Interim Decision #2176 

MATTER OF GAMBOA 

In Deportation Proceedings 

A-19921314 

A-19924404 

Decided by Board December 7, 1972 

Where it appears that an attempted appeal to the Board of Immigration Appeals 

is frivolous, or is otherwise subject to summary dismissal for lack of jurisdiction or other reason, the notice of appeal should not be rejected but should be 

forwarded to the Board for decision on the threshold isssue of appealability. 

To avoid unnecessary delay in such cases, the record need not ordinarily 

include a transcript of the hearing but should include the order to show cause, 

the special inquiry officer's order, the exhibits, the notice of appeal, and a 

memorandum from the District Director setting forth the basis for his belief 

that the appeal should be summarily dismissed. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Entry without 

inspection (both respondents). 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Otto F. Swanson, Esquire Charles Gordon 

215 West Fifth Street General Counsel 

Los Angeles, California 90013 

The record before us presents an important question of procedure which should be resolved. 

The material facts are not in dispute. The respondents are 

husband and wife, aged 24 and 20, respectively, both natives and 

citizens of Mexico. They both last entered the United States 

without inspection in February 1972 with the paid assistance of a 

smuggler. The husband had entered illegally twice before, the first 

time in 1969. He was granted voluntary departure that year but 

returned illegally shortly thereafter in February 1970 with the aid 

of a paid smuggler. He returned to Mexico in November 1971 and 

reentered with his wife not long thereafter in February 1972, 

when both were smuggled in. 

At the deportation hearing before the special inquiry officer on 

July 31, 1972, at which respondents were represented by present 

counsel, they admitted the truth of the factual allegations in their 

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respective orders to show cause, conceded deportability, and applied for the privilege of voluntary departure. In his oral opinion 

at the close of the hearing, the special inquiry officer commented 

on the husband's adverse immigration history and stated that if 

the husband's case alone were before him, he would have no 

hesitancy in denying voluntary departure. Noting the wife's 

youth, her lack of a previous immigration history, and the fact 

that she was expecting a child in September 1972, the special 

inquiry officer concluded that both respondents should be granted 

the relief sought and authorized voluntary departure on or before 

August 31, 1972. Counsel reserved the right of appeal to this 

Board, but was informed that in view of the voluntary departure 

grant no appeal would lie under the exception to 8 CFR 3.1(bX2). 1 

Notwithstanding this advice, on August 10, 1972 counsel for 

respondents filed with the Service a notice of appeal to this Board 

on the appropriate form and paid the required fee. The stated 

reasons for the appeal, which are quoted in the margin, did not 

refer to the amount of voluntary departure time. 2Oral argument 

before this Board was not requested. By letter dated August 14, 

1972, the District Director returned the notice of appeal to counsel 

"Din accordance with the provisions of 8 CIE, 3.1(bX2)." Counsel 

sent the notice of appeal back, with a letter which stated, in part: 

8 CFR 3.1(bX2) relates to appeals wherein the sole ground of appeal is that a 

greater period of departure time should have been fixed. You will note that 

these appeals are to the findings of the Special Inquiry Officer and not to the 

time fixed for departure. 

The Service again rejected the notice of appeal. In a letter to 

counsel dated August 24, 1972, the Acting District Director stated, 

in part: 

The matters referred to in your [notice of appeal] are confusing in that they do 

1 8 CFR 3.1(b): Appellate jurisdiction. Appeals shall lie to the Board of 

Immigration Appeals from the following: * * * 

(2) Decisions of special inquiry officers in deportation cases, as provided in 

Part 242 of this chapter, except that no appeal shall lie from an order of a special 

inquiry officer under § 244.1 of this chapter granting voluntary departure within 

a period of at least 30 days, if the sole ground of appeal is that a greater period of 

departure time should have been granted. 

2 This appeal is to the findings of the Special Inquiry Officer that the male 

respondent is not worthy of a grant of voluntary departure by virtue of having 

been "smuggled into the United States." 

Inasmuch as this was the sole "adverse" factor, such finding constitutes an 

abuse of discretion. Entry in this manner is not relevant to an application for 

such relief. 

To allow the record to so stand will operate to prejudice future applications for 

benefits. The humanitarian aspects presented in the hearing should have 

resulted in a grant of the relief requested without the findings described above. 

