Interim Decision #2069 

MATTER OF VARGAS-MOLINA 

In Exclusion Proceedings 

A-18863065 

Decided by Board January 8, 1971 

An applicant for admission, whether or not the application is made at a 

land port, and whether or not the special inquiry officer has entered a decision, may not withdraw his application as a matter of right; however, 

the special inquiry officer, in his discretion, may permit withdrawal of an 

application for admission if justice may best be served by permitting the 

withdrawal. [Matter of Estrada-Tena, 12 I. & N. Dec. 429, overruled; 

Matter of Le Floch, Interim Decision No. 1970, modified.] 

EXCLUDABLE: Act of 1952—Section 212(a) (23) [8 U.S.C. 1182(a) (23)]—

Convicted of illegal importation of marihuana. 

Act of 1952—Section 212(a) (26) [8 U.S.C. 1182(a) (26)]—

Nonimmigrant not in possession of valid visa. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Pro se Irving A. Appleman 

Appellate Trial Attorney 

The special inquiry officer excluded the applicant on the grounds 

stated in the caption and certified the case to the Board for final 

decision. No change will be made in his order. 

This case concerns the right of an applicant for admission to 

withdraw his application before the special inquiry officer enters 

an order in exclusion proceedings. 

The applicant, a 31-year-old single male, a native and citizen of 

Colombia, applied for admission in June 1969 as a nonimmigrant 

visitor for pleasure at San Juan, Puerto Rico. The Service 

learned that his nonimmigrant visa had been irregularly issued 

and that he had illegal possession of marijuana. The Service paroled him into the United States under section 212(d) (5) of the 

Act so that he could be prosecuted for possession of the mari-

. juana. He was convicted on August 14, 1969 in the United States 

District Court for Puerto Rico for illegally importing marijuana. 

A Service officer questioned the applicant on August 14, 1969 

concerning his immigration status. The applicant attempted to 

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Interim Decision #2069 

withdraw his application for admission and stated that he desired 

to return to Colombia. However, he was brought before a special 

inquiry officer in exclusion proceedings. Here he again sought to 

withdraw his application for admission. His request was refused 

and he was excluded as we have previously stated. 

The regulations and statutes do not provide for the situation 

before us. Three cases must be considered. 

In Matter of Estrada-Tena, 12 I. & N. Dec. 429 (BIA, 1967), 

an exclusion hearing, the applicant for admission attempted to 

withdraw his application before the special inquiry officer entered 

gis decision. We held that the applicant had the right to withIraw his application. We found a practice existed whereby orgiiarily the Service permitted a withdrawal. 

In Matter of Le Floch, Interim Decision No. 1970 (BIA, 1969), 

ve held that after the special inquiry officer had entered an order 

d exclusion, the applicant had no right to withdraw his applicaion for admission. We indicated, however, that the board or the 

pecial inquiry officer could, as a matter of discretion, permit the 

vithdrawal of an application for admission if a miscarriage of 

ustice would otherwise result. 

D'Agostino v. Sahli, 230 F.2d 668 (5 Cir., 1956), a habeas corus proceeding, involved an alien deported to the United States 

y the Mexican Government. After the United States authorities 

xcluded him, he was turned over to the United States Marshal in 

mnection with a narcotic charge pending against him in New 

*ork City. The court held that a person presented at a port of 

itry, whether voluntarily or otherwise, comes within the excluonary provisions of the Act and that the Service, therefore, had 

e authority to examine him, to exclude him, and to transfer 

stody to the Marshal. The case therefore indicates that once an 

ien comes within the jurisdiction of the Service in an exclusion 

oceeding, he has no right to defeat this jurisdiction by withawing his application for admission. 

An applicant for admission who comes under the Service jurisAion should not have the power to compel the Service to relinish jurisdiction. Consideration of an application calls for 

ocation of Service resources and expenditure of public funds. 

to orderly, expeditious and efficient disposition of an application 

the applicant or to deny permission for such withdrawal. This 

in accord with past practice in which the Service permitted 

thdrawals in some cases and not in others. We therefore rule 

at an applicant for admission, whether or not the application is 

ide at a land port, and whether or not the special inquiry 

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Interim Decision #2069 

officer has entered a decision, may not withdraw his application 

as a matter of right. He may be permitted to withdraw his application if justice may best be served by permitting the withdrawal. 

Matter of Estrada-Tema, supra, is overruled. Matter of Le 

Flock, supra, is modified insofar as its language is in conflict 

with this decision. 

ORDER: It is ordered that no change be made in the special inquiry officer's order. 

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