MAI:rt.:R. OF Al--
In DEPORTATION Proceedings
A-10594987
Decided by Board August 5, 1960
Adjustment of status—Section 245 of 1952 act—Board lacks juriesdiction to
review Regional Commissioner's action.
Jurisdiction delegated to the Board of Immigration Appeals under 8 CYR
3.1(b) does not include authority to review Regional Commissioner's denial
of application for adjustment of status under section 240 or tne 1952 Act.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 "U.S.C. 1251(a) (2)]—Remained
longer—nonimmigrant.
BEFORE THE BOARD
DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated March 24, 1960, finding the alien
subject to deportation on the charge stated in the order to show cause
and directing that he be granted the privilege of voluntary departure
in lieu of deportation with the further order that if the alien fails
to so depart, the voluntary departure privilege be withdrawn and
he be deported.
The facts of the case are fully set forth in the decision of the
special inquiry officer. Briefly, the record relates to a native of
Poland, a citizen of Argentina, 38 years old, male, who last entered
the United States at the port of Miami, Florida, on October 21, 1956,
and was admitted as a nonimmigrant visitor for pleasure. An application for adjustment of status to that of a permanent resident
pursuant to section 245 of the Immigration and Nationality Act was
filed on December 13, 1956, was denied by the District Director, New
York District, on August 13, 1959, and the denial was affirmed on
appeal to the Regional Commissioner on November 20, 1959. The
respondent was notified of the final decision on December 3, 1959,
and advised that ho was required to depart from the United States
on or before January 3, 1960. No further extension of stay was
authorized but the respondent has nevertheless continued to reside
in this country. Thereafter, deportation proceedings were instituted.
The evidence sustains the charge in the order to show cause.
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Counsel's contentions were raised below and are raised again in
connection with the appeal. Counsel contends that the respondent
was denied due process of law in the hearing which resulted in a denial of his petition for adjustment of status under section 245 of the
Immigration and Nationality Act and that this Board has authority
to review the propriety of and basis for the issuance of the warrant
of arrest or order to show cause which followed the denial of the
application under section 245 and the failure of the respondent to
depart within the time authorized. Counsel asserts that a failure of
due process is always reviewable and that this Board has authority
to so review under the regulations.
The regulations defining the Board's appellate jurisdiction are
contained in 8 CFR 3.1 (b). An examination of the seven subparagraphs under 8 CFR 3.1(h) reveals that they do not include appeals
from denials of applications for adjustment of status under section
245 of the Immigration and Nationality Act. Indeed, the regulations relating to adjustment of status, 8 CFR, Part 215, specifically
state that if the application for adjustment of status is denied, the
applicant shall be notified of the reasons thereof and of his right to
appeal in accordance with the provisions of Part 103. Section
103.1(e), Title 8, CFR, reserves to the respective Regional Commissioner all appellate jurisdiction specified in the chapter not reserved
to the Board of Immigration Appeals or to District Directors outside the United States.
Counsel argues that under 8 CFR 3.1(d), which describes the powers of the Board, there exists authority to consider his collateral
attack upon the Regional Commissioner's denial of the application
for adjustment of status under section 245. 8 CFR 3.1(d) provides
as follows:
. . Subject to asp) specific limitation prescribed by this chapter, in eonstaertug and Geteranning cases before it as provided in this part the Board
shall exercise such discretion and authority conferred upon the Attorney General by law - as Is appropriate and necessary for the disposition of the case ...
(Emphails supplied.)
It is believed that the emphasized specific limitations described,
as to appellate jurisdiction in 8 CFR 245.1, disposes of the argument
raised by counsel. A similar issue involving the provisions of
8 CFR 212.7(a) was under consideration in Mator of DoG ot‘ -
8 325. The question presented there was the authority of the
-
Board to grant a waiver in the light of the provisions of 8 CFR
2197(a), which require that an application be made with the
Service in accordance with established procedures. The Attorney
General•eld t1- ..t the Board's delegated authority, which is as broad
as the Attorney General's in the areas which are under its jurisdiction, is at the same time subject to specific limitations and falls short
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of the authority attempted to be exercised. The limits of the Board's
jurisdiction are described in 8 CFR 3.1 (b). However, decisions involving an application for exercise of the discretion and authority
contained in sections 5 and 7 of the Act of September 11, 1957 (and
also involving applications for adjustment of status under section
245 of the 1952 Act), are not among the decisions there listed to
which its appellate jurisdiction extends. It was accordingly held
that jurisdiction of the Board was not established and must, therefore, be said to reside in the Commissioner pursuant to the delegation
made by 8 CFR 2.1 (and in the instant case, to the Regional Cornmissioner as provided by the then 8 CFR 2.1). The Attorney General acknowledged that it was true, as urged, that the Board's powers
embraced "the exercise of such discretion and authority as is appropriate and necessary for the disposition of the case," but held that
these powers were subject to the limitations prescribed by the regulations and were confined to the jurisdiction in which the Board is
authorized to operate.
The decision of the Attorney General in Matter of DeG—, supra,
is equally applicable to and dispositive of the argument advanced by
counsel in regard to the proceedings under section 245 of the Immigration and Nationality Act. A collateral attack thereon cannot be
entertained in these expulsion proceedings. Upon a review of the
record of the deportation proceedings over which we have appellate
jurisdiction, the evidence sustains the finding of deportability. The
grant of the discretionary relief of voluntary departure appears to
be appropriate.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
'This is not to say that counsel is not free to raise his objection of lack
of due urocess or any other ground in an appropriate court proceeding. Ange-
/is v. Bouchard,
