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, 16 I&N Dec. 326 (BIA 1977), modified. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)1—Nonimmigrant—remained 

longer than permitted 

Sed. 241(a)(11) [8 U.S.C. § 1251(a)(11)3—Convicted of narcotics 

violation 

ON BEHALF OF RESPONDENT: 

Stephen E. Mender, Esquire 

2121 Ponce De Leon Boulevard 

Suite 711 

Coral Gables, Florida 33134 

ON BEHALF OF SERVICE: 

Scott Dunn 

General Attorney 

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 8 C.F.R. § 3.1(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, 8 U.S.C. § 1255 (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district director rescinded the respondent's status.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, 8 U.S.C. 

§ 1251(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 8 C.F.R. § 246.3 (1980), 

that he remains in lawful status, and that he is eligible for relief from 

deportation pursuant to section 212(c) of the Act, 8 U.S.C. § 1182(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 

89 
.1111.1...1.4.1.11 ....1.0.21.•11 77,,1 1 J 

was invalid because the Service had not demonstrated that the 

respondent was personally served with the Notice of Intent to Rescind 

pursuant to 8 C.F.R. § 246.1 (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, 16 I&N Dec. 326 (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 8 C.F.R. § 246.1 (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 8 C.F.R. § 103.5 

(1986); see also Matter of Volos, 12 I&N Dec. 44 (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. 

90