FUEYO

Interim Decision #3114




                            MATTER OF FUEYO
                          In Deportation Proceedings

                                     A-19687475

                        Decided by Board July 5, 1989

(1) Evidence that the respondent was taken into custody and deported by the
  Immigration and Naturalization Service establishes that she was "arrested and
  deported" within the meaning of section 212(aX17) of the Immigration and
  Nationality Act, 8 U.S.0 § 1182(a)(17) (1982).
(2) The burden is on the respondent to prove that, following her deportation, she applied
  for and received consent to reapply for admission to the United States from the
  Attorney General or his designate
(3) A nonimmigrant waiver of inadmissibility under section 212(d)(3)(B) of the Act may
  not be granted nunc pro tunc in deportation proceedings. Matter of P-, 

 (Asst. Comm. 1959); and Matter of M-, 

 (RC., Asst. Comm.
  1959), superseded.

CHARGE:
Order: Act of 1952—Sec. 241(a)(1) [8 U.S.0 § 1251(a)(1)]—Excludable at entry under
                     section 212(aX17) [

(a)(17)J—No permission to
                        reapply after deportation,
ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Pro se                                                Lolita Semidey
                                                        General Attorney

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


   In a decision dated March 26, 1985, an immigration judge found
the respondent deportable as charged and denied her renewed
application for a waiver of inadmissibility under section 212(d)(3)(B)
of the Immigration and Nationality Act, 

(d)(3)(B)
(1982). The respondent was granted the privilege of voluntary
departure in lieu of deportation. Subsequent to filing her Notice of
Appeal (Form 1-290A), the respondent filed a motion requesting oral
argument before the Board. The request for oral argument is denied.
The appeal will be dismissed.
  The respondent is a 56-year-old native and citizen of Spain. She was
deported from the United States on May 3, 1983. On January 13,
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1985, she was admitted to the United States as a nonimmigrant visitor
authorized to remain in this country until July 12, 1985. However, on
January 25, 1985, an Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien (Form 1-221S) was issued against her when
it was discovered that she had entered the United States within 5 years
of her 1983 deportation without first obtaining permission to reapply
for admission after deportation. Because of these actions, she was
charged With deportability under section 241(a)(1) of the Act, 8
§ 1251(a)(1) (1982), as one excludable at entry under section
212(a)(17) of the Act.
   At a deportation hearing on February 25, 1985, the respondent
stated that she believed she had to remain outside the United States
for only 1 year following her deportation, not 5 years. However, she
also stated that she was told she could not be given permission to
return to the United States for 15 years. The respondent stated that she
had to come to the United States because of judicial proceedings
pending here. The immigration judge suggested that the respondent
apply to the district director for a nonimmigrant visa waiver and
informed her that if the district director denied the waiver she could
renew her application for it before him.
   The respondent immediately filed a Form 1 192 (Application for
                                                 -


Advance Permission to Enter as Nonimmigrant). This application was
denied by the district director on February 26, 1985. An appeal to this
Board was dismissed on October 9, 1985. Following the district
director's denial (but prior to the Board's dismissal of the appeal from
the denial), the respondent renewed her application for a section
212(d)(3)(B) waiver in deportation proceedings before the immigration
judge. The immigration judge also denied the waiver and this appeal
followed.
   The respondent, who is unrepresented, has filed a lengthy brief on
appeal which raises a number of issues. Much of her brief discusses in
detail her considerable efforts to avoid deportation from 1977 to 1983.
The pertinent portions of her brief allege that she was not "arrested
and deported" in 1983, that she was not deportable as charged, and
that her application for a section 212(d)(3)(B) waiver should have been
granted.
   Evidence provided at the hearing by the Immigration and Naturalization Service establishes that the respondent was taken into custody
and deported from the United States on May 3, 1983. This evidence
proves that the respondent was "arrested and deported." See Solis-Davila v. INS, 

 (5th Cir. 1972). Having been deported, she
could not reenter the United States within 5 years without specifically
applying for and receiving the consent of the Attorney General or his
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Interim Decision #3114

designate.' Section 212(a)(17) of the Act; 

 (1983). The
burden is on the respondent to establish that she received such
consent. See Solis Davila v. INS, supra; Matter of Li, 

                      -


(BIA 1975). In her brief the respondent cites cases for the apparent
proposition that the Service must prove that she had the specific intent
to reenter the United States in violation of law. The cases cited 2 all
involved aliens charged with the felony crime of being in the United
States following deportation without having first obtained the express
consent of the Attorney General or his designate. See section 276 of
the Act, 

