SABAN

Interim Decision #2870




                                  MATTER OF SABAN
                              In Exclusion Proceedings

                                       A-23193117
                        ' Decided by Board June 11, 1981

(1) When the applicant files an application for asylum after he. has been placed in exclusion
  proceedings, the immigration judge must adjourn the hearing for the purpose of requesting-an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs
  (BHRHA), Department of State. 8 C.F.R. 208.10(b).
(2) Prior to the issuance of a final order of exclusion and deportation, a BHRHA advisory
  opinion, received in connection with an asylum request made in exclusion proceedings,
  must be made part of the record and the applicant given an opportunity to inspect,
  explain, and rebut it. 8 C.F.R. 208.10(b).
(3) Immigration judge erred when he ordered asylum applicant excluded prior to receipt
  of a BHRHA opinion, but stated that he would reopen the proceedings when such
  opinion was issued.
EXCLUDABLE:
  Order: Aet of 1952—Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)1—Not in possession of valid
                       labor certification
                        Sec. 212(a)(19) f8 U.S.C. 1182(a)(19)1—Attempted to enter United
                          States by fraudulent documentation
                        Sec. 212(a)(20) (2        1182CaX20h — Not in possession of a valid,
                          unexpired visa
ON BEHALF OF APPLICANT: Margaret H. McCormick, Esquire
                     McCormick & Hallagen
                     30 West Washington Boulevard
                     Chicago, Illinois 60602
By:   Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members


   This is an appeal from a decision of the immigration judge, dated
March 13, 1981, finding the applicant excludable as charged and ordering his exclusion and deportation from the United States. The appeal
will be sustained and the record will be remanded.
   The applicant is a resident of Belgium and a citizen of Yugoslavia,
who applied for admission to the United States on February 23, 1981, by
first claiming to be a United States citizen and then by presenting a
fraudulent alien registration card. A form 1-122, Notice to Applicant for

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                                                              Interim Decision #2870
Admission Detained before Immigration Judge, was issued to the
applicant. At the exclusion hearing, the applicant conceded excludability.
An application for asylum was filed with the immigration judge pursuant to 8 C.F.R. 208-3(b), Nonetheless, the immigration judge entered a
final order of exclusion without adjourning the hearing, indicating that
he would reopen the proceedings after an advisory opinion was returned
from the Department of State, Bureau of Human Rights and Humanitarian Affairs (BHRHA).
  We note at the outset that the transcript of the proceedings and the
immigration judge's decision are not in the record file. Counsel for the
applicant stated in a letter to the immigration judge, dated April 6,
1981, that the applicant was willing to waive the transcription of the
 record and the decision. Counsel then requested that this Board consider the single issue of law presented in this case. We agree to consider
 this appeal because of the special circumstances of this case. The request
 for expedition was made by the applicant. The Service has forwarded
 the record file to us. It appears that both parties are willing to go
 forward with this appeal. In addition, for the reasons stated below, our
 decision will not adversely affect the applicant.
    The asylum procedure for requests made after the institution of exclusion proceedings is set forth in 8 C.F.R. 208.10. 8 C.F.R. 208.10(b)
 provides that: "fw]hen the asylum request is filed, the hearing shall be
 adjourned for the purpose of requesting an advisory opinion from
 BHRHA." This section further provides that: "[t]he BHRHA opinion
 shall be made part of the record, and the applicant given an opportunity
 to inspect, explain, and rebut it."
   The immigration judge's entry of a final exclusion order is incorrect.
 An asylum request was filed by the applicant at the exclusion proceedings.
The proper procedure then was for the immigration judge to adjourn
the hearing for the purpose of obtaining an advisory opinion from
•BHRHA. Moreover, the regulations provide that prior to any issuance
of a final exclusion order, the BHRHA opinion must be made part of the
record of the exclusion proceedings and the applicant given an opportunity to inspect; explain', and rebut the advisory opinion. Accordingly,
the appeal will be sustained, and the record will be remanded.'
  ORDER The appeal is sustained.
  FURTHER ORDER: The decision of the immigration judge is
vacated and the record is remanded for, consideration of the applicant's
application for asylum and for the entry of a new decision.

  l An application for political asylum under section 208 of the Immigration and Nationality
Act, 8 U.S.C. 1158, made after the institution of exclusion or deportation proceedings,
shall also be considered as a request for withholding of deportation under section 243(h)
of the Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(6) (effective June 1, 1980).

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