Interim Decision #2293
MATTER OF LEPOFSICY
In Exclusion Proceedings
A-20127580
A-2059813.9
Decided by Board June 6, 1974
The immigration judges order in exclusion proceedings permitting the inadmissible applicants to withdraw their applications for admission conditioned upon
their departure from the United States within one month was an infringement on the discretionary parole authority vested in the district director
under 8 CFR 212.5(a); such parole authority is lacking to both the Board and
immigration judges.
EXCLUDABLE: Act of 1952 —Section 212(a)(ZO)18 U.S.C. 11.82(a)(20)] —Immi
grants—no visas (both applicants).
ON BEHALF OF APPLICANTS: Ernest C. Lee, Esquire
1430 W. Peachtree Street, N.W.
Atlanta, Georgia 30309
The applicants, husband and wife, are natives and citizens of
Canada who arrived in the United States in 1972 and were paroled
into this country for the purpose of disposing of property here. In a
decision dated September 19, 1973, the immigration judge found
both applicants excludable as charged. He entered an order permitting the applicants to withdraw their applications for admission and to depart from the United States by midnight on October
19, 1973. An alternative order was entered ordering their exclusion
and deportation from the United States in the event of failure to
depart as required. The male applicant has appealed from that
decision. Since the female applicant's name is not on the Notice of
Appeal, we will take her case on certification pursuant to 8 CFR
3.1(c) in order to avoid any jurisdictional problem.
The record clearly shows that the applicants wish to remain in
the United States permanently while the male applicant operates
and cares for his place of business. We agree with the immigration
judge's conclusion that the applicants are immigrants, and are
therefore excludable under section 212(aX20) of the Act because
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Interim Decision #2293
they are not in possession of valid unexpired immigrant visas or
other valid entry documents as required by the Act.
The immigration judge unquestionably had the power to allow
the applicants to withdraw their applications for admission at the
time of the hearing. However, .by entering an order allowing
withdrawal upon departure from the United States within one
month, the immigration judge attempted to authorize the applicants to remain in this country conditionally for that period. Such
an order was an infringement on the discretionary authority of
the District Director under 8 CFR 212.5(a) to parole inadmissible
aliens into the United States under such terms and conditions as
he might deem appropriate.
Both the immigration judge and the Board lack authority to
exercise the parole power vested in the District Director by 8 CFR
212.5 (a). Matter of Conceiro, Interim Decision 2183 (BIA 1973), affd
Conceiro v. Marks,
(S.D.N.Y. 1973). Therefore, the
conditional order entered in this case was inappropriate; the
applicants could have been offered an opportunity to withdraw
their applications at the time of the hearing, and if they declined
to do sn, their immediate exclusion and deportation should have
been ordered. That course would still have left it open to the
District Director, in his discretion, to parole them in pending
execution of the exclusion order.
On appeal, counsel urges that the applicants be allowed to
remain in the United States pending processing of their applications for immigrant visas. We realize that this case presents
sympathetic factors which led the immigration judge to attempt to
fashion some sort of relief for the applicants. However, the authority to stay the deportation of excludable aliens or to allow such
aliens to remain here on parole is vested solely in the District
Director. 8 CFR 237.1; 8 CFR 212.5(a). Consequently, we must
dismiss the appeal and order that the applicants be excluded and
deported from the United States.
ORDER: The appeal is dismissed.
Further order:The order of the immigration judge is withdrawn.
Further order: The applicants are excluded and shall be deported from the United States.
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