 (1982). These criminal cases have no
relevance to the deportation charge against this respondent. The
respondent has provided no evidence to show that she had the consent
of the Attorney General or his designate to reenter the United States
following her 1983 deportation. Indeed, the record reflects that in
1984, the respondent did attempt to file an application to obtain such
consent, but the application apparently was not accepted and certainly
was not approved. Moreover, at the hearing the Service provided a
certified document stating that a search of Service records had been
made to ascertain whether such an application had been filed or
granted, and no application was found. The respondent was properly
found deportable under the charge brought.
   The immigration judge also properly denied the respondent's
application for a nonimmigrant waiver under section 212(d)(3)(B) of
the Act. As we stated in our decision dismissing the respondent's
appeal from the district director's denial of that waiver, the relief
sought cannot be granted nunc pro tune. The respondent is in
deportation proceedings, having already entered the United States,
and the waiver cannot be granted in deportation proceedings. Section
212(d)(3)(B) of the Act provides in pertinent part that an alien

   who is inadmissible under one or more of the paragraphs enumerated in subsection
   (a) ... but who is in possession of appropriate documents or is granted a waiver
   thereof and is seeking admission, may be admitted into the United States
   temporarily as a nonimmigrant in the discretion of the Attorney General.

  'The respondent has stated that because she waited for more than 1 year after her
deportation before returning to this country, she did not need permission to reapply for
admission. The respondent is mistaking the situation of an alien who, not having
entered the United States, is excluded and deported from the United States. Such an
excluded alien may not again seek admission within 1 year without the permission of the
Attorney General or his designate. Section 212(a)(16) of the Act. The case of an alien
like the respondent, who had entered the United States and is deported, is covered by
section 212(017).
   2 United States v. Newton, 

 (2d Cir. 1982); United States v. Hussein, 

 (6th Cir. 1982); and Pena- Cabanillas v. United States, 

 (9th Cir.
1968).
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                                                               Interim Decision #3114

Federal regulations at 

(b) (1988) provide that
  an application for the exercise of discretion under section 212(d)(3)(B) of the Act
   shall be submitted on Form 1-192 to the district director in charge of the applicant's
   intended port of entry prior to the applicant's arrival in the United States...'. If the
   application is made at the time of the applicant's arrival to the district director at a
   port of entry, the applicant shall establish that he was not aware of the ground of
   inadmissibility and that it could not have been ascertained by the exercise of
   reasonable diligence .
The regulations further provide that if an application is denied, it may
be renewed "in the course of proceedings before [an immigration
judge] under sections 235 and 236 of the Act and this chapter." 

 By
its very nature, the relief sought can only confer advance permission
for a future entry, and the statute and regulations make no provision
for this waiver to be granted retroactively. 3 Compare 

(i) (1988), which explicitly authorizes retroactive approval of
an application for permission to reapply for admission after deportation.
   Since the respondent has entered the United States, she is not
eligible for a section 212(d)(3)(B) waiver, and we will therefore not
address the question whether she would merit the waiver in the
exercise of discretion.
   The respondent has also argued in her brief that she should be
granted nunc pro tune permission to reapply for admission to the
United States after deportation. The respondent has not actually
applied for such permission, and we will not speculate on the merits of
any such potential application.
   For the reasons discussed above, the respondent's appeal will be
dismissed.
   ORDER:         The appeal is dismissed.




  3 We note that although the immigration judge concluded, as we have, that a section
212(d)(3)(B) waiver cannot be granted nunc pro tunc in deportation proceedings, he did
cite two 1959 cases that suggest the contrary. In Matter of    

 (Asst.
Comm. 1959), and Matter of M-, 

 (R.C., Asst. Comm. 1959), section
212(d)(3) waivers were granted in conjunction with the aliens' applications for
adjustment of status. No authority for doing this was cited in the cases. Those cases,
which were decided not by this Board but by the Assistant Commissioner for the
Immigration and Naturalization Service, are not binding on us. We further note that
prior to January 8, 1958, the regulations did not so specifically limit section 212(d)(3)(13)
waivers to aliens seeking admission, and it is possible that the Assistant Commissioner
was not fully aware of the significant changes in the pertinent regulations when his
decisions were issued.

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Interim Decision #3115




              MATTER OF RODRIGUEZ-ESTEBAN
                         In Deportation Proceedings

                                   A 18234358
                                     -




                      Decided by Board July 13, 1 989

  The immigration judge and this Board lack jurisdiction in deportation proceedings to
reconsider the order of the district director made in rescission proceedings. Matter of
Saunders, 

 (BIA 1977), modified.

CHARGE:
Orden Act of 1952—Sec. 241(a)(2) (

(a)(2)]—Nonimmigrant—remained
                       longer than permitted

                    Sec. 241(aX11) [8 U.S.0 § 1251(a)(11)1—Convicted of narcotics
                       violation
ON BEHALF OF RESPONDENT:                            ON BEHALF OF SERVICE:
  Stephen E. Mander, Esquire                          Scott Dunn
  2121 Ponce De Leon Boulevard                        General Attorney
  Suite 711
  Coral Gables, Florida 33134

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


   In a decision dated April 8, 1986, the immigration judge terminated
deportation proceedings in the respondent's case. The Immigration
and Naturalization Service has appealed from that decision. Because
there is an issue concerning the propriety of the filing of the appeal, we
will accept jurisdiction by certification pursuant to 

