Interim Decision 4t1687 

Mawr= or VOLOR • 

In Deportation Proceedings 

A-11587815 

Decided by Board January 23, .1967 

Neither the Board of Immigration Appeals nor Cie special inquiry officer has 

jurisdiction to consider in deportation proceedings the validity of the 1960 

older entered by the District Director rescinding respondent's adjustment of 

- status granted under section 245 of the Immigration and Nationality Act, as 

amended. 

CHARGE 

Order: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable 

at time of entry--section 212(a) (20)—no immigrant 

visa. 

ON BEHALF OF RESPONDENT : ON Bansis or &swim: 

Harold D. Safi; Esquire Irving A. Appleman 

15 Maiden Lane Appellate Trial Attorney 

New York. New York 10038 

Respondent's appeal from the order of the special inquiry officer 

finding him deportable on the ground stated above and granting him 

voluntary departure will be dismissed. 

Respondent, a 28-year-old male, a native and citizen of Greece, admitted as a crewman on March 15, 1958, deserted the vessel and married a United States citizen. He applied for adjustment of status 

(section 245 of the Act) on March 25, 1959. The Service granted his 

application on April 23, 1959. The Service notified respondent on 

May 16, 1960 that it proposed to rescind the adjustment—the Service 

believed that respondent obtained his adjustment on the basis of a 

fraudulent marriage. Respondent hired an attorney who by letter 

dated June 13, 1960 asked for an opportunity to present respondent's 

case. The Service notified counsel on June 17, 1960 that an interview 

was set for June 23, 1960. Counsel and respondent did not appear. On 

June 27, 1960, counsel was telephonically advised to appear -with the 

alien on July 1, 1960. Neither counsel nor the respondent appeared 

on this date. The District Director entered an order rescinding the 

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Interim Decision. #168T 

adjustment of status and on July 21, 1960 addressed letters to respondent and counsel advising them respondent's status had been rescinded 

Counsel's copy of the letter was delivered; respondent's copy, sent 

by certified mail, was returned to the Service as undeliverable. Respondent had moved a month or two after hiring his attorney. He 

thought that his attorney had told him that rescission proceedings had 

terminated favorably in his favor.. After receiving the advice, he did 

not agiin see his attorney. He did not file a change of address card.. 

He thought it was unnecessary to do so as he was a. permanent resident, 

and had an alien registration card. 

In March 1965, respondent returned to the United States after ir 

short stay in Mexico where he went to obtain a divorce. Sometime in 

1965, he applied for naturalization and then discovered that he was 

considered illegally in the United States. Deportation proceedings 

were started on June 10, i965. 

ReSriOndent is charged in deportation proceedings with having entered the United. States without a visa on his return from Mexico in 

1965. Counsel contends respondent did not need a visa upon this return 

because he had the alien 'registration card on which a legally resident 

alien can return to the United States and respondent must be considered a legally resident alien since the rescission, proceedings were 

invalid because of procedural defects, the lack of due process, the 

failure to permitte. present his .case and to,eiarnine the evidence 

against hini, •a4 thelabsence. ctf basis for rescission 

the apecial'inquiry 'cikeirrwhile permitting counsel to make his 

statement as to the rescission *weeding for the record., rePsed to 

Ciiiiiider; airy' attack' on the validity of the proceeding. 'The special 

inquiry officer pointed out that if it could be reopened, there would 

come into play the statutory provision barring the rescission of an 

adjustment of status after the passage of five years. Thus, even though 

a, justifiable case for rescission were established by the Service upon 

the reopened hearing, it would be prevented from rescinding the adjustment. The appellate trial attorney also contends that since the 

Service is content to stand upon the rescission record, respondent can 

obtain review by requesting the District Director to reconsider the 

rescission proceeding or by obtaining judicial review. He contends 

that neither the Board nor the special inquiry officer has jurisdiction 

to review the validity of the rescission proceeding. 

We do not believe that either we or the special inquiry officer have 

the jurisdiction to consider the validity of the rescission proceeding 

under the circumstances of this case. Under the regulations in effect 

at the time of the rescission, the order in a rescission proceeding was 

made by the District Director. (Appeal, if any, was to the Regional 

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Interim Decision #1687 

Commissioner.) (22 F.R. 9801 (1957), 23 F.R. 9124 (1958).) No regulation ever made the decision of the District Director that of the 

Board. 

A reconsideration of the District Director's decision must be made 

under present regulations. These regulations provide that a motion for 

reopening or reconsideration of a rescission proceeding is to be decided ". . . by the officer who has the jurisdiction over the proceeding 

or who made the decision." (8 CFR 103.5, 246.8, revised as of January 

1, 1965.) There is no rescission proceeding pending over which we have 

jurisdiction. The rescission decision was made by the District Director; 

an administrative reconsideration of the rescission order can be made 

only by him. Under the circumstances of this case, we are bound by 

the order rescinding the adjustment of status (see Matta?. of DeG--, 

8I. &N. Dec. 325). 

After the adjustment of status was rescinded, respondent was not 

a legally permanent resident. Upon his return to the United States 

from Mexico, he was making an "entry." He was then required to 

present a visa in order to obtain admission to the United States legally 

for permanent residence. Since he was without a visa and since there 

was no prejudicial error in the conduct of the deportation proceeding, 

we find the charge is sustained. 

Counsel's letter of December 28, 1966 and the Service reply of January 4, 1967 (served on counsel on the same date) have been considered. The evidence establishing that the respondent had no legal status 

in the United States when he left for Mexico, and.that he did not have 

a visa when he returned is chair

' 

 unequivOcal and convincing. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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