Interim Decision #2265 

MATTER OF VRETTAKOS 

In Deportation Proceedings 

A-15721298 

Decided by Board June 11, 1973 and March 5, 1974 

(1) The Board of Immigration Appeals lacks jurisdiction to review on direct 

certification a Regional Commissioner's determination of an application for 

permission to reapply for admission following deportation since such application does not come within the jurisdiction of the BOard as specified in 8 CFA 

3.1(b). 

(2) An immigration judge, like the Board of Immigration Appeals, is without 

authority in deportation proceedings to grant MOW pro tune permission to 

reapply for admission after deportation unless the granting of such application is appropriate and necessary for the complete disposition of the case, and 

is without authority to grant advance permission to reapply. 

CHARGE: 

order: Art of 1952—Section 24.1(a)(2) [8 U.S.C. 1251(&)(2)]—Crewman—ontorod 

the United States after being refused permission to 

land temporarily. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Rowena L. Vrettakos (respondent's wife) Irving A. Appleman 

4500 Cheltenham Drive Appellate Trial Attorney 

Bethesda, Maryland 20014 

Jack Wasserman, Esquire 

1707 "H" Street, N. W. 

Washington, D. C. 20006 

BEFORE THE BOARD 

(June 11, 1973) 

The record relates to a married male alien, a native and citizen 

of Greece, 32 years of age, who first entered the United States in 

1961 as a nonimmigrant crewman permitted to land temporarily 

for a period of 3 days, which was later extended to 13 days. He 

remained longer than authorized and was subsequently apprehended by Service officers while engaging in unauthorized employment. Deportation proceedings were commenced and he was 

found deportable. On November 25, 1961, he left the United States 

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voluntarily in lieu of deportation. In 1963 the respondent was a 

crewman serving aboard a vessel that went to Canada. On May 14, 

1963 he deserted his vessel at Vancouver, British Columbia. On 

June 16, 1963 he reentered the United States without inspection 

by surreptitiously crossing the border near Champlain, New York. 

He was apprehended by the Service, and, after a deportation 

hearing, was deported to Greece on July 2, 1963. 

On March 19, 1970, the respondent was again admitted to the 

United States as a nonimmigrant crewman, at Newport News, 

Virginia. A conditional landing permit was issued, evidently without knowledge of the respondent's prior deportation. Two days 

later, the respondent was apprehended by the Service at a bus 

terminal in Newport News when he was about to depart for 

Washington, D.C. with a one-way ticket. He was taken into 

custody, his conditional landing permit was revoked, he was 

returned to his vessel, and his detention on board was ordered 

pursuant to section 252(b) of the Immigration and Nationality Act. 

The vessel left the United States, with the respondent aboard, but 

suffered a collision and returned to port. On March 23, 1970 the 

respondent absconded from the ship and entered the United 

States illegally. 

The respondent married a native-born United States citizen on 

May 21, 1971. On July 7, 1971 his wife filed a petition in his behalf 

to classify his status as that of an immediate relative of a United 

States citizen under section 201(b) of the Act. The petition was 

approved on July 17, 1971 and was forwarded to the United States 

Consulate at Toronto, Canada, where the respondent intends to 

apply for an immigrant visa. The filing of the petition on July 7, 

1971 brought the respondent's presence in this country to the 

attention of the Service. As a result, on the same day an Order to 

Show Cause was issued, charging the respondent with deportability in connection with his illegal reentry into the United States on 

March 23, 1970, in violation of section 252(a) of the Act; that is, 

after being refused permission to land temporarily as a crewman. 

The present deportation proceedings are based upon that charge. 

On July 15, 1971 the respondent applied to the District Director 

at Buffalo, New York for mow pro tune permission to reapply for 

admission into the United States following deportation. The District Director denied the application on September 21, 1971 on the 

ground that a favorable exercise of administrative discretion was 

not warranted because of the respondent's disregard for the 

immigration laws. His decision was appealed to the Service's 

Regional Commissioner. On appeal, the respondent asserted that 

the District Director had failed to consider that denial would 

result in unusual hardship to his United States citizen wire. On 

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February 11, 1972, the Regional Commissioner affirmed the District Director's denial, in view of what he termed the respondent's 

deliberate violation of the immigration laws on at least three 

occasions. The Regional Commissioner concluded that the favorable factor of the respondent's marriage to a United States citizen 

was not sufficient to override the unfavorable factor of the respondent's history of illegal entries and unauthorized employment. 

On April 21, 1972 a deportation hearing was conducted before an 

immigration judge in Washington, D.C. During the course of the 

hearing the respondent moved to renew his application for nuns 

pro tune permission to reapply for admission after being deported. 

The immigration judge at first denied the application on the 

ground that he did not have the jurisdiction to entertain it, but he 

subsequently changed his mind and approved the application. He 

found the respondent deportable as charged and afforded him the 

privilege of voluntary departure, using Form 1-39. In the margin, 

he entered the following notation: "Application for permission to 

reapply for admission into the U.S. after deportation is hereby 

granted nunc pro tune as of March 18, 1970." It is obvious that the 

immigration judge meant the nune pro tune relief to relate to the 

respondent's illegal entry on March 23, 1970. That illegal entry is 

the basis for the present deportation proceedings. 

