interim Decision #2210
MATTER OF AMBROSIO
In Deportation Proceedings
A-14516837
A-13'786486
Decided by Board June 8, 1973
(1) Where deportability was conceded, appeal waived, and the original deportation hearing was not transcribed, due process is not violated by refusal to
direct transcription of the original hearing in connection with an appeal from
an order denying a motion to reopen the proceedings, where a transcript is not
required for a proper appraisal of the appeal.
(2) Motion to reopen the deportation proceedings for the purpose of applying for
relief under section 241(f) of the Immigration and Nationality Act, as
amended, is denied, since the benefits of section 241(f) are not available to an
alien admitted as a nonimmigrant visitor who has been ordered deported on a
"remained longer" charge, regardless of the truth of any assertion of fraud at
entry now advanced (Matter of Mangabat, Interim Decision No. 2131, and
Cabueo-Flores v. INS, 477 F.2d 108 (C.A. 9, 1973)).
CHARGE:
Order: Act of 1952—Section 241(4(2) [8 U.S.C. 1251(a)(2)]—remained longer
after admission as nonimmigrant.
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
LLoyd A. Tasog Esquire Joseph A. Shonman
408 South Spring Street Trial Attorney
Suite 1010 —Continental Building
Los Angeles, California 90013
This is an appeal from an order of an immigration judge denying
respondents' motion to reopen the deportation proceedings. The
appeal will be dismissed.
Respondents are aliens, husband and wife, natives and citizens
of the Philippines, who were both admitted to the United States on
or about September 13, 1969 as nonimmigrant visitors and remained longer than permitted. At a joint hearing before an
immigration judge on October 19, 1972, at which they were
represented by present counsel, they admitted the truth of the
factual allegations of their respective orders to show cause and
conceded deportability. The immigration judge found them to be
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deportable and granted them the privilege of departing voluntarily on or before January 19, 1973. Appeal was waived. In accordance with the customary practice when there is no appeal, the
hearing was not transcribed.
On January 18, 1973, counsel for respondents filed a motion to
reopen to consider an application for termination of the proceedings under section 241(f) of the Immigration and Nationality Act.
The motion, which is unsupported despite the requirements of S
CFR 103.5 and 242.22, states merely, "The parties have been told
that they had a preconceived intent to remain in the United
States when they arrived and thus have committed fraud. They
have two United States born citizen children and thus would be
eligible for consideration. We therefore request on their behalf a
reopening of the proceedings." In an order dated February 9, 1973,
now before us on appeal, the immigration judge denied the motion.
He called attention to the fact that at the original deportation
hearing, at which counsel had questioned respondents extensively,
no evidence of fraud had been adduced. In addition, the immigration judge pointed to the respondents' entries as nonimmigrants
and this Board's holding in Matter of Mangabat, Interim Decision
No. 2131 (1972)_
In his notice of appeal, counsel requested a transcript of the
deportation hearing and a reasonable time to submit a brief. In a
letter to counsel dated April 16, 1973, the immigration judge
granted him to April 26, 1973 to file a brief and declined to direct
transcription of the deportation hearing. Counsel persisted in his
request for the transcript. In a letter to counsel dated May 14,
1973, the immigration judge stated that the records on appeal had
been forwarded to this Board and suggested that counsel submit
his brief directly to this Board. In a letter to this Board dated May
17, 1973, counsel asserts that he is entitled, as a matter of due
process, to receive the transcript so that he can prepare a proper
brief on appeaL The records on appeal have now been received,
without a transcript of the deportation hearing.
On an appeal such as this from an order of an immigration judge
denying a. motion to reopen, we review the immigration judge's
order on the basis of the moving papers, the papers in opposition
to the motion, and the administrative record. If the original
deportation hearing has not been transcribed, we do not require a
transcript unless we conclude one is needed for a proper appraisal
of the appeal To require a transcript in every case, regardless of
need, would place an undue burden on the Service and would only
play into the hands of those attorneys who are intent solely on
delay. If a transcript were to be had for the mere asking under
such circumstances, then any alien who had waived appeal to this
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Interim yecision
Board would have it within his own power, when ultimately called
in for deportation, to thwart deportation by the simple expedient
of having his attorney file a motion to reopen and appealing to this
Board from its denial. In Service field offices having an acute
clerical shortage, such as persists in the Los Angeles district, a
delay of many months would ensue and the backlog of cases
awaiting transcription would be dramatically increased. There is
no automatic stay of deportation pending appeal from such an
order, 8 CFR 3.6(b). Due process is not violated if a transcript is
made available under such circumstances on a selective rather
than an automatic basis.
We see no need for a transcript of the original deportation
hearing in order to deal adequately with the issue raised on this
appeal. On the basis of the uncontroverted facts already of record,
it is clear that the immigration judge's order was correct and
conformed to the holdings of the courts and of this Board. The
respondents were admitted as nonimmigrant visitors and have
been found deportable on the charge that they have overstayed.
Regardless of the truth of any self-serving assertion of fraud at
entry they now put forward, section 241(f) does not benefit them,
Cabuoo-Flores v. INS, 477 P2d 108 (C.A. 9, 1973); Matter of
Mangabat, supra.
Counsel has had ample time to prepare a brief on the section
241(f) issue since he filed his notice of appeal. Moreover, we fail to
see how a brief on a record such as this could be helpful to the
Board or could lead to an order other than the one we are now
prepared to enter. If counsel wishes to seek judicial review of our
decision, the record is sufficient for that purpose, in our view,
without a transcript of the deportation hearing.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order,
the respondents are permitted to depart from the United States
voluntarily within 92 days from the date of this order or any extension beyond that time as may be granted by the District Director;
and in the event failure so to depart, the respondents shall be
deported as provided in the immigration judge's order.
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