HOLANI

Interim Decision #2804




                               MATTER. OF HOLANI

                            In Exclusion Proceedings

                                     A-22907478
                       Decided by Board July 10, 1980

Since the immigration judge is primarily responsible for the physical aspects of the
  record on appeal, and in his judgment a transcript of the hearing was necessary in the
  case in view of the allegations on appeal, the transcription should have been furnished
  by the District Director and the case was remanded for completion of the record.
  Matter of Gibson, 16 MN Dec. 58 (3IA 1976) reaffirmed.
EXCLUDABL0
  Order: Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—not in possession of valid immigrant visa
                      See. 212(a)(14) [9 U.S.C. 1182(a)(14)] Immigrant not in pos-
                                                              —             —


                        session of valid labor certification
                      Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Immigrant—visa obtained by willful misrepresentation of a material fact
ON BEHALF OP APPLICANT:                               ON BEHALF OF SEEVIC
 H. Ralph Klemm, Esquire                               Robert Godshall
 10 West Broadway, Suite 510                           District Director
 Salt Lake City, Utah 84101
BY: Milhollan, Chairman; Maniatis, A.ppleman, Maguire, and Farb, Board Members


  This case presents an appeal from a decision of the immigration
judge ordering that the applicant be excluded and deported from the
United States. His decision was based only upon the first of the three
above-stated charges. The case will be remanded.
  The applicant was ordered detained under the provisions of section
235(b) of the Immigration and Nationality Act, 8 U.S.C. 1225(b), as
amended, for an exclusion hearing before the immigration judge on
May 3, 1979. The latter's adverse decision then followed on June 7, 1979.
  The applicant appealed on the ground that she should have been the
subject of deportation rather than exclusion proceedings. It is contended that the decision of the immigration judge was not supported
by substantial evidence in the administrative record. It is the position
of the Service that "The instant appeal appears to be frivolous and

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merely an attempt to allow the applicant to remain in the United
States for as long as possible."
  The record file does not contain a transcript of the oral decision, but
rather the immigration judge's hand written hearing work sheet and
                                        -


memorandum of decision (Form 1-167). The record before us, therefore, suffers a very serious deficiency. We note, however, that the
immigration judge repeatedly attempted to have the District Director
order that the record of proceedings in this case be transcribed, but to
no avail.
   We hold the immigration judge primarily responsible for the physical aspects of the record before us in matters under his jurisdiction,
including all material pertaining to the organization and completeness
of the record hearings; orderly inclusion of exhibits and trial briefs; his
signed separate opinion; the appeal notice, with attachments; copies of
relevant procedural communications between the immigration judge,
respondent, and the Immigration and Naturalization Service; and all
appeal briefs with proof of timely service. Since in his judgment a
transcript was necessary in view of the allegations on appeal, the
transcription should have been furnished. See Matter of Cruz,

 (BIA 1977); Matter of Charles, 

 (BIA 1977);
Matter of Gibson, 

 (BIA 1976).
   Since there appears to be a genuine issue of whether the applicant
was duly admitted to the United States, and in light of the above
deficiency, we have determined that the incomplete record should be
remanded. The immigration judge may then correct the deficiency,
enter a formal decision, and return the file to the Board. Accordingly,
the case will be remanded.
   ORDER: The case is remanded for further proceedings consistent
with the foregoing opinion.