Interim Decision #2954 

MATTER OF TORRE 

In Deportation Proceedings 

A-27009418 

Decided by Board January 25, 984 

(1) In an appeal from an immigration judge's decision in. a deportation case, the 

record of proceeding must always contain the immigration judge's order, the 

Order to Show Cause and Notice of Hearing (Form I-2Z1), any exhibits, and the 

Notice of Appeal (Form 1-290A). 

(2) Where it appears that an appeal may be appropriate for summary dismissal 

under 8 C.F.R. § 3.1(d)(1-a) (1984), either party may request that the immigration 

judge forward the case to the Board without a transcript of the hearing. 

(3) If the immigration judge determines that a transcript is necessary for proper adjudication of the appeal, he may direct that a transcript be included, and there 

shall be no appeal from this determination; otherwise, the immigration judge 

shall forward the request for review without a transcript to the Board for resolution, together with the other documents required to be included in the record. 

Matter of Gwrzboa,14 I&N Dec. 244 (BIA 1972), modified in part. 

CHARGE: 

Order: Act of 1952—Sec. 241(aX2) [8 U.S.C. § 1251(a)(2)]—Entered without inspection 

ON BEHALF OF RESPONDENT: 

Patrick Murpby, Esquire 

Peter Upton, Esquire 

American Friends Service Committee 

1205 Sunset Drive 

Miami, Florida 33143 

ON BEHALF OF SERVICE: 

Kenneth S. Hurewitz 

General Attorney 

BY: Milhollare, Chairman; 1V1uniatis, Dunne, Morris. and Vacca, Board Members 

In a decision dated September 30, 1983, an immigration judge 

found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as an 

alien who entered the United States without inspection by immigration officers. The respondent appealed. Counsel for the Immigration and Naturalization Service has requested that we summarily dismiss the appeal pursuant to 8 C.F.R. § 3.1(d)(1-a) (1984). He 

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Interim Decision #2954 

argues that the appeal is stated in generalized language, does not 

specify the reason for appeal, and is "patently frivolous and dilatory." The record will be returned to the immigration judge. 

The record file presently before us does not contain a transcript 

of the proceedings, or the immigration judge's order. In Matter of 

Gamboa, 14 I&N Dec. 244 (BIA 1972), we held, inter alia, that when 

it appears to the district director that a case is subject to summary 

dismissal, and the appeal can be adequately presented to the Board 

without a transcript of the proceedings below, he may forward the 

record to us for consideration whether review without a transcript 

is appropriate. We further held, however, that the record should 

always contain the immigration judge's order, the Order to Show 

Cause and Notice of Hearing (Form I-221), any exhibits, and the 

Notice of Appeal (Form I-290A), as well as a memorandum stating 

why the case should be summarily dismissed. As the record now 

before us does not contain the immigration judge's order, we 

cannot decide the appeal. Under Matter of Gamboa, return of the 

file to the immigration judge is necessary so that the decision can 

be transcribed and included in the record. 

In addition, however, we find that Matter of Gamboa, supra, 

must be modified. While the immigration judge has always had responsibility for the contents of the record file (Matter of Gibson, 16 

I&N Dec. 58 (BIA 1976)), previously it was the district director who 

had administrative control over the record file. For this reason, authority was provided to the district director to determine whether 

an appeal should be forwarded to the Board for a decision as to 

whether the appeal could be appropriately considered without a 

transcript. Since January of 1983, however, when the immigration 

judges were removed from the Immigration and Naturalization 

Service and made a part of a separate unit within the Department 

of Justice,' they have assumed administrative control over the 

records of proceedings. We have determined that under these new 

circumstances, a new procedure is required. In appropriate cases as 

described in Matter of Gamboa, supra, either party may request 

that the immigration judge forward the case to the Board without 

a transcript. Such a request must be served on the other side. Any 

response to such a request must be promptly filed. If the immigration judge initially concludes that a transcript is necessary to adequately adjudicate the appeal, he may direct that a transcript be 

included. An immigration judge's determination to require a tranThe immigration judges now come under the authority of the Office of the Chief 

Immigration Judge, which in turn is part of the newly formed Executive Office for 

Immigration Review. of which this Board is also a part. 

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Interim Decision #2954 

script is not appealable. Otherwise, the immigration judge shall 

forward the request for review without a transcript to the Board 

for resolution, together with the other documents specified in 

Matter of Gamboa. To the extent that Matter of Gamboa is inconsistent with our new holding, it is modified. However, the Gamboa 

requirements regarding the contents of the record file remain in 

effect. 

Accordingly, we will return the record to the immigration judge 

for further action pursuant to the foregoing opinion. 

ORDER: The record is returned to the immigration judge for 

further action consistent with the foregoing decision. 

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