Interim Decision #2598
MATTER OF MANNEH
In Exclusion Proceedings
A-20460984
Decided by Board July 8, 1977
(1) The provision of 8 C.F.R. 236.1 which confers on immigration judges that authority
which is appropriate and necessary for the disposition of cases, does not confer upon him
the authority to entertain an application for adjustment of status under section 245 of
the Immigration and Nationality Act, in exclusion proceedings.
(2) The immigration judge's authority in exclusion proceedings is contingent upon any
limitations found elsewhere in the Act or regulations. With respect to the consideration
of applications for adjustment of status filed under section 245 of the Immigration and
Nationality Act, the immigration judge is only permitted to consider those made by an
alien after he has been served with an order to show cause or warrant of arrest, in
proceedings under section 242 of the Act. Any other alien seeking adjustment of status
under section 245 must apply to the district director. See 8 C.F.R. 245.2(a)(1).
EXCLUDABLE!
Order: Act of 1952—Section 212(a)(20) [8 U.S.0 1182(a)(20)1—Immigrant—no visa
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Richard D. Steel, Esquire Mary Jo Grotenrath
636 Public Ledger Building Appellate Trial Attorney
6th & Chestnut Streets
Philadelphia, Pennsylvania 19106
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members
The applicant appeals from the immigration judge's decision in which
he found that he lacked authority to consider the applicant's application
for adjustment of status. The appeal will be dismissed.
This case was remanded to the immigration judge by order of the
- United States District Court (BD Pa. August 23, 1976) Civil Action No.
76-1903, for a determination of his authority to consider the application.
The immigration judge concluded that he lacked authority. The applicant brought this appeal.
The applicant argues that immigration judges have authority to consider adjustment of status applications by virtue of the regulation which
confers on them in the conduct of exclusion proceedings: that the authorIty which is "appropriate and necessary for the disposition of such
cases," 8 C.F.R. 236.1_ That regulation provides:
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In determining cases referred for further inquiry as provided in section 235 of the Act,
special inquiry officers shall have the powers and authority conferred upon them by the
Act and this Chapter. Subject to any specific limitation prescribed by the Act and this
chapter, special inquiry officers shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the
disposition of such cases
Adjustment of status, he argues, is within the category of a disposition
of the case which is "appropriate and necessary." He cites our decision
of Matter of Ducret, Interim Decision 2483 (BIA 1976) in support of his
argument.
In Matter of Ducret, supra, we found that the immigration judge by
virtue of his authority to take such action "consistent with applicable
provisions of law and regulation as may be appropriate to the disposition
of the case" (8 C.F.R. 242.8(a)) possesses authority to grant nunc pro
tune permission to reapply for admission to an alien in deportation
proceedings who is charged with deportation on the ground that he
reentered after having been deported, without having first secured the
pern .ssion of the Attorney General. The action found to be within the
scope of that "appropriate to the disposition of the ease" in Matter of
Ducret, supra, was not subject to a specific limitation elsewhere in the
Act or regulations, nor was it inconsistent with the Act or regulations.
In Matter of DeG—, 8 I. & N. Dec. 325 (BIA 1959, A.G. 1959), the
Attorney General, discussing the scope of the Board's authority in
exclusion proceedings encompassed by the phrase "such discretion and
authority as is appropriate and necessary for the disposition of the case"
held that the Board's authority over discretionary applications for relief
is both subject to the limitations prescribed by the regulations and
confined to the jurisdiction in which the Board is authorized to operate.
DeG—, involved an application for relief under a different section than
is sought here but like this ease, it involved Service regulations which
proyided that the application be submitted to the District Director. The
Attorney General's holding in that case is applicable here.
The immigration judge's authority in exclusion proceeding granted by
8 C.F.R. 236.1 is as quoted above:
" [s]ubject to any specific limitation prescribed by the Act and this chapter."
We find that in this ease, unlike the situation in Dueret, the au hority
sought to be brought within the scope of the immigration judge's authority is specifically limited elsewhere in the regulations to the District
Directors, with the exception of the cases of aliens who have been
served with Orders to Show Cause, whose applications may be considered only in deportation proceedings.
In pertinent part, the provisions of the regulations which relate to
adjustment of status provide:
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An application for adjustment of status under section 245 of the Act . . „ by an alien
after he has been served with an order to show cause or warrant of arrest shall be made
and considered only in proceedings under Part 242 of this chapter. In any other case, an
alien who believes that he meets the eligibility requirements of section 245 of the Act
. . . and §245.1, shall apply to the district director having jurisdiction over his place of
residence. R 245.2(a)(1).
No appeal shall lie from the denial of an application by the district director but such
denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter. . . . 8 C. F.R. 245.2(a)(4).
The above regulations, which carved out jurisdiction for immigration
judges in deportation proceedings over applications for section 245
relief, were first adopted by amendments to the regulations published
on December 19, 1961, 26 Federal Register 12114. Prior thereto, District Directors had sole authority over these applications. At the time
that the immigration judge's authority was thus enlarged in deportation
[Part 242] proceedings, no provision was adopted (and none has since
been adopted) for enlarging it in exclusion [Part 236] proceedings as
well.
Inasmuch as the immigration judges previously had no authority over
adjustment of status applications, and given that the authority has been
specifically granted in Part 242 proceedings but not in Part 236 proceedings, it cannot be found that the authority extends to immigration
judges in the conduct of Part 236 proceedings. We adhere to our previous holdings in cases in which the issue Id the immigration judge's
authority over adjustment of status applications in exclusion proceedings was raised and rejected, Matter of Zappq, 14 I. & N. Dec. 405 (BIA .
1973), Matter of Wong,
12 I. & N. Dec. 407 (BIA 1967). The regulations
specifically limit the immigration judge's authority (and ours on appeal)
over applications for section 245 relief to those which are filed by aliens
in deportation [Part 242] proceedings. Immigration judges do not have
that authority in exclusion proceedings. Matter of Zappa, supra, Matter
of Wong, supra.
The respondent is a native and citizen of Liberia who presented
himself for admission as a nonimmigrant visitor on June 7, 1972. At that
time his inspection was deferred. On April 30, 1975, he was found
excludable under section 212(a)(20) by the immigration judge. It is
.
alleged that the applicant thereafter married a citizen of the United
States who filed a Form 130 petition on his behalf which was approved
on March 24, 1976. An application thereafter for adjustment of status was
apparently made to and denied by the District Director. The applicant
seeks to renew his application in these exclusion proceedings which were
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reopened by the order of the court. The decision of the immigration judge
was correct that he has no jurisdiction to consider the matter.
ORDER: The appeal is dismissed.
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