Interim Decision #2265
MATTER OF VRETTAKOS
In Deportation Proceedings
A-15721298
Decided by Board June 11, 1973 and March 5, 1974
(1) The Board of Immigration Appeals lacks jurisdiction to review on direct
certification a Regional Commissioner's determination of an application for
permission to reapply for admission following deportation since such application does not come within the jurisdiction of the BOard as specified in 8 CFA
3.1(b).
(2) An immigration judge, like the Board of Immigration Appeals, is without
authority in deportation proceedings to grant MOW pro tune permission to
reapply for admission after deportation unless the granting of such application is appropriate and necessary for the complete disposition of the case, and
is without authority to grant advance permission to reapply.
CHARGE:
order: Art of 1952—Section 24.1(a)(2) [8 U.S.C. 1251(&)(2)]—Crewman—ontorod
the United States after being refused permission to
land temporarily.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Rowena L. Vrettakos (respondent's wife) Irving A. Appleman
4500 Cheltenham Drive Appellate Trial Attorney
Bethesda, Maryland 20014
Jack Wasserman, Esquire
1707 "H" Street, N. W.
Washington, D. C. 20006
BEFORE THE BOARD
(June 11, 1973)
The record relates to a married male alien, a native and citizen
of Greece, 32 years of age, who first entered the United States in
1961 as a nonimmigrant crewman permitted to land temporarily
for a period of 3 days, which was later extended to 13 days. He
remained longer than authorized and was subsequently apprehended by Service officers while engaging in unauthorized employment. Deportation proceedings were commenced and he was
found deportable. On November 25, 1961, he left the United States
593
Interim Decision #2265
voluntarily in lieu of deportation. In 1963 the respondent was a
crewman serving aboard a vessel that went to Canada. On May 14,
1963 he deserted his vessel at Vancouver, British Columbia. On
June 16, 1963 he reentered the United States without inspection
by surreptitiously crossing the border near Champlain, New York.
He was apprehended by the Service, and, after a deportation
hearing, was deported to Greece on July 2, 1963.
On March 19, 1970, the respondent was again admitted to the
United States as a nonimmigrant crewman, at Newport News,
Virginia. A conditional landing permit was issued, evidently without knowledge of the respondent's prior deportation. Two days
later, the respondent was apprehended by the Service at a bus
terminal in Newport News when he was about to depart for
Washington, D.C. with a one-way ticket. He was taken into
custody, his conditional landing permit was revoked, he was
returned to his vessel, and his detention on board was ordered
pursuant to section 252(b) of the Immigration and Nationality Act.
The vessel left the United States, with the respondent aboard, but
suffered a collision and returned to port. On March 23, 1970 the
respondent absconded from the ship and entered the United
States illegally.
The respondent married a native-born United States citizen on
May 21, 1971. On July 7, 1971 his wife filed a petition in his behalf
to classify his status as that of an immediate relative of a United
States citizen under section 201(b) of the Act. The petition was
approved on July 17, 1971 and was forwarded to the United States
Consulate at Toronto, Canada, where the respondent intends to
apply for an immigrant visa. The filing of the petition on July 7,
1971 brought the respondent's presence in this country to the
attention of the Service. As a result, on the same day an Order to
Show Cause was issued, charging the respondent with deportability in connection with his illegal reentry into the United States on
March 23, 1970, in violation of section 252(a) of the Act; that is,
after being refused permission to land temporarily as a crewman.
The present deportation proceedings are based upon that charge.
On July 15, 1971 the respondent applied to the District Director
at Buffalo, New York for mow pro tune permission to reapply for
admission into the United States following deportation. The District Director denied the application on September 21, 1971 on the
ground that a favorable exercise of administrative discretion was
not warranted because of the respondent's disregard for the
immigration laws. His decision was appealed to the Service's
Regional Commissioner. On appeal, the respondent asserted that
the District Director had failed to consider that denial would
result in unusual hardship to his United States citizen wire. On
594
Interim Decision #2265
February 11, 1972, the Regional Commissioner affirmed the District Director's denial, in view of what he termed the respondent's
deliberate violation of the immigration laws on at least three
occasions. The Regional Commissioner concluded that the favorable factor of the respondent's marriage to a United States citizen
was not sufficient to override the unfavorable factor of the respondent's history of illegal entries and unauthorized employment.
