16 I. & N. Dec. 463 - CRUZ

Interim Decision nOtio

MATTER OF CRUZ

In Exclusion Proceedings

A-20893002
Decided by Board June 7, 1977, as,amended August 5, 1977
(1) 8 CFR 3.5 requires that the entire record of the proceeding shall be forwarded to the
Board on appeal. A cassette recording of the exclusion hearing is not suitable for
appellate review of the case. The regulation requires submission of a written transcript
of any hearing held before an immigration judge.
(2) Under 8 CFR 103.3(a) a copy of all briefs, memoranda, and representations filed by the
Service in connection with an appeal to the Board must be served on the affected party -
and these papers must be signed and dated. In this record there is no evidence that
these papers were served on the-applicant.
(3) 8 CFR 236.5(c) requires that the applicant shall be notified in writing when an appeal is
taken by the District Director from an adverse order of the immigration judge in an
exclusion case. Since the record does not contain a copy of the notice, it is assumed the
applicant never received the notice as required by this regulation.
(4) Since filing of a. brief, including a reply brief, is discretionary, a decision may be
rendered without a brief, and should be, where as here, the Service's reply brier was not
filed within a reasonable time.
(5) The record will be remanded to the Immigration judge to correct the defects in the
record and afford applicant an opportunity to respond to the Seririce's memoranda and
representations filed in support of the appeal. See Matter of GibsoniInterim Decision
2541 (BIA 1976).
EXCLUDABLE:
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(x)(20)1—Immigrant—no valid immigrant
visa
ON BEHALF OF .APPLICANT: ON BEHALF OF SERVICE:
David A. Kattan, Esquire Leonard Leopold"
419 Gravier Street Trial Attorney
New Orleans, Louisiana 70130
BY: Milliollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

This is an appeal from an order of an immigration judge, dated
February 9, 1977, finding the applicant properly classifiable as the stepchild of a United States citizen and ordering his admission into the
United States as a permanent resident. The Service has appealed from
this order. The record will hp remanded.
We are unable to reach the merits of the appeal due to several

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deficiencies in the record. First, there is no transcript of the exclusion
hearing held on March 6, 1975, which is referred to by the immigration
judge in his order. The regulations require that the entire record of
proceedings shall be forwarded to the Board on appeal. 8 C.F.R. 3.5. In
an exclusion proceeding, the record in the ease consists of the hearing
before the immigration judge, including the testimony and exhibits, the
immigration judge's decision, and all written orders, motions, appeals,
and other papers filed in the proceeding. 8 C.F.R. 236.2(e). The record
before us contains a cassette recording, presumably of the exclusion
hearing, but this method of preserving testimony is unsuitable for
appellate review of the case. The regulations clearly contemplate that
the record on appeal include a written transcript of any hearing held
before an immigration judge.
Second, there is no evidence in the record indicating that a copy of a
Service memorandum in support of the appeal was ever served on the
opposing party. The memorandum in the record before us not only lacks
a certificate of service, but it is also unsigned and undated. A copy of all
briefs, memoranda, and representations filed by the Service in connection with an appeal to the Board must be served on the affected party. 8
C.F.R. 103.3(9). Obviously, these papers must also be signed and dated.
Third, it appears that the regulation pertaining to notice of a Service
appeal from an adverse order in an exclusion hearing has not been
complied with. 8 C.F.R. 236.5(c) requires that the "applicant shall be
notified in writing when an appeal is taken by the District Director and
advised that he will be allowed 5 days from receipt of notification in
which to submit written representations for transmittal to the Board
with the record in the case." Since the record does not contain a copy of
this notice, we assume that the applicant has not received written notice
of a Service appeal in accordance with this regulation.
The immigration judge and the District Director have a concurrent
obligation to see that the record is complete and complies with the
applicable regulations before it is forwarded to us on appeal. Failure to
insure that this is done results in delay and inconvenience, at the least,
and a possible miscarriage of justice if these deficiencies are overlooked.
f attar of Gibson, Interim Decision 2541 (BIA 1976).
We note that there has already been an inordinate delay in this case.
The decision in this ease was not rendered until almost 2 years after
the exclusion hearing. The immigration judge attributes the delay to the
failure of the Service to file a reply brief to the one submitted by the
applicant after the exclusion hearing. (Decision of the immigration
Judge, p. 7.) However, filing of briefs, including reply briefs is clearly
discretionary; obviously a decision can be rendered without a brief and
Qlearly should be where, as in this case, the Service's reply brief was not
filed within a reasonable time.

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Accordingly, we will remand the record to the immigration judge so
that the defects in the record can be corrected. The applicant should be
afforded an opportunity to submit a brief in reply to the Service
memorandum in support of the appeal and other evidence before the
record is returned to the Board for a determination of the merits of this
appeal.
ORDER: The record is remanded to the immigration judge.

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