LOPEZ

 Interim Decision #2224




                              MATTER OF LOPEZ

                         In Deportation Proceedings

                                   A-20522662
                                   A-20522648

                     Dioided by Board Aucgust 30, 1973

 Request to proceed with the filing of appeal in forma pauperis should be
  accompanied by a supporting statement disclosing sufficient details for a
  proper assessment of the claim of poverty. An attorney representing an alien
  who can afford to pay him a substantial fee should not represent to the Board,
  explicitly or tacitly, that his client is unable to pay the modest appeal-filing fee
  unless he is satisfied the request for filing of appeal in forma pauperis is made
  in good faith.
 CHARGE:
  Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2)]—After admission as
                       nonimmigrant under section 101(a)(15)—remained
                       longer than permitted.
 ON BEHALF OF RESPONDENTS: H. Patrick McGarry, Esquire
                           714 W. Olympic Blvd., Suite 428
                           Los Angeles, California 90005


  This is an appeal from an order of an immigration judge finding
the respondents to be deportable and granting them the privilege
of voluntary departure. The appeal will be dismissed.
  Respondents are aliens, husband and wife, natives and citizens
of Mexico, who were admitted to the United States as nonimmigrant visitors on or about November 6, 1972 and remained longer
than permitted. At a joint hearing before an immigration judge on
July 10, 1972, at which they were represented by present counsel,
they admitted the truth of the factual allegations of their respective orders to show cause but denied deportability. The immigration judge found them to be deportable and granted them the
privilege of departing voluntarily on or before August 10, 1973.
They appealed.
   The Acting District Director, asserting that the appeal is frivolous and following the procedure suggested in Matter of Gamboa,
Interim Decision No. 2176 (BIA,1972), has promptly forwarded the

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 records without delaying to transcribe the hearing. In an accompanying memorandum, he has set forth the basis for his conclusion that the appeal can be adequately considered without a
 transcript. We are satisfied from the materials before us that we
 do not need's transcript to adjudicate this appeal.
    Two grounds for appeal are set forth in the notice of appeal. The
 first is that the respondents have a minor child born in the United
 States whose constitutionally-guaranteed rights to parental care
 would be violated if the respondents are required to depart. The
 short answer is that whatever rights the child may have under
 the Constitution do nut authorize the respondents to remain here
 in violation of the immigration laws. The respondents have it
 within their own power to avoid the alleged hardship that would
 befall the child on separation by taking the child with them when
 they depart.
    The second ground of appeal, charging that the statutory distinction between natives of the Eastern and Western Hemispheres
 in visa allocations violates constitutional limitations, is beyond our
 power to adjudicate, Matter of Chavarri-Alva, Interim Decision No.
 2188(BIA, 1973).
   One further item should be mentioned. The notice of appeal was
  filed without prepayment of the required fee. Instead, counsel
  submitted the respondents' joint affidavit to prosecute the appeal
 without prepayment of fee under 8 CFR 3.3(b). The affidavit is nn
 what appears to be a printed form, with filled-in blanks stating the
. names of the respondents, the date of the order appealed from, the
 date of the jurat and the name of the notary. All that appears
 with respect to the respondents' inability to pay the prescribed fee
 is the conclusory printed statement that, "Because of my poverty I
 am unable to pay the required fee."
   In his memorandum transmitting the record to this Board, the
Acting District Director has questioned the bona fides of the
affidavit, alleging that information in the Service's administrative
file reflects that the male respondent is employed at a weekly
salary of $150.1 We thereupon wrote counsel, requesting further
details as to the respondents' alleged inability to pay, including the
amounts they have paid (or obligated themselves to pay) for
representation during the deportation proceedings and on this
appeal. The requested details have not been supplied. Instead,
counsel has paid the fee.

   Under 8 CFR 3.3(b), the certification as to the good faith of the application
should have been made by the immigration judge, since his is the decision from
which the respondents have appealed. In view of the fact that the fee has now
been paid, this deviation from the regulation is of no consequence.

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  We call attention to this development because we wish to
emphasize the fact that we rely in a large measure on the
professional integrity of counsel in assessing their forwarded
requests for leave to proceed in forma pauperis. The salutary
provisions of 8 CFR 3.3(b) were designed to preserve the rights of
persons unable to afford the customary filing fees. Ordinarily, we
receive such requests from attorneys or others who represent the
             ,


alien without fee for their professional services. An attorney
representing an alien who can afford to pay him substantial fee
should not represent to this Board, explicitly or tacitly, that his
client is unable to pay the modest filing fee unless he is satisfied
that the application is made in good faith. And if he is so satisfied,
he should disclose to this Board sufficient details so that we may
properly assess the claim of poverty. An attorney who lightly files
such an affidavit in the hope of augmenting his return from the
case by the amount of the filing fee, and then ultimately pays the
fee rather than divulge further details, not only involves the case
in unnecessary delay; he also opens the door to speculation as to
his professional ethics.
  ORDER: The appeal is dismissed.
  Further ordered: Pursuant to the immigration j udge's order,
the respondents are permitted to depart from the United States
voluntarily within 31 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 of failure so to depart, the respondents
shall be deported as provided in the immigration judge's order.




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