Interim Decision #2293 

MATTER OF LEPOFSICY 

In Exclusion Proceedings 

A-20127580 

A-2059813.9 

Decided by Board June 6, 1974 

The immigration judges order in exclusion proceedings permitting the inadmissible applicants to withdraw their applications for admission conditioned upon 

their departure from the United States within one month was an infringement on the discretionary parole authority vested in the district director 

under 8 CFR 212.5(a); such parole authority is lacking to both the Board and 

immigration judges. 

EXCLUDABLE: Act of 1952—Section 212(a)(ZO) 18 U.S.C. 11.82(a)(20)]—Immi 

grants—no visas (both applicants). 

ON BEHALF OF APPLICANTS: Ernest C. Lee, Esquire 

1430 W. Peachtree Street, N.W. 

Atlanta, Georgia 30309 

The applicants, husband and wife, are natives and citizens of 

Canada who arrived in the United States in 1972 and were paroled 

into this country for the purpose of disposing of property here. In a 

decision dated September 19, 1973, the immigration judge found 

both applicants excludable as charged. He entered an order permitting the applicants to withdraw their applications for admission and to depart from the United States by midnight on October 

19, 1973. An alternative order was entered ordering their exclusion 

and deportation from the United States in the event of failure to 

depart as required. The male applicant has appealed from that 

decision. Since the female applicant's name is not on the Notice of 

Appeal, we will take her case on certification pursuant to 8 CFR 

3.1(c) in order to avoid any jurisdictional problem. 

The record clearly shows that the applicants wish to remain in 

the United States permanently while the male applicant operates 

and cares for his place of business. We agree with the immigration 

judge's conclusion that the applicants are immigrants, and are 

therefore excludable under section 212(aX20) of the Act because 

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Interim Decision #2293 

they are not in possession of valid unexpired immigrant visas or 

other valid entry documents as required by the Act. 

The immigration judge unquestionably had the power to allow 

the applicants to withdraw their applications for admission at the 

time of the hearing. However, .by entering an order allowing 

withdrawal upon departure from the United States within one 

month, the immigration judge attempted to authorize the applicants to remain in this country conditionally for that period. Such 

an order was an infringement on the discretionary authority of 

the District Director under 8 CFR 212.5(a) to parole inadmissible 

aliens into the United States under such terms and conditions as 

he might deem appropriate. 

Both the immigration judge and the Board lack authority to 

exercise the parole power vested in the District Director by 8 CFR 

212.5 (a). Matter of Conceiro, Interim Decision 2183 (BIA 1973), affd 

Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 1973). Therefore, the 

conditional order entered in this case was inappropriate; the 

applicants could have been offered an opportunity to withdraw 

their applications at the time of the hearing, and if they declined 

to do sn, their immediate exclusion and deportation should have 

been ordered. That course would still have left it open to the 

District Director, in his discretion, to parole them in pending 

execution of the exclusion order. 

On appeal, counsel urges that the applicants be allowed to 

remain in the United States pending processing of their applications for immigrant visas. We realize that this case presents 

sympathetic factors which led the immigration judge to attempt to 

fashion some sort of relief for the applicants. However, the authority to stay the deportation of excludable aliens or to allow such 

aliens to remain here on parole is vested solely in the District 

Director. 8 CFR 237.1; 8 CFR 212.5(a). Consequently, we must 

dismiss the appeal and order that the applicants be excluded and 

deported from the United States. 

ORDER: The appeal is dismissed. 

Further order: The order of the immigration judge is withdrawn. 

Further order: The applicants are excluded and shall be deported from the United States. 

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