THORPE

                                                            Interim Decision #2585




                               MATTER OF THORPE

                            In Deportation Proceedings
                                      A-21164857

                         Decided by Board May 24, 1977
(1) Respondent's employer submitted an application for alien labor certification to the
  Pennsylvania State Employment Service. It appears the Labor Department advised the
  Service of respondent's apparent unlawful immigration status and deportation proceedings were instituted under section 241(a)(2) of the Immigration and Nationality Act. At
  hearing, respondent moved to suppress evidence from the labor certification application
  asserting rights under the Privacy Act, 5 U.S.C. 552a, and her employer moved to
  intervene in order to assert Privacy Act claims also. Both motions were properly
  denied.
(2) A deportation hearing is not the proper forum in which to assert privacy act claims
  The Board has no jurisdiction over claims under the Privacy Act. See C.F.R. 3.1.
(2) Respondent has no standing to assert privacy act claims because stae is not a citizen or
  lawful resident alien. See 5 U.S.C. 552a(a)(2).
(4) Whatever the Privacy Act rights of the employer may be, they )have no bearing on
  respondent's deportability.
CHARGE:
  Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}--Nonimmigrant visitor—
                       remained longer.
ON BEHALF OF RESPONDENT: Richard D. Steel, Esquire
                         UN Public Ledger Building
                         Philadelphia, Pennsylvania 19106
$Y: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members


   In a decision dated July 22, 1976, the immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act and granted her the privilege of voluntary departure_
Therespondent has appealed from that decision. The record will be
remanded to the immigration judge for further proceedings.
   According to the Order to Show Cause, the respondent is a native and
citizen of Barbados who entered the United States at N ew York City on
July 7, 1975, as a nonimmigrant visitor for pleasure. She was allegedly
authorized to remain in this country until July 31, 197'5, but remained
beyond the period authorized. At her deportation hearing, the respondent, on the advice of counsel, refused to answer any questions.
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       The record indicates that in January 1976, the respondent's employer
    submitted to the Pennsylvania State Employment Service an application on behalf of the respondent for an alien labor service certification.
    Although it is not entirely clear from the record, it would appear that as
    a result of this application, the State E mployment Service contacted the
    United States Department of Labor which in turn notified the Immigration and Naturalization Service of the respondent's apparently illegal
    immigration status. According to the immigration judge's decision, the
    respondent was then contacted by the Service whereupon she surrendered her Form 1-94, Arrival-Departure Record. Counsel for the respondent, on the other hand, alleges that the respondent submitted her
    Form 1--94 only under protest.
       At her deportation hearing, the respondent claimed that the information contained in the application for certification was protected by the
    provisions of the Privacy Act, 5 U.S.C. §552a, and that the United
    States citizen employer's rights had been violated. Her motion to suppress the evidence based on these alleged violations was denied, as was
    the motion made by the respondent's employer to intervene in the
    proceedings in order to assert Privacy Act claims.
       As pointed out by the immigration judge, the provisions of the Privacy Act of 1974 do not protect aliens who are illegally in the United
    States.' To circumvent this restriction., the respondent apparently Attempted to get her employer to intervene to assert the Privacy Act
    claims. The immigration judge quite properly denied this motion. Whatever may be the rights of the United States citizen employer under the
    Privacy Act, a deportation proceeding is not the proper forum for
    asserting these rights. 2 The rights claimed are those of the employer
    and not of the respondent and, inasmuch as the Privacy Act is limited to
    the United States citizens and lawful permanent resident aliens, 5
    U.S.C. §552a(a)(2), the respondent is cLearly without standing to assert
    these claims. See generally C. A. Wright, Law of Federal Courts §13
    (1970). The rights of the employer have no bearing on the respondent's
    d eportability. The respondent's motion to suppress was properly denied
    by the immigration judge.
       The respondent is a native of the Western Hemisphere and may have
    acquired rights by reason of the Iininigration and Nationality Act
    Amendments of 1976, 

 Stat. 2703, and the court's
    decision in Silva v. Levi, No. 76-C4268 (N.D. El. March 22, 1977). We

   ' In defining what individuals are to be protected by the Act, 5 U.S.C. §552a(a)(2)
defines the term Individual" as "a citizen of the United States or an alien lawfully
adIrnitted for permanent residence."
   2 Clearly, the Board is without jurisdiction to. determine the Privacy Act claims of
United States citizens. 8 C.F.R. 3.1.
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have determined that a remand of the record to the immigration judge
for further proceedings in light of these developments is appropriate.
  Should the respondent be found to be ineligible for relief, or should a
decision on an application for relief be adverse, an appropriate order
shall be entered and the record shall be certified to this Board for
review.
  ORDER: The case is remanded to the immigration judge for further
proceedings consistent with the foregoing opinion.




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