(c)
(1988). The appeal will be dismissed.
   The respondent is a 33-year-old native and citizen of Colombia. He
first entered the United States as a nonimmigrant visitor in 1968 and
has remained here since that time. On April 12, 1978, his status was
adjusted to that of lawful permanent resident pursuant to section 245
of the Immigration and Nationality Act, 

 (1982). On
June 26, 1978, the respondent was convicted in the Circuit Court of
the Eleventh Judicial Circuit of Florida in and for Dade County,
Florida, for the possession and sale or delivery of a controlled
substance, to wit: cocaine, in violation of Florida Statutes section

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                                                  Interim Decision #3115

893.13, as well as for conspiracy to sell or deliver the same. On July 23,
1980, a Notice of Intent to Rescind the respondent's lawful permanent
resident status was issued and, in a decision dated July 1, 1983, the
district director rescinded the respondent's status. This decision was
personally served on the respondent on April 25, 1985. On that date,
an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of
Alien (Form I-221S) was also issued in the respondent's case, alleging
that he was deportable as a nonimmigrant who remained longer than
permitted in violation of section 241(aX2) of the Act, 

(a)(2) (1982), as a result of the rescission of his permanent
resident status, and alleging that he was deportable under section
241(a)(11) of the Act as a result of his criminal conviction.
  At the respondent's deportation hearing, the Service submitted the
June 26, 1978, record of conviction, the Notice of Intent to Rescind,
and the rescission order in the respondent's case, along with the last
extension of his nonimmigrant status which reflects that he was
authorized to remain in student status until November 25, 1970. In
rebuttal the respondent maintained that his attorney, in correspondence dated August 18, 1980, disputed the allegations in the Notice of
Intent to Rescind and requested a hearing before an immigration judge
in that matter. He also submitted an affidavit from the attorney who
assisted the respondent's counsel in the rescission case. In this
affidavit, the attorney avers that such response was timely mailed to
the Service. On this basis, the respondent maintains that the district
director's decision rescinding his permanent resident status was
invalid for lack of jurisdiction pursuant to 

 (1980),
that he remains in lawful status, and that he is eligible for relief from
deportation pursuant to section 212(c) of the Act, 

(c)
(1982). At his deportation hearing, the respondent also disclosed that
on January 15, 1986, he filed a motion to reopen rescission proceedings with the district director. With this motion, the respondent
included documentation indicating that he timely filed an answer
denying the allegations contained in the Notice of Intent to Rescind
and that he requested a rescission hearing before an immigration
judge. In correspondence dated January 30, 1986, the district director
responded to the respondent's motion in an ambiguous manner,
stating that the Service had no record of the respondent's response to
the Notice of Intent to Rescind and that the respondent's motion
should be addressed to the immigration judge. In rebuttal, at the
deportation hearing the Service offered a certificate of nonrecord
stating that a search of its records did not show that the respondent
requested a rescission hearing.
  In his consideration of the respondent's case, the immigration judge
found that rescission of the respondent's permanent resident status

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Interim Decision #3115

was invalid because the Service had not demonstrated that the
respondent was personally served with the Notice of Intent to Rescind
pursuant to 

 (1980). On appeal, the Service asserts
that the respondent conceded he was served with the Notice of Intent
to Rescind and that rescission of the respondent's permanent resident
status was proper. The respondent maintains on appeal that, pursuant
to Matter of Saunders, 

 (BIA 1977), termination of
the deportation proceedings is correct. In Matter of Saunders, the
Board ordered deportation proceedings terminated where the respondent had his permanent resident status rescinded by the district
director in a procedure where the notice instituting those rescission
proceedings was inadequate under 

 (1974) and did
not give the respondent an opportunity to be heard.
   Based upon our review of the record, we find that the immigration
judge lacked jurisdiction in deportation proceedings to reconsider the
district director's rescission order. We note that 

 (1988)
nowhere provides for consideration by the immigration judge of such
decisions of the district director and that enumeration of the Board's
appellate jurisdiction does not include consideration of the district
director's decision in rescission matters. See 

(b)(8)
(according the Board appellate jurisdiction concerning decisions of the
immigration judge in rescission proceedings), 246.2 (1988). To Lhc
extent that Matter of Saunders, supra, implies that the immigration
judge or this Board has jurisdiction over the district director's decision
in rescission matters, we withdraw from its holding.
   The record reflects, however, that the respondent filed a motion to
reopen rescission proceedings with the district director. Such motion
was properly addressed to the district director, who erroneously
referred this matter to the immigration judge. See 

(1986); see also Matter of Volos, 

 (BIA 1967). On this
basis we will leave the immigration judge's decision to terminate the
deportation proceedings in effect in order to afford the district director
a further opportunity to adjudicate the respondent's motion to reopen
rescission proceedings. When the issues involving the rescission
proceeding are resolved, deportation proceedings can be reinstituted if
appropriate.
   ORDER:        The appeal is dismissed.




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