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not reflect the true picture of what transpired during the deportation hearings 

of the above-named respondents. 

Your clients admitted all allegations and conceded deportability and requested 

voluntary departure. The [Special] Inquiry Officer rendered a summary decision 

on Form 1-39, and granted thirty (30) days voluntary departure. The only 

"findings of facts" which appeared on the record, are that the respondents have 

been found deportable, and were granted the relief requested. 

Counsel thereupon sent the notice of appeal and related correspondence direct to this Board. At our request, the Service's 

General Counsel has supplied us with the administrative record 

and a statement of his views. Counsel has been afforded the 

opportunity to respond, but has not done so. The administrative 

record does not contain a transcript of the deportation hearing but 

we do not need it for purposes of the issues confronting us. 

We are aware that frivolous appeals are sometimes taken to this 

Board solely for purposes of delay and we have frequently expressed our disapproval of such tactics. See, e.g., Matter of Holguin, 

13 I. & N. Dec. 423 (BIA, 1969). "Delay as an end in itself, whether 

achieved by obstructionism or dilatory tactics, cannot in our view 

be considered a legitimate object," Matter of Lagui, 13 I. & N. Dec. 

232 (BIA, 1969), affirmed Laqui v. INS, 422 F.2d 807 (C.A. 7, 1970). 

Because of the automatic stay pending appeal afforded by 8 

CFR 3.6(a), the mere filing of a notice of appeal can in many cases 

provide the opportunity for long delay. In many Service districts 

such as Los Angeles, where there is an acute clerical shortage, the 

problem is aggravated by the large backlog of hearings awaiting 

transcription before the records on appeal can be forwarded to this 

Board. In such a situation, an attorney intent on delay can abuse 

the appellate process and obtain a long delay by the simple 

expedient of filing a tithely notice of appeal to this Board, paying 

the modest fee, and expressing some seemingly plausible ground 

for appeal, regardless of how lacking in merit the record ultimately 

reveals the appeal to be. It was to restrict these opportunities for 

abuse that our regulations were recently amended, 36 F.R. 316 

(January 9, 1971). One of the important changes was the elimination of the right of appeal altogether under the circumstances 

stated in the exception of 8 CFR 3.1(bX2), footnote 1, supra. 

Where it appears to a District Director that an attempted appeal 

comes within that provision or is otherwise subject to summary 

dismissal for lack of jurisdiction or other reason, it seems to us 

that the proper procedure is to have him forward the record to us 

for review as promptly as possible. To avoid unnecessary delay, 

the record need not ordinarily include a transcript of the hearing if 

the District Director is satisfied the issue can adequately be 

presented without it. The record should include the order to show 

cause, the special inquiry officer's order, the exhibits, the notice of 

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appeal, and a memorandum from the District Director (a copy of 

which should be served on counsel) setting forth the basis for his 

belief that the appeal should be summarily dismissed. If we should 

conclude that a transcript of the hearing is necessary for the 

proper disposition of the case, we would request it. 

Even where the District Director believes the appeal is frivolous 

or is otherwise subject to summary dismissal, he should not 

ordinarily take it upon himself to reject the notice of appeal.° In 

handling the preparation and transmittal of records on appeals 

under Part 3 of 8 CFR, the Service acts for the Board. Regardless 

of the insubstantiality of an appellant's contentions regarding 

appealability, when he refuses to accept Service advice that a case 

is nonappealable the correct procedure is to refer the record to the 

Board for decision on the threshold issue of appealability. It is 

improper, in our view, to deny the party access to the Board after 

he has expressed unwillingness to accept the Service's advice. We 

believe that questions as to the Board's jurisdiction should be left 

to the Board itself for decision. 

To discourage dilatory appeals, we shall continue, as heretofore, 

to adjudicate such cases on a priority basis. In transmitting the 

record in such a case to the Board, the District Director should 

appropriately flag it, so that the need for expedited handling is 

readily apparent. 