On April 21, 1972 a deportation hearing was conducted before an
immigration judge in Washington, D.C. During the course of the
hearing the respondent moved to renew his application for nuns
pro tune permission to reapply for admission after being deported.
The immigration judge at first denied the application on the
ground that he did not have the jurisdiction to entertain it, but he
subsequently changed his mind and approved the application. He
found the respondent deportable as charged and afforded him the
privilege of voluntary departure, using Form 1-39. In the margin,
he entered the following notation: "Application for permission to
reapply for admission into the U.S. after deportation is hereby
granted nunc pro tune as of March 18, 1970." It is obvious that the
immigration judge meant the nune pro tune relief to relate to the
respondent's illegal entry on March 23, 1970. That illegal entry is
the basis for the present deportation proceedings.
As an aside, we feel it would have been better practice for the
immigration judge to have rendered a written opinion instead of
merely noting the nunc pro tune grant in the margin of a Form I-
39, which is ordinarily used in very simple cases presenting no
complex issues. However, this is not a crucial matter here, as the
present appeal is concerned with the extent of the immigration
judge's jurisdiction rather than with his reasons for making the
grant.
The Service appealed from that portion of the immigration
judge's order that granted nunc pro tune permission to reapply.
The Service contends that the immigration judge lacked power to
make such a grant because granting nunc pro tune permission
would not make possible the conclusion or termination of the
proceedings.
On July 27, 1972, on motion of the Service's General Counsel, we
remanded the file to the Service to afford the Regional Commissioner an opportunity to reconsider the respondent's application
for nunc pro tune permission to reapply. Additional information
bearing on the respondent's character and behavior had been
obtained by the Service, and the Service felt it desirable that the
Regional Commissioner have an opportunity to review his earlier
decision. The case was remanded pursuant to a stipulation of
595
Interim Decision #2265
counsel providing that "such remand shall be without prejudice to
resubmission of the case to the Board by either party, should the
alien not be granted permission to reapply." The Regional Commissioner, in an order dated December 1, 1972, adhered to his
original decision. The Regional Commissioner "certified" his decision to us.
The first question presented is whether we have jurisdiction to
review the Regional Commissioner's decision, even though he
certified it to us. We conclude that we do not have the power to
review directly a matter within the jurisdiction of the Regional
Commissioner. The regulation dealing with certification, 8 CFR
3.1(c), does provide for certification to us by duly authorized
officers of the Service, including, of course, Regional Commissioners. But that regulation pertains only to matters within our
appellate jurisdiction as set forth in 8 CFR 3.1(b). This is not true
of respondent's application for advance permission to reapply for
admission following deportation. Such an application comes instead under the jurisdiction of the District Director and the
Regional Commissioner, pursuant to 8 CFR 103.1(f) and 103.1(e)(7).
We previously held, in Matter of Sum, 13 I. & N. Dec. 65 (BIA 1968),
that we do not have jurisdiction to review directly a District
Director's determination under section 249 of the Act, because
section 249 cases are not enumerated in 8 CFR 3.1(b). We did note,
however, that we could review the section 249 determination if the
issue arose on appeal from an immigration judge's deportation
order. The Sum case involved a District Director's determination
on a matter not within 8 CFR 3.1(b). The same reasoning applies to
a similar determination of a Regional Commissioner.
We shall, however, regard the case as being restored for consideration on the Service's appeal and adjudicate the appeal because
the stipulation referred to above provided for resubmission of the
case to the Board by either party should the alien not be granted
permission to reapply.
On appeal the Service urges (1) that the Board reaffirm its prior
rulings that an immigration judge has no authority to take action
with respect to an application for permission to reapply for entry
after deportation unless necessary to the final disposition of the
case, and (2) that inasmuch as the grant would not result in
adjustment or termination in the present case, the immigration
judge's grant of such relief be declared a nullity. The Service has
no objection to the remainder of the immigration judge's order.
The respondent, on the other hand, maintains that the action of
the immigration judge in granting the respondent nuns pro tune
permission (1) was within the scope of his authority as conferred
by statute and regulation, (2) was a reasonable exercise of adinin-
596
Interim Decision #2265
istrative discretion, and (3) was consistent with the principle of
maintaining the integrity of the family unit, which is a fundamental policy underlying the immigration laws.
