the
alien in the United States, pirole shall be terminated upon written notice to the
alien and he shall be restored to the status which he had at the time of parole,
and further inspection or hearing shall be conducted under section 235 or 236 of
the Act and this chapter, or any order of exclusion and deportation previously
entered shall be executed. If the exclusion order cannot be executed by deportation within a reasonable time, the alien shall again be released on parole unless
in the opinion of the district director the public interest requires that the alien
be continued in custody.
The Attorney General has never specifically delegated to this
Board direct authority to exercise his parole power. Neither has
he included within our appellate jurisdiction under 8 CFR 3.1(b)
authority to review a District Director's parole determination in
exclusion proceedings. In expulsion proceedings against aliens
already within the United States, on the other hand, our appellate
jurisdiction to review parole determinations is clearly spelled out.
See 8 CFR 3.1(b)(7); 8 CFR 242.2(a), (b); Matter of :iwun, 13 I. & N.
Dec. 457 (BIA, 1969, 1970). We have consistently taken the position
that the parole power Under section 212(dX5) of the Act is not
within the scope of our authority.
Counsel points, however, to the generous quality of the general
authority conferred by the Attorney General on the Board in 8
CFR 3.1(d)(1):
(d) Powers of the Board. (1) Generally. Subject to any specific limitation
prescribed by this chapter, in considering and determining cases before it as
2 See 8 CFR 212.9,
17 F.R. 11486 (December 19, 1952).
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provided in this part the Board shall exercise such discretion and authority
conferred upon the Attorney General by law as is appropriate and necessary for
the disposition of the case.
He contends that the regulation delegating parole authority to
District Directors, 8 CFR 212.5, supra, does not in terms refer to
the powers of this Board or make the District Director's delegated
power exclusive. 3 He argues that the regulation contains no
"specific limitation" on the authority of this Board within the
meaning of 8 CFR 3.1(dX1) and that this Board therefore retains
the Attorney General's parole power. He points out that the text of
8 CFR 3.1(dX1) is substantially the same today as its predecessor
in effect when we decided Matter of R—, supra. 4 If we had parole
jurisdiction under our general grant of the Attorney General's
powers at that time, he argues, we retain that jurisdiction now
under the current counterpart of that grant.
Despite the beguiling simplicity of this thesis, we are satisfied
that it is untenable. In 1947 when we asserted our authority to
grant parole in Matter of R—, supra, the parole power was
unauthorized by statute and there were no regulations defining
its grant. We felt we had as much right as the Service to make use
of this useful administrative device. The 1952 Act changed all that.
Not only did it define and delimit the parole power, but the
Attorney General's implementing regulations specifically delegated the power in terms to Service personnel in charge of ports of
entry. We regard this as a specific limitation on the Board's
hitherto asserted power to grant parole by virtue of the general
authority it had received from the Attorney General. When in 1954
it was concluded that this Board should have jurisdiction to
review detention, bond, and parole determinations made by the
Service in expulsion proceedings, the implementation of our jurisdiction in this regard was accomplished by specific regulation. See
Matter of :iwun, supra. Had it been thought that the Attorney
General's grant of general authority to the Board was broad
enough to cover such determinations of the Service, there would
have been no need for further regulations on the subject.
Moreover, in the nature of things it is singularly appropriate
that the parole power in exclusion proceedings be exercised by
Service personnel at the field office level and not by this Board. As
a quasi-judicial appellate tribunal, we make our determinations on
appeal solely on the basis of the administrative record made in the
Service proceedings. We are ill-equipped to make the inquiries and
3 Compare 8 CFR 243.4, and 8 CFR 244.2, giving the District Director "sole
jurisdiction" of certain determinations and specifically barring appeals therefrom.
4 See 8 CFR 90.3(e),1949 Rev.
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to conduct the investigations needed to make the summary decisions relating to the parole of recently arrived aliens. The problems presented in making those decisions are not legal problems
but are essentially discretionary in nature, frequently involving
rapidly changing considerations of foreign policy. The Service's
field officers on the scene are in the best position to make such
determinations. They have the arriving alien in custody and are
better able to assess the emergency which. is cited as the basis for
enlargement of the alien on parole. They have investigative
facilities and open lines of direct communication with the State
Department and other agencies involved in formulating policies
affecting our foreign relations. 5 We have no such facilities and as a
quasi -judicial tribunal it is undesirable that we embark on such
inquiries of an investigative nature.
We conclude that the Attorney General has not delegated to us,
directly or by implication, his parole authority under section
212(d)(5) of the Act. We have no alternative but to deny the
request for parole. If it should turn out that the exclusion order
cannot be executed by deportation within a reasonable time, a
further application for parole can be made under 8 CFR 212.5(a) to
the District Director.
ORDER: The appeal is dismissed.
5 The Service procedures in considering asylum requests by arriving refugees
are described in 1 Gordon and Rosenfield, Imialgi ation Law and Procedure,
§ 3.17e (1972).
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