RICCIO

Interim Decision #2463




                               MATTER OF RICCIO

                           In Deportation Proceeding
                                    A-14778020
                                    A-14778031
                     Decided by Board January 13, 1976
Administrative discretion in suspension of deportation cases should be exercised without
 reliance on Congressional committee reports as assumed indicators of Congressional
 policy underlying the statute involved (Matter of Lee, 

, modified).
 Discretionary determinations must be based on the circumstances in the case under
 consideration. Favorable and unfavorable factors must be weighed. The method by
 which an al en has prolonged his stay in the United States is a relevant factor.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor
                       remained longer (both respondents)

ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Victor M. Ferrante, Esquire                          George Indelicato
  265 Golden Hill Street                               Appellate Trial Attorney
  Bridgeport; Connecticut 06604


  In a decision dated May 29, 1975, after a reopened hearing, the
immigration judge denied the respondent's applications for suspension
of deportation under section 244(a)(1) of the Immigration and Nationality Act in the exercise of his discretion, but granted the respondents the privilege of departing voluntarily in lieu of deportation. They
have appealed from that decision. The record will be remanded.
   The respondents had been found deportable on April 6, 1967, and had
been granted the privilege of voluntary departure. They did not take an
appeal from that decision, and failed to depart voluntarily. Their departure was nct enforced during the pendency of three private bills filed in
the Congress in their behalf. These bills were not enacted. The respondents were later granted extensions of voluntary departure time, and
again failed to depart. Warrants for their deportation were issued on
February 25, 1972.
  Counsel filed an application for a Writ of Habeas Corpus in the United
States District Court for the District of Connecticut, on August 31,
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                                               interim itiecision /Fce*co

1972. The Service did not act to deport the respondents during the
pendency of the court proceeding. The application for the Writ of
Habeas Corpus was not adjudicated. On February 21, 1973, the
immigration judge denied respondents' motion for reopening and reconsideration. On September 19, 1973, they filed applications for suspension of deportation. The immigration judge granted a motion to reopen
the proceedings, on January 22, 1974, so that their applications for
suspension of deportation could be considered.
   In the reopened proceedings, the immigration judge concluded that
the respondents were statutorily eligible for suspension of their deportation. Before denying their applications, in the exercise of administrative discretion, he quoted certain statements which the Committee on
the Judiciary of the House of Representatives had made in H.R. Report
No. 2151, September 28, 1966, 89th Cong., 2d Session. That report was
almost identical with the report previously filed by the Committee on
the Judiciary (H.R. Rep. No. 1167, October 14, 1965, 89th Cong., 1st
Session), which we had discussed in Matter of Lee, 11 L & N. Dec. 649
(BIA 1966). However, subsequently, in Asimakopoulos v. INS, 

 (C.A. 9, 1971), the court pointed out that the House Judiciary
Committee did not speak for the whole C6ngress, that its 1965 report
was not an effort "to tell the Attorney General how he should exercise
the discretion delegated to him," and that reliance on the Committee
report could effectively preclude the required exercise of administrative
discretion. Our decision in Matter of Lee, supra, was reversed, for
"failure to exercise discretion."
   We hereby recede from that part of our opinion in Matter of Lee,
supra, which assumed that the views expressed in the House Judiciary
Committee report indicated a "Congressional policy underlying the
statute involved." We had not intended to imply that the committee's
report should govern or restrict the exercise of administrative discretion. To the extent that our decision in Matter of Lee, supra, has given
that unintended impression, we hereby modify the decision. Administrative discretion in suspension of deportation eases should be exercised
withot reliance on such committee reports as assumed indicators of
Congressional policy. •
   Discretionary determinations must be based on the circumstances
present in the case under consideration. Favorable and unfavorable
factors must be weighed. The method by which an alien has prolonged
his stay in this country is a relevant factor.
   We shall remand the matter to the immigration judge so that he may
exercise administrative discretion without reliance on the committee
report which he quoted.
   ORDER: The record is remanded to the immigration judge for
further proceedings and a new decision_

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