MATTER or N-
IA DEPORTATION Proceedings
A-12281979
Decided by Board March 13, 1962
Adjustment of status—Section 245, Immigration and Nationality Act—Effect
of savings clause, Federal Register of December 19, 1961.
Denial on October 23, 1961, by the district director of an application for adjustment of status under section 245 of the Act became final when applicant failed to anneal therefrom. Such application may not be renewed
before, or considered by, a special inquiry officer in deportation proceedings
under regulations effective January 22, 1962, in the absence of new evidence
which could not have been discovered and presented for consideration at
the time of the prior adjudication (Par. preceding 8 CFR 103, 26 F.R. 12111,
December 19, 1961).
CHARGE :
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2 ) ]—Remained
longer than permitted after nonimmigrant admission (temporary
visitor).
BEFORE THE BOARD
DISCUSSION: This is an appeal from the order of the special
inquiry officer finding respondent deportable upon the ground
stated above and granting her voluntary departure. Briefs have
been filed by counsel for respondent and by the examining officer.
The appeal will be dismissed.
Respondent, a 55-year-old single female, a native and citizen of
Germany, was admitted to the United States as a visitor for
pleasure on July 7, 1961. Her stay was extended to September 6 1
196.Shefaildtoprwnheidfocsa
been admitted and is clearly deportable upon the ground stated
above.
Counsel contends that there was a denial of due process at the
deportation hearing in that an unqualified interpreter was used in
the deportation hearing_ The record reveals that at the respondent's hearing on January 2, 1962, she was advised that an official
German interpreter (who is elsewhere shown to be J—U—) would
translate all questions and matters and that if she did not understand him she was to advise the special inquiry officer (p. 2, hear-
581
in; January 2, 1962). The same interpreter was used at the continued hearing on January 5, 1962. After several questions were
addressed to the respondent which were apparently answered responsively, counsel objected to the use of the interpreter on the
ground that he did not believe a proper interpretation was being
given. The special inquiry officer asked the interpreter whether
he understood the respondent and whether the respondent understood him and the interpreter replied that he was satisfied that
this was the case. The objection of counsel was overruled and
nothing further appears in the record concerning the nature of the
interpretation. Attached to the appeal is an affidavit from the
respondent's nephew stating that he was present at the hearing; that
he is well qualified in the German languasee; that, numerous questions and answers were incorrectly interpreted; and that it is his
belief that ,Ite interpreter was not competent. No specific instance
of misinterpre t ation is set forth. No possible defense to the deportation proceeding based upon what the respondent "intended"
to say is offered, nor is any ground given for finding , respondent is
not deportable. Respondent's testimony at the hearing is consistent
with her affidavit made before. the Service using a different interpreter on December 14, 1961. We, believe the contention is without
merit.
Counsel contends that respondent was not given adequate notice
of the deportation hearing. The order to show cause was served
on December 26, 1961; counsel received a copy the following day.
Hearing was scheduled for January 2, 1962, and adjourned until
January 5, 1962, to enable counsel to be present. At the hearing
on January 5, 1962, the special inquiry officer offered counsel an
opportunity to consult with his client for several hours before proceeding with the case if counsel felt it was advisable, but the offer
was refused. We believe the record establishes that respondent
and counsel had adequate notice of the deportation hearing. Moreover,. as the examining officer points out, counsel had represented
respondent before the Service since prior to October 23, 1961.
Counsel contends that there was a denial of due process in that
respondent was not granted a continuance to prepare a defense and
to prepare application for discretionary relief. Since it is apparent from this record that the respondent who was admitted as a
visitor has remained longer than the time which was granted, it is
difficult to see what kind of defense could have been offered had
more time been made available and, in fact, at this late date counsel
offers nothing to show that a possible defense exists. The facts
previously outlined concerning the notice given respondent and
opportunities for presenting a defense adequately dispose of the
contention that she was not given an adequate opportunity to prepare a defense.
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We find nu denial of due process in failure to grant a continuance
for respondent to prepare an application for discretionary relief.
At the time of the hearing on January 5, 196, counsel moved for a
continuance to January 22, 1962, or sometime thereafter when new
regulations would become effective which, in his opinion, would
have, enabled the respondent to make an application for adjustment
of status under section 245 of the Immigration and Nationality
Act (8 1255) or section 245(h) of the Immigration tied
Nationality Act (8 U.S.C. 1253), and for voluntary departure. The
;examining, officer objected to a continuance on the ground that
relief under section 245 had already been applied for and denied
(October 23, 1061) and that no appeal was taken from such denial
although oee could have been taken (within la days). (Counsel
explains that no appeal was taken because of his belief that under
the new regulations he would have an opportunity to obtain a new
consideration of the application with an appeal to the Board
rather than to a representative of the Service.)
Failure to appeal from the denial of the application under section 245 in the hope that respondent would be able to make. a new
application for such relief before a special inquiry officer with an
appeal to the T3card under the preliminary proposals published
in Volume 26 of the Federal Register, pages 9858-9860, was not
justified by anything expressed in the proposals, nor did the proposals carry the implication that such relief would be available.
The purpose of the new regulations was not to provide an additional review of a decision denying an application under section
245 but to substitute review by the Board for review by the regional commissioner. Respondent could have had review of the
denial by the regional commissioner. On January 5, 1962, when
the motion for continuance was made, it was quite clear from the
regulations which were to become effective on January 22, 1962,
that an alien who had obtained a final decision on an application
under section 245 of the Act would not be entitled to a hearing
upon a new application and would not be entitled to reconsideration
of the application which had been denied, in the absence of proof
to the Board that the alien was in possession of evidence which was
material and which by due diligence could not have been discovered
and presented for consideration at the time of the prior adjudication
(par. preceding 8 CFR 103, 26 F.R. 12111, December 19, 1961).
Respondent's failure to seek review by the regional commissioner
neither gives him the right to obtain review by this Board nor the
right to have a de novo hearing upon his application. The decision
of the district director achieved finality before January 22, 1962.
It became the decision of the Board and will not be reconsidered
in the absence of proof that reconsideration is required because
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there exists evidence which is material and was not available and
could not have been discovered or presented at the prior hearing
(8 CFR 3.2, 27 F.R. 96-7, January 5, 1962). As to other discretionary relief, the application for voluntary departure made at the
hearing has been granted. The appeal reveals no desire to file an
application for relief under section 243(h) of tho Acf. However,
we shall permit such an application to be filed at a reopened hearing, if request is made for such action within seven days after
the date of this order. This action is not to be taken as an expression of opinion as to the desirability of filing such an application
nor as an expression of opinion upon the merits of an application
if one is filed. The action is taken solely as an administrative
measure of an impersonal nature to provide a procedure for application for relief without the necessity of having an application for
this purpose made to the Board.
We find no necessity for going into the issue of the voluntariness
of the nature of Communist Party membership respondent had in
Germany since deportation is not sought upon this ground and the
Service does not oppose the grant of voluntary departure.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that upon request made to the special inquiry
officer within seven days of the date of this order, he shall reopen
proceedings solely to provide respondent an oppertunity to file an
application for relief under section 243(h) of the Act and the special inquiry officer shall thereafter take such further action as he
may deem appropriate.
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