inline">Interim Decision #3128 MATTER OF KEYTE In Exclusion Proceedings A 27261877 - A-27261878 A-27261879 A-27261880 A 27261881 - Decided by Board February 28, 1990 Departure from the United States by an applicant for admission in exclusion proceedings after the taking of an appeal from the immigration judge's order denying admission does not constitute withdrawal of the appeal_ EXCLUDABLE: Act of 1952—Sec. 212(a)(14) (8 U.S.C. § 1182

(a)(14)1—No valid
labor certification
Sc. 212(a)(20) [8 § 1182(a)(20)) —No valid
immigrant visa
ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE:
Stephen D. Quinn, Esquire Melainie Fitzsimmons
735 Bishop Street 425 Dillingham TransportaHonolulu, Hawaii 96813 tion Building
General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated. April 22, 1986, the immigration judge found the
applicants excludable as charged and ordered them deported from the
United States. The applicants have appealed from that decision. The
appeal will be dismissed.
On appeal, the Immigration and Naturalization Service discloses
that after filing this appeal, the applicants departed from the United
States on September 16, 1986. They returned on April 1, 1987, and
again sought admission as nonimmigrant visitors and were again
placed in exclusion proceedings. The Service further notes that the
applicants subsequently departed from the United States on August
10, 1987, and returned to New Zealand. The Service maintains that
the applicants' conduct constitutes a withdrawal of the appeal. We
disagree. The filing of a written withdrawal of the appeal would have

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Interim Decision #3128

rendered final the decision of the immigration judge to the same extent
as if no appeal had been taken. See

8 C.F.R. § 3.4

 (1989). However, no
valid withdrawal has been submitted.' The applicants' departure in
and of itself does not necessarily constitute a withdrawal of the appeal.
The last sentence of

8 C.F.R. § 3.4

 (1989), which by its terms applies
only to a person "who is the subject to deportation proceedings" is not
controlling. The departure pending appeal of an alien who has been
stopped at the border and ordered excluded is not necessarily
incompatible with a design to prosecute the appeal to a conclusion.
Furthermore, we do not consider the applicants' appeal to be moot,
since a resolution of the appeal adverse to the applicants would still
have legal consequences. See section 212(a)(16) of the Immigration
and Nationality Act,

8 U.S.C. § 1182

(a)(16) (1982). We note that the
cases cited by the Service, Matter of G-B-, 6 l&N Dec. 159 (BIA 1954)
and Matter of Kennedy,

13 I&N Dec. 242

 (BIA 1969), for the
proposition that the applicants, by their conduct, have withdrawn their
appeal are distinguishable because these cases involve an alien's
admission to this country subsequent to an appeal of an exclusion
order.
   In spite of our finding that the appeal has not been withdrawn, we
need not reach its merits. In their Notice of Appeal (Form I-290A) the
applicants stated as their reason for the appeal that the decision of the
immigration judge was unfair. The applicants indicated that they
would submit a brief in support of their case. On August 7, 1987, a
copy of the transcript of the proceeding was mailed to the applicants
but no brief has yet been submitted. The applicants have offered only a
generalized statement of their reason for the appeal and have neglected
to specify whether the alleged error in the immigration judge's decision
lies with his interpretation of the facts or his application of legal
standards. We therefore conclude that the appeal should be summarily
dismissed pursuant to

8 C.F.R. § 3.1

(dX1-0(1) (1989). See Matter of
Holguin, 13 UN Dec. 423 (BIA 1969); see also Matter of Lodge,

19 I&N Dec. 500

 (BIA 1987); Matter of Valencia,

19 I&N Dec. 354

 (BIA
1986).
   ORDER:             The appeal is summarily dismissed.




  I We note that -there is correspondence from a family friend stating that the applicants
wished to withdraw their appeal, but there is no evidence that the applicants, who have
been represented throughout these proceedings by an attorney, authorized their friend to
take such action.,

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