Ordinarily, applications for advance permission to reapply lie
primarily, as we have seen, within the jurisdiction of the District
Director and the Regional Commissioner. In Matter of S—N—, 6 I.
& N. Dec. 73 03IA 1954, AG 1954), it is stated that we do have the
authority to rule on an application for nunc pro tune permission to
reapply, but only in certain cases. That is, our power is to be
exercised only where taking action will completely dispose of a
particular case. The rationale for the decision in Matter of S N ,
— —
supra, was that "it is a basic concept of the Board's appellate
jurisdiction that it must do complete justice for the alien in a given
case, and therefore, must take any action necessary to dispose of
the particular case." •This is in accord with 8 CFR 3.1(d), which
grants to us the power to exercise "such discretion and authority
conferred upon the Attorney General by law as is appropriate and
necessary for the disposition of the case." (Emphasis supplied.)
The same rationale should be applied to the immigration judge,
whose jurisdiction in deportation cases, as set forth in 8 CFR
242.8(a), contains language similar to that relating to the Board
contained in 8 CFR 3.1(d). The immigration judge is given the
power "to take any other action consistent with the applicable
provisions of law and regulation as may be appropriate to the
disposition of the case." (Emphasis supplied.) In neither statute
nor regulation do we fmd any express grant of authority to the
immigration judge to handle applications for advance permission
to reapply. Hence we believe the limitations on the authority of
the Board contained in Matter of S N , supra, are constraints on
— —
the power of the immigration judge as well. Thus, we find that he
also may not entertain an application for nunc pro tarty permission
to reapply unless granting the application would completely dispose of the case.
It is clear that a. grant of nunc pro tune permission would not
completely dispose of the respondent's case. The only relief from
deportation that would terminate his case and in connection with
which the retroactive elimination of a ground of inadmissibility
would be relevant would be adjustment of status under. section 245
of the Act. The respondent, however, who is charged with deportability as a crewman who entered after being denied permission to
land temporarily, is expressly barred from section 245 relief by the
very terms of the statute, which excludes crewmen from its scope.
Hence, the grant of nunc pro tune permission, as of March 18, 1970,
or any other date, would not in any way affect his deportability,
render him nondeportable, or permit termination of the proceed-
597
Interim Decision #2265
ings by allowing him to avail himself of discretionary relief from
deportation. Therefore, we find that we may not entertain an
application for nunc pro tune permission in the present case as it
now stands. See Matter of M—C--, 9 I. & N. Dec. 280, 284 (BIA
1961). By the same token, the immigration judge also lacked
authority to pass on such an application. Consequently, his grant
of nunc pro tune relief was beyond his power and must be
considered a nullity. The Service's appeal will accordingly be
sustained.
In view of the foregoing, there is no need for us to go into the
question of whether the immigration judge's grant of maw pro
tune relief was a proper exercise of administrative discretion. See
GonatlezITimcnez v. Del Guercio,
253 F.2d 420 (C.A. 9, 1958).
Respondent's sole recourse would appear to be to leave the
United States, and, while abroad, to submit a fresh application for
advance permission to reapply to the appropriate United States
Consul, who would then forward the application for decision to the
District Director having jurisdiction over the place where the
deportation proceedings were held, pursuant to 8 CFR 212.2(c).
The following order will accordingly be entered.
ORDER: The Service's appeal is sustained.
Further order: Pursuant to the immigration judge's order, the
respondent be permitted to depart from the United States voluntarily within 30 days from the date of this decision or any
extension beyond that time as may be granted by the District
Director; and that, in the event of failure so to depart, the
respondent shall be deported as provided in the immigration
judge's order.
BEFORE THE BOARD
(March 5, 1974)
The respondent, on July 6, 1973, filed a motion seeking reconsideration of our order of June 11, 1973, in which we sustained an
appeal by the Service, ruling that the immigration judge did not
have authority to grant the respondent nunc pro tune permission
to reapply for admission after deportation because the grant
would not completely dispose of the proceedings. Newly retained
counsel, in his motion, does not dispute our ruling with regard to
nuns pro tune permission to reapply. He contends, rather, that the
immigration judge does have the power to approve, in deportation
proceedings, an application for advance (notnunc pro tune) permission to apply, by virtue of 8 CFR 212.2(g). We do not agree with
counsel's contention and we find no reason to recede from our
order of June 11, 1073. However, we shall amplify our earlier
decision in order to distinguish the factors involved in a grant of
598
Interim Decision #2265
nunz pro tune permission to apply for readmission after deportation as opposed to a grant of advance permission to reapply.
