Interim Decision #2463 

MATTER OF RICCIO 

In Deportation Proceeding 

A-14778020 

A-14778031 

Decided by Board January 13, 1976 

Administrative discretion in suspension of deportation cases should be exercised without 

reliance on Congressional committee reports as assumed indicators of Congressional 

policy underlying the statute involved (Matter of Lee, 11 I. & N. Dec. 649, modified). 

Discretionary determinations must be based on the circumstances in the case under 

consideration. Favorable and unfavorable factors must be weighed. The method by 

which an al en has prolonged his stay in the United States is a relevant factor. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor 

remained longer (both respondents) 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Victor M. Ferrante, Esquire George Indelicato 

265 Golden Hill Street Appellate Trial Attorney 

Bridgeport; Connecticut 06604 

In a decision dated May 29, 1975, after a reopened hearing, the 

immigration judge denied the respondent's applications for suspension 

of deportation under section 244(a)(1) of the Immigration and Nationality Act in the exercise of his discretion, but granted the respondents the privilege of departing voluntarily in lieu of deportation. They 

have appealed from that decision. The record will be remanded. 

The respondents had been found deportable on April 6, 1967, and had 

been granted the privilege of voluntary departure. They did not take an 

appeal from that decision, and failed to depart voluntarily. Their departure was nct enforced during the pendency of three private bills filed in 

the Congress in their behalf. These bills were not enacted. The respondents were later granted extensions of voluntary departure time, and 

again failed to depart. Warrants for their deportation were issued on 

February 25, 1972. 

Counsel filed an application for a Writ of Habeas Corpus in the United 

States District Court for the District of Connecticut, on August 31, 

548 
interim itiecision /Fce*co 

1972. The Service did not act to deport the respondents during the 

pendency of the court proceeding. The application for the Writ of 

Habeas Corpus was not adjudicated. On February 21, 1973, the 

immigration judge denied respondents' motion for reopening and reconsideration. On September 19, 1973, they filed applications for suspension of deportation. The immigration judge granted a motion to reopen 

the proceedings, on January 22, 1974, so that their applications for 

suspension of deportation could be considered. 

In the reopened proceedings, the immigration judge concluded that 

the respondents were statutorily eligible for suspension of their deportation. Before denying their applications, in the exercise of administrative discretion, he quoted certain statements which the Committee on 

the Judiciary of the House of Representatives had made in H.R. Report 

No. 2151, September 28, 1966, 89th Cong., 2d Session. That report was 

almost identical with the report previously filed by the Committee on 

the Judiciary (H.R. Rep. No. 1167, October 14, 1965, 89th Cong., 1st 

Session), which we had discussed in Matter of Lee, 11 L & N. Dec. 649 

(BIA 1966). However, subsequently, in Asimakopoulos v. INS, 445 

F.2d 1362 (C.A. 9, 1971), the court pointed out that the House Judiciary 

Committee did not speak for the whole C6ngress, that its 1965 report 

was not an effort "to tell the Attorney General how he should exercise 

the discretion delegated to him," and that reliance on the Committee 

report could effectively preclude the required exercise of administrative 

discretion. Our decision in Matter of Lee, supra, was reversed, for 

"failure to exercise discretion." 

We hereby recede from that part of our opinion in Matter of Lee, 

supra, which assumed that the views expressed in the House Judiciary 

Committee report indicated a "Congressional policy underlying the 

statute involved." We had not intended to imply that the committee's 

report should govern or restrict the exercise of administrative discretion. To the extent that our decision in Matter of Lee, supra, has given 

that unintended impression, we hereby modify the decision. Administrative discretion in suspension of deportation eases should be exercised 

withot reliance on such committee reports as assumed indicators of 

Congressional policy. • 

Discretionary determinations must be based on the circumstances 

present in the case under consideration. Favorable and unfavorable 

factors must be weighed. The method by which an alien has prolonged 

his stay in this country is a relevant factor. 

We shall remand the matter to the immigration judge so that he may 

exercise administrative discretion without reliance on the committee 

report which he quoted. 

ORDER: The record is remanded to the immigration judge for 

further proceedings and a new decision_ 

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