RODRIGUEZ-ESTEBAN

Interim Decision #3115




              MATTER OF RODRIGUEZ-ESTEBAN

                         In Deportation Proceedings

                                   A-18234358

                      Decided by Board July 13, 1989

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

 (BIA 1977), modified.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [

(a)(2)1—Nonimmigrant—remained
                      longer than permitted
                    Sed. 241(a)(11) [

(a)(11)3—Convicted of narcotics
                      violation
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE:
  Stephen E. Mender, 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, 19846, 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

                                         88
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district director rescinded the respondent's status.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(a)(2) 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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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, 

 (NA 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 8 C.F.R_ § 246 (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 8 CRP— §§ 3_1(6)(8)
(according the Board appellate jurisdiction concerning decisions of the
immigration judge in rescission proceedings), 246.2 (1988). To the
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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