“We have held that immigration judges and the Board on review have the power to grant permission to reapply for admission retroactively where such action is necessary for the complete disposition of the case.”
Good law ✅— No negative treatment on recordhow we know
Decided 1979-07-01
How this case has been cited
Cited by 3 later decisions — most recently February 2010
3 federal appellate ·
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
Interim Decision #2723
MATTER OF NG
In Exclusion Proceedings
A-20820915
Decided by Board July 24, 1979
(1) The immigration judge and the Board have the power in either exclusion or deportation proceedings to grant nunc pro tune permission to reapply for admission following
deportation when the grant will effect a complete disposition of the case.
(2) Where an alien was found inadmissible in exclusion proceedings, an immigration
judge did not have the power to grant him advance permission to reapply for admission after exclusion and deportation.
EXCLUDABLE Act of 1952—Sec. 212(a)(20), I&N Act (8 U.S.C. 1182(a)(20))—Immigrant
not in possession of a valid unexpired immigrant visa
ON BEHALF OF AFYLIOANT. 0e Bon.u.r. or Sum=
Steven Singer, Esquire James W. arable
Barst & Mukamal Trial Attorney
12'1 John Street
New York, New York I0007
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb; Board Members
In a decision dated February 2,1978, an immigration judge found the
applicant excludable under section 212(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(0(20), as an immigrant without a valid
unexpired immigrant visa or other valid entry document and ordered
him excluded and deported from the United States. The immigration
judge contemporaneously granted the applicant advance permission to
reapply for admission following deportation,' conditioned upon the
applicant's prompt filing of an application for such permission and his
reapplying for admission, following his departure from this country, in
possession of an immigrant visa.'
' Pursuant to section 212(a)(16) of the Act, 8 U.S.C. 1182(a)(16), an alien who has been
excluded and deported is barred from reentering the United States for one year following deportation unless he secure* permission to reapply for admission prior to the
expiration of that one-year period.
The trial attorney correctly noted in his brief that approval of an application for
advance permission to reapply shall be conditioned upon the alien's departure from the
Interim Decision #2723
The Service has appealed from the portion of the immigration
judge's decision which granted the applicant advance permission to
reapply for admission on the ground that an immigration judge is
without authority to entertain an application for such relief in an
exclusion proceeding. Excludability is not at issue. The appeal will be
sustained.
An immigration judge's authority in exclusion proceedings is set
forth as follows in S C.F.R. 236J:
In determining cases referred for further inquiry as provided. in section 235 of the
Act, immigration judges 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, immigration judges 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. (Emphasis added.)
We have held that immigration judges and the Board on review have
the power to grant permission to reapply for admission retroactively
where such action is necessary for the complete disposition of the case.
See Matter of S—N—,
6 I&N Dec. 73
(BIA 1954; A.G. 1954); Matter of
Vrettakos,
14 I&N Dec. 593
(BIA 1973 and 1974), Matter of Ducret,
Interim Decision 2483 (BIA 1976); 8 C.F.R. 242.8(a) and 3.1(d). See also
Matter of Martinez,
15 I&N Dec. 563
(BIA. 1976). Cf. Matter of Millard,
11 I&N Dec. 175
(BIA 1965); compare Matter of Da.—G--, S I&N Dec.
325 (BIA 1959; A.G. 1959). Two situations have been identified in which
that power may be exercised by the immigration judge and the Board:
(1) where the only ground of deportability or inadmissibility would
thereby be eliminated; and (2) where the alien would receive a grant of
adjustment of status in conjunction with the grant of any appropriate
waivers of inadmissibility. Matter of Ducret, supra.
Likewise, absent an express grant of authority in the statute or the
regulations,' before jurisdiction to adjudicate an application for advance permission to reapply for admission may vest in the immigration judge, it must -be shown that approval of the application would
conclude the proceedings before him. Such showing is not possible in
cases involving applications for advance permission to reapply
presented to an immigration judge in the course of an exclusion
hearing.'
United States and not otherwise conditioned or limited. 8 C.F.R. 212.2(i).
' Applications for permission to reapply for admission following deportation, nunc pro
tune and contemporaneous as well as advance, lie primarily within the jurisdiction of
the District Director with review by the Regional Commissioner. 8 C.F.R. 212.2(f); 8
C.F.R. 103.1(m)(7).
The regulations explicitly preclude an alien in deportation proceedings from applying
to the immigration judge for advance permission to reapply. 8 C.F.R. 212.2(g); Matter of
Vrettakos, supra.
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Interim Decision #2723
A grant of advance permission to reapply for admission does not
permit termination of the proceedings or in any manner affect the
execution of an exclusion order. On the contrary, an alien must depart
the United States before he may benefit from a favorable disposition of
his application. The grant of advance permission merely assures an
excludable alien, prior to his departure, that he will not be required to
remain abroad for the prescribed one-year period following his exclusion and deportation before seeking reentry into the United States.
We have considered the arguments advanced by counsel and find
them unpersuasive. We accordingly hold that the immigration judge
lacks jurisdiction in these exclusion proceedings to consider the appli
cant's request for advance permission to reapply for admission. The
following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: So much of the order of the immigration
judge as purports to grant, or grant conditionally, an application for
permission to reapply for admission to the United States after deportation is disapproved and set aside for lack of jurisdiction_
FURTHER ORDERS The order that the applicant be excluded and
deported from the United States is affirmed.
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