Interim Decision #3128 

MATTER OF KEYTE 

In Exclusion Proceedings 

A-27261877 

A-27261878 

A-27261879 

A-27261880 

A-27261881 

Decided by Board February 28, 1990 

Departure from the United States by an applicant for admission in exclusion 

proceedings after the taking of an appeal from the immigration judge's order denying 

admission does not constitute withdrawal of the appeal_ 

EXCLUDABLE: Act of 1952—Sec. 212(a)(14) (8 U.S.C. § 1182(a)(14)1—No valid 

labor certification 

Sc. 212(a)(20) [8 § 1182(a)(20))—No valid 

immigrant visa 

ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE: 

Stephen D. Quinn, Esquire Melainie Fitzsimmons 

735 Bishop Street 425 Dillingham TransportaHonolulu, Hawaii 96813 tion Building 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated. April 22, 1986, the immigration judge found the 

applicants excludable as charged and ordered them deported from the 

United States. The applicants have appealed from that decision. The 

appeal will be dismissed. 

On appeal, the Immigration and Naturalization Service discloses 

that after filing this appeal, the applicants departed from the United 

States on September 16, 1986. They returned on April 1, 1987, and 

again sought admission as nonimmigrant visitors and were again 

placed in exclusion proceedings. The Service further notes that the 

applicants subsequently departed from the United States on August 

10, 1987, and returned to New Zealand. The Service maintains that 

the applicants' conduct constitutes a withdrawal of the appeal. We 

disagree. The filing of a written withdrawal of the appeal would have 

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Interim Decision #3128 

rendered final the decision of the immigration judge to the same extent 

as if no appeal had been taken. See 8 C.F.R. § 3.4 (1989). However, no 

valid withdrawal has been submitted.' The applicants' departure in 

and of itself does not necessarily constitute a withdrawal of the appeal. 

The last sentence of 8 C.F.R. § 3.4 (1989), which by its terms applies 

only to a person "who is the subject to deportation proceedings" is not 

controlling. The departure pending appeal of an alien who has been 

stopped at the border and ordered excluded is not necessarily 

incompatible with a design to prosecute the appeal to a conclusion. 

Furthermore, we do not consider the applicants' appeal to be moot, 

since a resolution of the appeal adverse to the applicants would still 

have legal consequences. See section 212(a)(16) of the Immigration 

and Nationality Act, 8 U.S.C. § 1182(a)(16) (1982). We note that the 

cases cited by the Service, Matter of G-B-, 6 l&N Dec. 159 (BIA 1954) 

and Matter of Kennedy, 13 I&N Dec. 242 (BIA 1969), for the 

proposition that the applicants, by their conduct, have withdrawn their 

appeal are distinguishable because these cases involve an alien's 

admission to this country subsequent to an appeal of an exclusion 

order. 

In spite of our finding that the appeal has not been withdrawn, we 

need not reach its merits. In their Notice of Appeal (Form I-290A) the 

applicants stated as their reason for the appeal that the decision of the 

immigration judge was unfair. The applicants indicated that they 

would submit a brief in support of their case. On August 7, 1987, a 

copy of the transcript of the proceeding was mailed to the applicants 

but no brief has yet been submitted. The applicants have offered only a 

generalized statement of their reason for the appeal and have neglected 

to specify whether the alleged error in the immigration judge's decision 

lies with his interpretation of the facts or his application of legal 

standards. We therefore conclude that the appeal should be summarily 

dismissed pursuant to 8 C.F.R. § 3.1(dX1-0(1) (1989). See Matter of 

Holguin, 13 UN Dec. 423 (BIA 1969); see also Matter of Lodge, 19 

I&N Dec. 500 (BIA 1987); Matter of Valencia, 19 I&N Dec. 354 (BIA 

1986). 

ORDER: The appeal is summarily dismissed. 

I We note that -there is correspondence from a family friend stating that the applicants 

wished to withdraw their appeal, but there is no evidence that the applicants, who have 

been represented throughout these proceedings by an attorney, authorized their friend to 

take such action., 

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