FONG

Interim Decision #2280




                            MATTER OF FONG
                       In Deportation Proceedings

                                   A-14214045
                    Decided by Board April 23, 1974
Notwithstanding the contrary position of the United States Court of Appeals for
 the Ninth Circuit (within jurisdiction of which instant case arose) the immigration judge is bound by the decision of the Attorney General in Matter of
 Lee,13 I. & N. Dec.214 (1969), and must find respondent, an alien who entered
 the United States in 1955 without inspection upon a false claim to citizenship,
 ineligible for the benefits of section 241(f) of the Immigration and Nationality
 Act, as amended, and must accept and adjudicate her application for suspension of deportation as a deportable alien.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entered the
                       United States without inspection.
ON BIXIALF Or RESPONDENT:                       ON BEHALF OF SERVICE:
 Robert S. Bixby, Esquire                         Bernard J. Hornbach
 30 Hotaling Place                                Trial Attorney
 San Francisco, California 94111


  This is an appeal by the Service from an order of an immigration
judge adjourning indefinitely the hearing in respondent's case. We
sustain the appeal and remand to the immigration judge for
further hearing.
  Respondent is an alien widow, a native and citizen of China, who
was admitted to the United States on or about January 26, 1955 as
a citizen, without inspection as an alien, on her false claim to
United States citizenship. She has three minor children who are
United States citizens. An Order to Show Cause in deportation
proceedings was issued on January 28, 1974, charging that respondent is deportable under section 241(a)(2) of the Immigration
and Nationality Act as an alien who had entered without inspection.
   At a hearing before an immigration judge on February 15, 1974,
at which respondent was absent but was represented by present
counsel, the latter admitted the truth of the factual allegations of
the order to show cause and conceded deportability. Counsel
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applied for suspension of respondent's deportation under section
244(a) of the Act, on the claim that her deportation would result in
extreme hardship to her three citizen children. The immigration
judge orally continued the hearing indefinitely, without receiving
or adjudicating the suspension application. In the formal written
order before us on appeal, the immigration judge concluded that
he was bound by the decisions of the United States Court of
Appeals for the Ninth Circuit' to hold that termination of the
proceedings is required under section 241(f) of the Act and that as
a nondeportable alien the respondent is ineligible for relief under
section 244(a)(1). The immigration judge pointed out that, pending
ultimate definitive decision on the section 241(f) issue, 250 cases
involving that issue have been held in abeyance, encompassing
both aliens who are and are not otherwise eligible for suspension
of deportation. In keeping with that policy, the immigration judge
ordered that the hearing in this case be adjourned indefinitely.
  The first question presented is whether we have authority to
review such an order of an immigration judge, As to this, the
immigration judge expressed some doubt. (Opinion, p. 3, n. 4). We
are troubled by no such doubt. Under 8 CFR 3.1(b)(2) we have
power Lu review "[d]eciiinis of [immigration judges] in deportation
cases, as provided in Part 242 of this chapter ..." 8 CFR 24221,
governing appeals, places no limitation on the nature of the
decisions we may review_ Tinder R CFR RAM), we are empowered
to "exercise such discretion and authority conferred upon the
Attorney General by law as is appropriate and necessary for the
disposition of the case." The order entered by the immigration
judge in this case, though interlocutory in, form, is far-reaching in
effect and raises an important issue in the administration of the
immigration laws. The question is presented in a setting which
gives it sufficient finality to warrant decision by us at this time.
   The immigration judge also questions whether, in view of his
 physical location within the jurisdiction of the. Ninth Circuit Court
of Appeals, he is not bound to follow the decision of that court in
Lee Fook Chuey v. INS, supra, with respect to section 241(1),
rather than that of this Board in Matter of Perez-Echeuerria,
 Interim Decision No. 2200 (BIA 1973). Under 8 CFR 3.1(g), decisions of the Board, unless modified or overruled by us or the
Attorney General, "shall be binding on all officers and employees
of the Service in the administration of the act." Immigration
judges, though endowed with the power to exercise their own
independent judgment as quasi-judicial officers, are still "officers
and employees of the Service." If they were individually free to
   I See, e.g., Lee Fook Chuey v. INS, 

 (9 Cu. 1971), Perez-Echeverria
v. INS, Cir. No. '73-2186, February 27, 1974).
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 disregard the precedents established by our decisions, the need for
 nationwide uniformity underlying our delegated power of review
 under 8 CFR 3.1(b) would be frustrated and the provisions of 8
 CFR 3.1(g) would be rendered nugatory.
   Moreover, we as well as the immigration judges are bound by
 the decisions of the Attorney General. In Matter of Lee, 

 (A.G. 1969), the Attorney General overruled our prior
holding with respect to section 241(f). He has not accepted as
definitive the later decision in Lee Fook Chuey v. INS, supra.
Therefore, neither we nor the immigration judges may accept it as
definitive. In Reid v. INS, 

 (CA. 2, 1974), the Attorney
General's construction of section 241(1) was recenty endorsed. This
conflict between Courts of Appeals in different circuits should
pave the way for ultimate definitive decision in the Supreme
 Court. Even if certiorari petitions are applied for and granted,
 however, it will be at least a year before a Supreme Court decision
 on the merits can normally be expected. The question confronting
 us is whether, in the interim, it is better to proceed administratively in cases such as respondent's or, as the immigration judge
 has done, hold them in abeyance.
    In essence, the question is one of sound administration rather
 than law. The competing interests involved are the alien's desire,
 on the one hand, to proceed as speedily as may be with his
 application for suspension; and the Government's interest, on the
 other hand, in not expending valuable time and resources in
 processing suspension cases which could abort on a definitive
 ruling in the Supreme Court in the not-too-distant future. On
 balance, we conclude that it is better administration of the law to
 proceed with the suspension applications.
   Since the immigration judge is bound by the Attorney General's
decision in Matter of 

 he should have no difficulty in
finding the alien deportable as a prerequisite to suspension eligibility. The suspension application, once processed and granted,
would be referred to Congress. If, ultimately, the Attorney General's reading of section 241(f) is sustained by the Supreme Court,
the Government will have lost nothing and the alien will have
gained valuable time on his road to permanent residence. And
even if the ultimate decision on section 241(1) requires termination
of the deportation proceedings, the alien will have lost nothing, for
he will not have been prejudiced by any unnecessary delay; and all
the Government will have lost will be the resources invested in the
aborted suspension proceedings. The Service is evidently willing to
take its chances on such an investment, or else it would not have
appealed fawn the immigration judge's decision in this ease.
   Insofar as concerns the other cases referred to by the immigra-
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tion judge, in which the aliens qualify for no form of discretionary
relief from deportation except voluntary departure or possibly
termination under section 241(f), we agree that good administration requires that such cases be held in abeyance pending ultimate
resolution of the section 241(0 issue in the Supreme Court.
   We disregard as obiter dictum the immigration judge's statement (Opinion, p. 16) that, in cases where aliens otherwise eligible
for suspension are in a position to adjust their status by going to
Canada, he would deny such suspension applications as a matter
of discretion. We are satisfied that, when the cases are presented,
the immigration judge will adjudicate each case on its own merits,
without in advance setting up arbitrary generalized standards for
the exercise of his discretion.
   ORDER: The appeal is sustained.
  Further order: The hearing is reopened and the record is
remanded for further proceedings consistent with the foregoing
opinion.




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