Interim Decision #1695 

MATIER or RANGEL-CANrII 

In Exclusion Proceedings 

A-8393859 

Decided by Board February 2, 1927 

Right of appeal lies with the Service from a decision of a special inquiry officer UJI a motion to reopen an exclusion proceeding. 

EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. i182(a) (20.))—No valid 

immigrant visa. 

ON Brateze or APPLICANT: 

Carlos Castillon, Esquire 

Laredo National Bank Bldg. . 

Laredo, texas WOO 

_ON =tam or Osumi: 

B. A.. Vielhaber 

Appellate Trial Attorney 

The special inquiry officer certified his order reopening exclusion 

proceedings which had terminated in an order of exclusion on Decemher,fir1204.. The-Seraice contends that the special inquiry officer was 

without the power to•reopen the case. • 

.Applicant, .(1 42-year-old married male, a native and citizen of 

Mexico, who was admitted for permanent residence on November 8, 

1952 and either resided in the United States or was a commuter until 

186,2, when, he wad insured and returned•to klexico• to recuperate. He, 

was exellidecl in May 1964. when he applied to reenter. He took no 

appeal. 

On August 25,1066 the applicant secured an attorney .and filed 

a motion for reopening of,his application for admission•as a•return-: 

lug lawful reaident. Igkis his purpose atthe reopened hearing to establish that he had been physically disabled during the period of his 

absence and that he •was now physically able and willing to seek reemployment in the United States. 

The motion was opposed by the trial attorney on the ground that 

the .applicant's exclusion could not be reconsidered because he hut 

failed to show a gross miscarriage of justic.0 or a deprivation of due 

process. By later brief and at oral argument the Service contended 

that the special inquiry officer did not have the authority to open an 

73 
Interim Decision #1695 

exclusion proceeding after a final order of exclusion and deportation 

had been executed. 

On October 13, 1966 the special inquiry officer ordered proceedings 

reopened. He ruled that he had the authority to reopen the exclusion 

proceeding without finding that there had been a gross miscarrage 

of justice. He pointed out that since an. alien unlawfully in the 

United States could file a motion to reopen after he had been ordered 

deported'it would be inequitable if a lawful resident seeking to return 

in a. lawful manner could not file such a motion after he had been 

excluded. He believes that the delegation of the Attorney General's 

authority to conduct exclusion and expulsion proceedings which was 

made to the special inquiry officer (8 OFR 103.1(a)) gives him the 

power to reopen an exclusion proceeding as well as an expulsion 

proceeding. 

We do not think the administrative authorities lose the right to 

reopen an exclusion case because of the passage of time (see 9 F.R. 

5767 (1944)). The passage of tune is only one factor which must be 

considered in deciding whether a case should"be reopened. We need 

not go into this further because in the instant case, a simple method 

of obtaining a reconsideration of the exclusion proceeding exists. The 

applicant may make a new application for admission. 

The Service asks for a ruling on the special inquiry officer's holding 

that the Service has no appeal from his decision reopening the exclusion prodeeding. Regulations must be read,to afford fair, simplerand 

speedy methods for doing the work assigned by law. In an exclusion 

case, it -is the responsibility,of the District'Directrir; through an appeal,.to present his opinion that an applicant for admission should 

be excluded. To deny the Service an appeal on a motion to reopen an 

exclusion proceeding could mean that the proceeding could be held 

for reasons and purposes the Board would not sustain on the Service' 

appeal. A review of the special inquiry officer's decision on a motion 

to reopen, permitting the Service to present its point of view, could 

thus avoid delay, work and expense to both the applicant and the 

Service. We conclude that the Service has the right to appeal a special 

inquiry officer's order on a motion to reopen an exclusion case. 

ORDER: It is ordered. that the special inquiry officer's order reopening proceedings be and the same is hereby withdrawn. 

It is further ordered that the applicant's motion for reopening of 

proceedings be and the same is hereby denied •without prejudice to 

his reapplication for admission. • • 

74