As counsel has pointed out, the notice of appeal filed in this case 

challenges the special inquiry officer's decision on a basis other 

than that stated in the exception to 8 CFR 3.1(bX2). It is true that 

some attorneys, actually intent only on delaying the ultimate 

departure time, studiously avoid any such statement in the notice 

of appeal and manage to contrive a stated ground of appeal which 

makes no mention of voluntary departure. The ingenuity and 

inventiveness of some attorneys in devising' grounds of appeal 

plausible on their face but bearing no realistic relation to the 

record is simply astounding. Whatever inferences one may draw as 

to the attorney's underlying motivation in such a ease, however, 

unless the ground articulated in the notice of appeal comes 

squarely within the terms of the regulation, we may not deny our 

jurisdiction to adjudicate the appeal. We therefore turn to the 

merits of the case before us. 

We use the term "ordinarily" advisedly. There will be times when the District 

Director will be justified in not sending us a record on appeal even where the 

appeal is specifically directed to us. For example, where through misinformation 

or the inadvertent use of an improper form (Form I-290A instead of I-290B), an 

appeal is taken to this Board instead of to a Regional Commissioner from a sixth 

preference visa petition denial, the District Director should direct the record to 

the Regibnal Commissioner rather than to us. 

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Counsel does not attack the fact findings on which the conclusion of deportability is based or the conclusion of deportability 

itself. He is in no position to challenge the denial of any form of 

discretionary relief from deportation, for the special inquiry officer 

granted respondents the only form of discretionary relief for which 

they applied or are eligible, voluntary departure. In essence, what 

counsel excepts to is the special inquiry officer's statement that 

the male respondent's three illegal entries constitute adverse 

factors which would warrant denial of voluntary departure in his 

case if it were not coupled with that of his wife. Counsel asserts 

that the manner of entry is not a relevant factor in exercising 

discretion on an application for voluntary departure; that the 

inclusion of such a statement in the special inquiry officer's 

opinion will prejudice the male respondent in making future 

applications for benefits under the immigration laws; and that the 

humanitarian aspects of the case warrant the grant of the requested relief without mention of the manner of entry. 

We have considerable doubt whether the male respondent, as 

the beneficiary of the special inquiry officer's discretionary grant 

of voluntary departure, has standing to question the mental 

processes by which the special inquiry officer arrived at his 

conclusion that discretion should be favorably exercised. We need 

not resolve that doubt. Laying aside the question of standing and 

confronting the issues tendered on their merits, we conclude that 

the contentions advanced by counsel are completely without substance. 

The mere fact that an alien May be eligible for some form of 

discretionary relief does not mean that he must be granted that 

relief; discretion must still,be exercised, Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957). In exercising discretion on a voluntary 

departure application, the special inquiry officer may take into 

account many factors, including the alien's prior immigration 

history, the nature of his entry or entries (whether as crewman, 

stowaway, smuggled alien, alien in transit without visa, etc.), his 

violations of the immigration and other laws, and the like, Matter 

of M—, 4 I. & N. Dec. 626 (BIA, 1952); Matter of Pimentel, 12 I. & N. 

Dee. 50 (BIA, 1967); Matter of Wong, Interim Decision No. 1966 

(B IA, 1969). Discretion may be favorably exercised in the face of 

adverse factors where there are compensating elements such as 

long residence here, close family ties in the United States, or 

humanitarian needs, Matter of 5—, 6 I. & N. Dec. 692 (A.G., 1955). 

The special inquiry officer acted properly in balancing what he 

rightly considered to be adverse factors against the humanitarian 

needs of the female respondent and in articulating his analysis in 

his written opinion. In clearly stating the reasons for his decision, 

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the special inquiry officer carried out the normal responsibilities of 

his office. A special inquiry officer's decision is reviewable, on 

appeal by either the respondent or the Service, by this Board and 

ultimately by the courts. It is proper that he should clearly set 

forth the reasons for his decision, so that the respondent and the 

Service may be in a better position to appraise the desirability of 

appeal and so that a reviewing tribunal may be in a better position 

to assess his judgment. We can find no fault with the special 

inquiry officer for expressly stating why he did what he did. 

ORDER: The appeal is dismisled. 

Further order: The respondents are permitted to depart voluntarily in accordance with the terms of the special inquiry officer's 

order within 31 days from the date of this order or any extension 

beyond that date as may be fixed by the District Director; upon 

failure so to depart when and as required, the respondents shall be 

deported to Mexico as directed by the special inquiry officer. 

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