The motion to reopen raised a question not considered by us
when we entered our order of June 11, 1973. At that time we were
not confronted with the issue of whether the immigration judge
had power to grant advance permission to reapply after deportation. We merely reviewed the immigration judge's grant, on April
21, 1971, of retrospective or nuns pro tune permission to reapply.
We ruled that, on the basis of the pertinent precedents, the
immigration judge lacked authority to pass upon such an application, absent a specific grant of authority to do so, because a grant
of nunc pro Wit permission would not completely dispose of the
respondent's case. Even with the mote pro tune grant the respondent would remain deportable, being ineligible, as a crewman, for
adjustment of status under section 245 of the Immigration and
Nationality Act. We held that the immigration judge, like this
Board, had authority to rule on an application for nunc pro tune
permission to reapply only when appropriate and necessary for the
disposition of the case. In effect, we extended the limitations on
our authority set forth in the precedent decision of Matter of S—
N—, 6 I. & N. Dec. 73 (BIA 1954, AG 1954), to apply to the
immigration judge as well.
It will be helpful to clarify our earlier order by pointing out that
the actual application submitted at various times by the respondent was for advance permission to 'reapply—not for nunc pro tune
permission. This is true not only of the application filed with the
District Director and reviewed twice by the Regional Commissioner, but also of the application, on Form 1-212, filed with the
immigration judge on April 21, 1971. In effect, what the respondent did was to seek advance permission, prior to going abroad,
either voluntarily or under an order of deportation. The regulations permit this procedure so that many aliens may know in
advance that they will be permitted to return, and are thus saved
the uncertainty and inconvenience of going abroad before submitting such an application. The immigration judge, upon his own
volition, elected to treat the respondent's request for advance
permission to reapply as one for retrospective or nunc pro tune
permission.
At oral argument before this Board, on January 16, 1973, the
respondent was not represented by counsel but his case was well
presented by his United States citizen spouse. She urged that, in
deportation proceedings, an irregularity in entry, including reentry after deportation without permission to reapply, may be cured
599
Interim Decision #2265
by the discretionary grant of nunc pro tune permission to reapply.'
The case of Gonzalez ,Jimenez v. Del Guercio, 253 F2d 420 (C.A. 9,
1958), was cited as authority for this position, both by the immigration judge (Tr. p. 6) and by the respondent's representative. The
court in that case observed that there was no right to be granted
permission to reapply and that it was restricted to examining the
question of whether there had been an abuse of discretion in
denying the application. The court simply ruled that there was no
abuse of discretion. We fail to see how that case supports the
respondent's position.
The appellate trial attorney, in his memorandum of law dated
June 21, 1972, accurately perceived that what the respondent was
seeking was not nunc pro tune permission to reapply for admission, but, in fact, advance permission, so as to waive the disability
arising from his 1963 deportation and from the present deportation proceeding should he fail to depart voluntarily. The appellate
trial attorney cited the regulations providing for seeking advance
permission initially from the District Director, pursuant to 8 CFR
2122(d), with an appeal lying to the Regional Commissioner under
8 CFR 103.1(e)(7). In connection with its appeal from the immigration judge's order, the Service maintained that the immigration
judge's grant of nunc pro tune permission to reapply was not
proper because the grant would not result in termination of the
proceedings. As the Board said in its earlier order of June 11, 1973,
the grant of nunc pro tune permission would be within the scope of
an immigration judge's authority if it would conclude the proceedings before him. This might be true in the case of an alien in
deportation proceedings (1) whose sole ground of deportability is
under section 241(aX1) of the Act, as an alien excludable at entry
under section 212(aX17) for reentering the United States after
deportation without first securing the permission of the Attorney
General; or (2) who seemingly qualified for adjustment of status
under section 245 of the Act, except for his inadmissibility as an
alien who was deported.
In our earlier order, we addressed ourselves only to the second
possibility. To clarify our holding conceptually, we shall now deal
with both. We find, however, that the respondent does not come
within either category.
