Interim Decision #2364
MATTER OF CRUZ
In Deportation Proceedings
A-19908881
Decided by Board April 3,1975
Deportation proceedings will not be terminated pursuant to 8 CFR 242.7 to 'permit
respondent to proceed in naturalization proceedings, tulles's -the alien establishes prima
fade eligibility for naturalization. Such eligibility may be established by a communication from the Service or a court declaring the alien eligible for naturalization but for the
pendency of the deportation proceedings. [Matter ofHroneich 111. & N. Dec. 193 (BIA
1961 & 1962), and Matter of LaRochella, 11 I. & N. Dec. 436 (BIA 1965), overruled
insofar as they indicate deportation proceedings will be held in abeyance pending
Service rev.ew of a claim to eligibility for naturalization.]
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-
-remained longer.
ON BEHALF us- RbsrODIDENT: Marshall E. Kidder, Esquire
P. 0. Box 4197
Irvine, California 92664
The alier respondent has appealed from the June 19, 1974 decision of
the immigration judge in which the respondent's motion to reopen and
terminate these deportation proceedings was denied. The appeal will be
dismissed.
The respondent is a native and citizen of the Philippines. Deportability is not in issue and the only question on appeal concerns the requested
termination of these proceedings under 8 CFR 242.7.
The pertinent portion of 8 CFR 242.7 provides:
. A special inquiry officer [immigration judge] may, in his discretion, terminate
deportation proceedings to permit respondent to proceed to a anal hearing on a pending
application or petition for naturalization when the respondent has established prima
fade eligibility for naturalization and the case involves exceptionally appealing or
humanitarian factors; in every other case, the deportation hearing shall be completed as
promptly as possible notwithstanding the pendency of an application for naturalization
during any itage of the proceedings.
The respondent's claim to eligibility for naturalization is based on
section 701 of the Nationality Act of 1940. Counsel states that the
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Interim Decision #2364
respondent submitted an Application to File Petition for Naturalization
(Form N-400) in September of 1972. The Service evidently scheduled an
interview for January 11, 1974 in connection with the respondent's
application. Counsel states that the respondent attended the interview,
but that the case was deferred because one of the respondent's witnesses failed to attend. Shortly thereafter the Service notified the
respondent that it deemed him ineligible for naturalization because the
underlying basis for his claim had been rejected by the Supreme Court
in INS v. Hibi, 414 U.S. 5 (1973). The Service then issued an order to
show cause commencing these deportation proceedings, and in a decision dated February 22, 1974, the respondent was found deportable but
was accorded the privilege of voluntary departure.
Counsel for the respondent argues that the decision in Hibi leaves
unresolved several "due process' and "equal protection" questions with
respect to naturalization claims under section 701 of the Nationality Act
of 1940. He seeks to raise these issues in the respondent's case; however, he fears that the outstanding order of deportation would be a bar
to the litigation of the section 701 claim by virtue of the terms of section
318 of the Immigration and Nationality Act. He accordingly requests
termination of the present deportation proceedings.
Prior to the promulgation of 8 CFR 242.7, our power to terminate
deportation proceedings in order to permit an alien to proceed with an
application or petition for naturalization was based solely on the broad
grant of authority in what is now 8 CFR 3.1(d)(1). See Matter of B—,
6
I. & N. Dec. 713 BIA 1955; A.G. 1955). Past Board precedent in this
area, however, established no clear guidelines with respect to the exercise of this power. The prerequisites to termination set forth in 8 CFR
242.7 establish reasonable criteria which we shall employ in resolving
this type of request for termination of proceedings.
The regulation requires that the alien establish prima facie eligibility
for naturalization before a motion to terminate may be granted, Although we adjudicate claims to citizenship and to eligibility for citizenship, if germane to a proceeding within our jurisdiction, neither we nor
immigration judges have authority with respect to the naturalization of
aliens. We will therefore decline to entertain the question of whether an
alien is eligible for naturalization for purposes of termination under 8
Clelt 242.7. We hold that prima facie eligibility may be established by
an affirmative communication from the Service or by a declaration of a
court that the alien would be eligibible for naturalization but for the
pendency of the deportation proceedings or the existence of an outstanding order of deportation.
Matter of Hroncich,
11 I. & N. Dec. 193 (BIA 1961 & 1962), and
Matter of LaRochelle,
11 I. & N. Dec. 436 (BIA 1965), are overruled to
the extent that they indicate -that we will hold proceedings in abeyance
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or order proceedings reopened pending Service review of a claim to
eligibility for naturalization. Continuation of the procedures employed
those cases would require that we make some preliminary determination with respect to an alien's eligibility for naturalization, unless we are
automatically to hold in abeyance or to reopen any case in which termination for naturalization is sought.'
This respondent has not established prima facie eligibility for naturalization as set forth above. The immigration judge's denial of the
motion to terminate was therefore correct. See Matter of Wong, 13 I. &
N. Dec. 701 (BIA 1971).
In his brief on appeal,. counsel appears to consider termination of
these proceedings a prerequisite to raising a court challenge to the
Service's evaluation of the respondent's naturalization claim. However,
we can perceive nothing to prevent counsel from pursuing his case in a
naturalization setting or via an appropriate court action.
ORDER: The appeal is dismissed.
1 See alsoifaffer of Javier,
12 I. & N. Dec. 782 (BIA 1968), to the effect that section 318
will not be invoked as a bar to naturalization proceedings in certain cases, where deportation is predicted solely upon a ground which Congress has decided should pot be a bar to
citizenship for the particular category of aliens involved. In such cases termination of
deportation proceedings is not needed, since the alien can proceed simultaneously with his
petition for naturalization.
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