Interim Decision #2954
MATTER OF TORRE
In Deportation Proceedings
A-27009418
Decided by Board January 25, 984
(1) In an appeal from an immigration judge's decision in. a deportation case, the
record of proceeding must always contain the immigration judge's order, the
Order to Show Cause and Notice of Hearing (Form I-2Z1), any exhibits, and the
Notice of Appeal (Form 1-290A).
(2) Where it appears that an appeal may be appropriate for summary dismissal
under 8 C.F.R. § 3.1(d)(1 a) (1984), either party may request that the immigration
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judge forward the case to the Board without a transcript of the hearing.
(3) If the immigration judge determines that a transcript is necessary for proper adjudication of the appeal, he may direct that a transcript be included, and there
shall be no appeal from this determination; otherwise, the immigration judge
shall forward the request for review without a transcript to the Board for resolution, together with the other documents required to be included in the record.
Matter of Gwrzboa,14 I&N Dec. 244 (BIA 1972), modified in part.
CHARGE:
Order: Act of 1952—Sec. 241(aX2) [
8 U.S.C. § 1251(a)(2)]—Entered without inspection
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Patrick Murpby, Esquire Kenneth S. Hurewitz
Peter Upton, Esquire General Attorney
American Friends Service Committee
1205 Sunset Drive
Miami, Florida 33143
BY: Milhollare, Chairman; 1V1uniatis, Dunne, Morris. and Vacca, Board Members
In a decision dated September 30, 1983, an immigration judge
found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act,
8 U.S.C. § 1251(a)(2) (1982), as an
alien who entered the United States without inspection by immigration officers. The respondent appealed. Counsel for the Immigration and Naturalization Service has requested that we summarily dismiss the appeal pursuant to
8 C.F.R. § 3.1(d)(1-a) (1984). He
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Interim Decision #2954
argues that the appeal is stated in generalized language, does not
specify the reason for appeal, and is "patently frivolous and dilatory." The record will be returned to the immigration judge.
The record file presently before us does not contain a transcript
of the proceedings, or the immigration judge's order. In Matter of
Gamboa, 14 I&N Dec. 244 (BIA 1972), we held, inter alia, that when
it appears to the district director that a case is subject to summary
dismissal, and the appeal can be adequately presented to the Board
without a transcript of the proceedings below, he may forward the
record to us for consideration whether review without a transcript
is appropriate. We further held, however, that the record should
always contain the immigration judge's order, the Order to Show
Cause and Notice of Hearing (Form I-221), any exhibits, and the
Notice of Appeal (Form I-290A), as well as a memorandum stating
why the case should be summarily dismissed. As the record now
before us does not contain the immigration judge's order, we
cannot decide the appeal. Under Matter of Gamboa, return of the
file to the immigration judge is necessary so that the decision can
be transcribed and included in the record.
In addition, however, we find that Matter of Gamboa, supra,
must be modified. While the immigration judge has always had responsibility for the contents of the record file (Matter of Gibson,
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I&N Dec. 58 (BIA 1976)), previously it was the district director who
had administrative control over the record file. For this reason, authority was provided to the district director to determine whether
an appeal should be forwarded to the Board for a decision as to
whether the appeal could be appropriately considered without a
transcript. Since January of 1983, however, when the immigration
judges were removed from the Immigration and Naturalization
Service and made a part of a separate unit within the Department
of Justice,' they have assumed administrative control over the
records of proceedings. We have determined that under these new
circumstances, a new procedure is required. In appropriate cases as
described in Matter of Gamboa, supra, either party may request
that the immigration judge forward the case to the Board without
a transcript. Such a request must be served on the other side. Any
response to such a request must be promptly filed. If the immigration judge initially concludes that a transcript is necessary to adequately adjudicate the appeal, he may direct that a transcript be
included. An immigration judge's determination to require a tran-
The immigration judges now come under the authority of the Office of the Chief
Immigration Judge, which in turn is part of the newly formed Executive Office for
Immigration Review. of which this Board is also a part.
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Interim Decision #2954
script is not appealable. Otherwise, the immigration judge shall
forward the request for review without a transcript to the Board
for resolution, together with the other documents specified in
Matter of Gamboa. To the extent that Matter of Gamboa is inconsistent with our new holding, it is modified. However, the Gamboa
requirements regarding the contents of the record file remain in
effect.
Accordingly, we will return the record to the immigration judge
for further action pursuant to the foregoing opinion.
ORDER: The record is returned to the immigration judge for
further action consistent with the foregoing decision.
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