Interim Decision #3168
MATTER OF SILVA-RODRIGUEZ
In Deportation Proceedings
A-30542672
Decided by Board March 27, 1992
An immigration judge in deportation proceedings did not act with good cause by
granting a 1-year continuance so that the respondent would have more time to establish
rehabilitation in furtherance of his application for a waiver of inadmissibility under
section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Sapp. II
1990). Matter of Garcia-Reyes,
19 I&N Dec. 830 (BIA 1988), followed.
CHARGE;
Orden Act of 1952—Sec. 241(a)(2)(A)(iii) [
8 U.S.C. § 1251(a)(2)(A)(iii)j—Convicted of
aggravated felony
Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(01—Convicted of
controlled substance violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Paul M. Douglass, Esquire Thomas R. Murphy
Douglass, Chew and Chew General Attorney
604 Myrtle Avenue
El Paso, Texas 79901
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
The record reflects that the respondent is a native and citizen of
Mexico, who was admitted to the United States on May 8, 1970, as a
lawful permanent resident. On February 7, 1989, he was convicted of
delivery of a controlled substance in the 168th District Court of El
Paso County, Texas. As a result, the Immigration and Naturalization
Service issued an Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien (Form I-221S), charging the respondent
with deportability pursuant to the grounds set forth above.
At his deportation hearing, the respondent conceded deportability
and applied for a waiver of inadmissibility under section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. II 1990).
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Interim Decision #3168
On September 26, 1991, after the presentation of evidence, , the
immigration judge ordered the hearing continued for 1 year so as to
allow the respondent an opportunity to establish rehabilitation. The
immigration judge stated that at the end of this period, he would grant
section 212(c) relief if the respondent demonstrated rehabilitation and
otherwise would order the respondent deported to Mexico.
The Service has filed an interlocutory appeal with respect to the
immigration judge's ruling. In particular, it cites to our decision in
Matter of Garcia-.Reyes, 19 I&N Dec. 830 (BIA 1988), and argues that
the immigration judge was without authority to order such a continuance. For his part, the respondent, through counsel, seeks to
distinguish that precedent from the facts of this case.
As a primary matter, we point out that the Board does not
ordinarily entertain interlocutory appeals. See Matter of Guevara,
20
I&N Dec. 238 (BIA 1990, 1991). However, we have on occasion ruled
on the merits of interlocutory appeals where we deemed it necessary to
address important jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the
handling of cases by immigration judges.
Id. We find that the Service's
interlocutory appeal satisfies this criteria.
Turning to the merits of the issue before us. we note that in Matter
of Garcia-Reyes, supra, we held that an immigration judge should not
grant, sua sponte, a 6-month continuance so as to enable an alien to
show rehabilitation, where there was no evidence that the alien was
eligible for any form of relief for which rehabilitation would be
relevant. Id. at 832. We acknowledge the accuracy of the respondent's
appellate observation that, in contrast to Matter of Garcia-Reyes,
rehabilitation is an integral part of the relief which he seeks in the
matter at hand, i.e., a section 212(c) waiver. See, e.g., Matter of
Edwards,
20 I&N Dec. 191 (BIA 1990). Nevertheless, under the
circumstances of this case, we are not persuaded by the respondent's
attempt to distinguish Matter of Garcia Reyes.
Specifically, in that decision, we additionally relied upon the fact
that the 6-month continuance granted by the immigration judge
appeared to be inconsistent with section 242(i) of the Act,
8 U.S.C.
§ 1252(i) (1988), which provides that deportation proceedings should
be initiated as expeditiously as possible after the date of a conviction.
See Matter of Garcia-Reyes, supra, at 832. We find that, as a practical
matter, the purpose of this statute is circumvented if deportation
proceedings, once promptly initiated by the Service, are unduly
I The record is missing various exhibits, such as the respondent's application for relief
and the documentation relating to his criminal history. However, this material is not
essential to our analysis.
Ada
Interim Decision #3I68
delayed by an immigration judge. Cf. Matter of Quintero, 18 I&N Dec.
348, 350 (BIA 1982) (the prosecutorial discretion exercised by granting
deferred action status, which may be requested at any stage of a
deportation proceeding, is committed exclusively to the enforcement
officials of the Service); Matter of Yazdani,
17 I&N Dec. 626, 630 (BIA
1981) (so long as the enforcement officials of the Service choose to
initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge must go forward).
With regard to the immigration judge's apparent justification for
the continuance in this matter, we acknowledge that confined aliens
and those who have recently committed criminal acts will have a more
difficult task in demonstrating rehabilitation than aliens who have
committed the same offenses in the more distant past. See Matter of
Marin, 16 I&N Dec. 581, 588 (BIA 1978). In any case involving
discretionary relief, the timing of the issuance of an Order to Show
Cause by the Service can have a significant effect on the circumstances
relevant to the exercise of discretion.
Id. at 589. However, this fact
alone does not mandate that proceedings should be delayed so as to
afford an alien a better opportunity to prove rehabilitation.
Id.
Finally, we consider that, in essence, the immigration judge
conditionally granted a section 212(c) waiver in this case. In particular,
he stated that he would award that relief if, at the end of a year, he was
convinced that the respondent had avoided further wrongdoing. We
note, however, that there is no authority for the provisional grant of a
waiver of inadmissibility. See Matter of Przygocki, 17 I&N Dec. 361
(BIA 1980).
While we are sympathetic to the desire of the immigration judge to
fashion a fair result in this matter, the I -year continuance was without
"good cause." See 8 C.F.R. § 3.27 (1991). Accordingly, we will
remand the record to the immigration judge so that he may schedule a
prompt final session of the respondent's deportation hearing, at which
he should resolve any outstanding issues and render a decision on the
merits.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.
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