First, with respect to a nunc pro tune grant that eliminates a
deportation charge, we note that the respondent was not charged
with being deportable under section 241(a)(1) by virtue of inadmissibility under section 212(a)(17). He could have been so charged
although he was not. Even if he had been, any other charges
1 The respondent's representative stated, incorrectly (page 11 of transcript),
that the respondent was not asking for advance permission to reapply.
600
Interim Decision #2265
lodged against him would have remained, unless waived. He was
actually charged, and found deportable, under section 241(aX2), as
an alien in the United States in violation of law, having entered as
a crewman after being denied permission to land temporarily.
There is no provision in the law for a waiver of this ground of
deportability. Consequently, a vane pro tune grant relating to his
deportability because of inadmissibility under section 212(aX17)
would not have eliminated the ultimate ground of deportability in
his ease.
Second, paving the respondent's way for adjustment of status
under section 245 of the Act by removing a ground of inadmissibility would be possible only if so curing the respondent's inadmissibility by virtue of his reentry after deportation would, in and of
itself, render the respondent statutorily eligible for consideration
for the discretionary relief of adjustment of status. As we pointed
out in our earlier order, the respondent was barred from section
245 relief for the underlying reason that he is a crewman, and all
crewmen are statutorily excluded from adjustment. Accordingly,
nunc pro tune permission to reapply after deportation would not
have removed the final obstacle to seeking adjustment. Consequently, a "WW7te pro tunic grant would not have enabled the
complete disposition of his case. Therefore, we hold that neither
avenue under which a grant of nunc pro tune permission could
have been made was open to the respondent.
Inasmuch as a grant of nunc pro tune relief could not wrap up
the respondent's deportation proceedings, we held, on June 11,
1973, that the immigration judge did not have authority to make
such a grant. We accordingly sustained the Service's appeal. At
the time, we did not consider the other issue now introduced by
counsel, namely whether the immigration judge had the power to
grant advance, as opposed to retroactive permission to reapply
after deportation.
Counsel's motion for reconsideration reflects some confusion as
to the distinction between nunc pro tune and advance permission
to reapply. The motion states that the Board's order of June 11,
1973 ruled that "the power (of an immigration judge] to take
action as may be appropriate to the disposition of the case did not
include advance permission to reapply after deportation unless
granting the application would completely dispose of the case."
This overlooks the fact that our order of June 11,1973 was directed
solely to the issue of nunc pro tune, not advance, permission to
reapply. As was mentioned above, the issue of the authority of the
immigration judge to grant advance permission was not dealt with
in our earlier order.
Counsel maintains that the immigration judge's decision should
601
Interim Decision #2265
be permitted to stand because, under 8 CFR 2122(g), he had
"jurisdiction." Counsel's reading of 8 CFR 212.2(g) is incorrect. The
regulation itself starts off by stating it is applicable "except in the
case of an applicant seeking to be granted advance permission to
reapply." Thus, by the very language of the regulation, it confers
no power upon the immigration judge where an advance grant of
permission to reapply is sought.
The respondent is deportable and he must leave the United
States, whether voluntarily or under an order of deportation. He
will remain inadmissible, even if he departs voluntarily, because of
his deportation in 1963, unless he secures the permission of the
Attorney General to reapply for admission. As we noted in our
order of June 11, 1973, the respondent's sole recourse would appear
to be to journey abroad, and, while there, make a fresh application
with the appropriate United States Consul, who will forward the
application to the Service.
It is clear from the regulations that determinations as to
advance permission to reapply are reserved to the District Director, with review by the Regional Commissioner. We conclude,
therefore, that not only did the immigration judge lack the power
in this case to approve a nunc pro tune grant of permission to
reapply, but he also lacked power to grant advance permission.
The respondent's motion for reconsideration will be denied, and
our order of June 11, 1978 will stand, except as modified by our
decision herein.
Once the respondent leaves the United States, an application for
advance. permission to reapply for admission will no longer be
timely. The advance permission option is reserved for aliens who
are still physically present in the United States. Although the
District Director denied his application for advance permission,
and the Regional Commissioner twice upheld the denial, the
respondent is free to renew his application for permission to
reapply after he leaves the United States, this time not in
advance, not maw pro tune, but contemporaneously, with the
District Director hating jurisdiction over the port of entry selected. See 8 CFR 212.2(e)
ORDER: The motion for reconsideration is denied.
602
