Interim Decision #3168 

MATTER OF SILVA-RODRIGUEZ 

In Deportation Proceedings 

A-30542672 

Decided by Board March 27, 1992 

An immigration judge in deportation proceedings did not act with good cause by 

granting a 1-year continuance so that the respondent would have more time to establish 

rehabilitation in furtherance of his application for a waiver of inadmissibility under 

section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Sapp. II 

1990). Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA 1988), followed. 

CHARGE; 

Orden Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)j—Convicted of 

aggravated felony 

Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(01—Convicted of 

controlled substance violation 

ON BEHALF OF RESPONDENT: 

Paul M. Douglass, Esquire 

Douglass, Chew and Chew 

604 Myrtle Avenue 

El Paso, Texas 79901 

ON BEHALF OF SERVICE: 

Thomas R. Murphy 

General Attorney 

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

The record reflects that the respondent is a native and citizen of 

Mexico, who was admitted to the United States on May 8, 1970, as a 

lawful permanent resident. On February 7, 1989, he was convicted of 

delivery of a controlled substance in the 168th District Court of El 

Paso County, Texas. As a result, the Immigration and Naturalization 

Service issued an Order to Show Cause, Notice of Hearing, and 

Warrant for Arrest of Alien (Form I-221S), charging the respondent 

with deportability pursuant to the grounds set forth above. 

At his deportation hearing, the respondent conceded deportability 

and applied for a waiver of inadmissibility under section 212(c) of the 

Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. II 1990). 

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Interim Decision #3168 

On September 26, 1991, after the presentation of evidence, ,the 

immigration judge ordered the hearing continued for 1 year so as to 

allow the respondent an opportunity to establish rehabilitation. The 

immigration judge stated that at the end of this period, he would grant 

section 212(c) relief if the respondent demonstrated rehabilitation and 

otherwise would order the respondent deported to Mexico. 

The Service has filed an interlocutory appeal with respect to the 

immigration judge's ruling. In particular, it cites to our decision in 

Matter of Garcia-.Reyes, 19 I&N Dec. 830 (BIA 1988), and argues that 

the immigration judge was without authority to order such a continuance. For his part, the respondent, through counsel, seeks to 

distinguish that precedent from the facts of this case. 

As a primary matter, we point out that the Board does not 

ordinarily entertain interlocutory appeals. See Matter of Guevara, 20 

I&N Dec. 238 (BIA 1990, 1991). However, we have on occasion ruled 

on the merits of interlocutory appeals where we deemed it necessary to 

address important jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the 

handling of cases by immigration judges. Id. We find that the Service's 

interlocutory appeal satisfies this criteria. 

Turning to the merits of the issue before us. we note that in Matter 

of Garcia-Reyes, supra, we held that an immigration judge should not 

grant, sua sponte, a 6-month continuance so as to enable an alien to 

show rehabilitation, where there was no evidence that the alien was 

eligible for any form of relief for which rehabilitation would be 

relevant. Id. at 832. We acknowledge the accuracy of the respondent's 

appellate observation that, in contrast to Matter of Garcia-Reyes, 

rehabilitation is an integral part of the relief which he seeks in the 

matter at hand, i.e., a section 212(c) waiver. See, e.g., Matter of 

Edwards, 20 I&N Dec. 191 (BIA 1990). Nevertheless, under the 

circumstances of this case, we are not persuaded by the respondent's 

attempt to distinguish Matter of Garcia Reyes. 

Specifically, in that decision, we additionally relied upon the fact 

that the 6-month continuance granted by the immigration judge 

appeared to be inconsistent with section 242(i) of the Act, 8 U.S.C. 

§ 1252(i) (1988), which provides that deportation proceedings should 

be initiated as expeditiously as possible after the date of a conviction. 

See Matter of Garcia-Reyes, supra, at 832. We find that, as a practical 

matter, the purpose of this statute is circumvented if deportation 

proceedings, once promptly initiated by the Service, are unduly 

I The record is missing various exhibits, such as the respondent's application for relief 

and the documentation relating to his criminal history. However, this material is not 

essential to our analysis. 

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Interim Decision #3I68 

delayed by an immigration judge. Cf. Matter of Quintero, 18 I&N Dec. 

348, 350 (BIA 1982) (the prosecutorial discretion exercised by granting 

deferred action status, which may be requested at any stage of a 

deportation proceeding, is committed exclusively to the enforcement 

officials of the Service); Matter of Yazdani, 17 I&N Dec. 626, 630 (BIA 

1981) (so long as the enforcement officials of the Service choose to 

initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge must go forward). 

With regard to the immigration judge's apparent justification for 

the continuance in this matter, we acknowledge that confined aliens 

and those who have recently committed criminal acts will have a more 

difficult task in demonstrating rehabilitation than aliens who have 

committed the same offenses in the more distant past. See Matter of 

Marin, 16 I&N Dec. 581, 588 (BIA 1978). In any case involving 

discretionary relief, the timing of the issuance of an Order to Show 

Cause by the Service can have a significant effect on the circumstances 

relevant to the exercise of discretion. Id. at 589. However, this fact 

alone does not mandate that proceedings should be delayed so as to 

afford an alien a better opportunity to prove rehabilitation. Id. 

Finally, we consider that, in essence, the immigration judge 

conditionally granted a section 212(c) waiver in this case. In particular, 

he stated that he would award that relief if, at the end of a year, he was 

convinced that the respondent had avoided further wrongdoing. We 

note, however, that there is no authority for the provisional grant of a 

waiver of inadmissibility. See Matter of Przygocki, 17 I&N Dec. 361 

(BIA 1980). 

While we are sympathetic to the desire of the immigration judge to 

fashion a fair result in this matter, the I -year continuance was without 

"good cause." See 8 C.F.R. § 3.27 (1991). Accordingly, we will 

remand the record to the immigration judge so that he may schedule a 

prompt final session of the respondent's deportation hearing, at which 

he should resolve any outstanding issues and render a decision on the 

merits. 

ORDER: The record is remanded to the immigration judge for 

further proceedings consistent with the foregoing opinion. 

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