As an aside, we feel it would have been better practice for the 

immigration judge to have rendered a written opinion instead of 

merely noting the nunc pro tune grant in the margin of a Form I39, which is ordinarily used in very simple cases presenting no 

complex issues. However, this is not a crucial matter here, as the 

present appeal is concerned with the extent of the immigration 

judge's jurisdiction rather than with his reasons for making the 

grant. 

The Service appealed from that portion of the immigration 

judge's order that granted nunc pro tune permission to reapply. 

The Service contends that the immigration judge lacked power to 

make such a grant because granting nunc pro tune permission 

would not make possible the conclusion or termination of the 

proceedings. 

On July 27, 1972, on motion of the Service's General Counsel, we 

remanded the file to the Service to afford the Regional Commissioner an opportunity to reconsider the respondent's application 

for nunc pro tune permission to reapply. Additional information 

bearing on the respondent's character and behavior had been 

obtained by the Service, and the Service felt it desirable that the 

Regional Commissioner have an opportunity to review his earlier 

decision. The case was remanded pursuant to a stipulation of 

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counsel providing that "such remand shall be without prejudice to 

resubmission of the case to the Board by either party, should the 

alien not be granted permission to reapply." The Regional Commissioner, in an order dated December 1, 1972, adhered to his 

original decision. The Regional Commissioner "certified" his decision to us. 

The first question presented is whether we have jurisdiction to 

review the Regional Commissioner's decision, even though he 

certified it to us. We conclude that we do not have the power to 

review directly a matter within the jurisdiction of the Regional 

Commissioner. The regulation dealing with certification, 8 CFR 

3.1(c), does provide for certification to us by duly authorized 

officers of the Service, including, of course, Regional Commissioners. But that regulation pertains only to matters within our 

appellate jurisdiction as set forth in 8 CFR 3.1(b). This is not true 

of respondent's application for advance permission to reapply for 

admission following deportation. Such an application comes instead under the jurisdiction of the District Director and the 

Regional Commissioner, pursuant to 8 CFR 103.1(f) and 103.1(e)(7). 

We previously held, in Matter of Sum, 13 I. & N. Dec. 65 (BIA 1968), 

that we do not have jurisdiction to review directly a District 

Director's determination under section 249 of the Act, because 

section 249 cases are not enumerated in 8 CFR 3.1(b). We did note, 

however, that we could review the section 249 determination if the 

issue arose on appeal from an immigration judge's deportation 

order. The Sum case involved a District Director's determination 

on a matter not within 8 CFR 3.1(b). The same reasoning applies to 

a similar determination of a Regional Commissioner. 

We shall, however, regard the case as being restored for consideration on the Service's appeal and adjudicate the appeal because 

the stipulation referred to above provided for resubmission of the 

case to the Board by either party should the alien not be granted 

permission to reapply. 

On appeal the Service urges (1) that the Board reaffirm its prior 

rulings that an immigration judge has no authority to take action 

with respect to an application for permission to reapply for entry 

after deportation unless necessary to the final disposition of the 

case, and (2) that inasmuch as the grant would not result in 

adjustment or termination in the present case, the immigration 

judge's grant of such relief be declared a nullity. The Service has 

no objection to the remainder of the immigration judge's order. 

The respondent, on the other hand, maintains that the action of 

the immigration judge in granting the respondent nuns pro tune 

permission (1) was within the scope of his authority as conferred 

by statute and regulation, (2) was a reasonable exercise of adinin596 
Interim Decision #2265 

istrative discretion, and (3) was consistent with the principle of 

maintaining the integrity of the family unit, which is a fundamental policy underlying the immigration laws. 

Ordinarily, applications for advance permission to reapply lie 

primarily, as we have seen, within the jurisdiction of the District 

Director and the Regional Commissioner. In Matter of S—N—, 6 I. 

& N. Dec. 73 03IA 1954, AG 1954), it is stated that we do have the 

authority to rule on an application for nunc pro tune permission to 

reapply, but only in certain cases. That is, our power is to be 

exercised only where taking action will completely dispose of a 

particular case. The rationale for the decision in Matter of S —N—, 

supra, was that "it is a basic concept of the Board's appellate 

jurisdiction that it must do complete justice for the alien in a given 

case, and therefore, must take any action necessary to dispose of 

the particular case." •This is in accord with 8 CFR 3.1(d), which 

grants to us the power to exercise "such discretion and authority 

conferred upon the Attorney General by law as is appropriate and 

necessary for the disposition of the case." (Emphasis supplied.) 

The same rationale should be applied to the immigration judge, 

whose jurisdiction in deportation cases, as set forth in 8 CFR 

242.8(a), contains language similar to that relating to the Board 

contained in 8 CFR 3.1(d). The immigration judge is given the 

power "to take any other action consistent with the applicable 

provisions of law and regulation as may be appropriate to the 

disposition of the case." (Emphasis supplied.) In neither statute 

nor regulation do we fmd any express grant of authority to the 

immigration judge to handle applications for advance permission 

to reapply. Hence we believe the limitations on the authority of 

the Board contained in Matter of S —N—, supra, are constraints on 

the power of the immigration judge as well. Thus, we find that he 

also may not entertain an application for nunc pro tarty permission 

to reapply unless granting the application would completely dispose of the case. 

It is clear that a. grant of nunc pro tune permission would not 

completely dispose of the respondent's case. The only relief from 

deportation that would terminate his case and in connection with 

which the retroactive elimination of a ground of inadmissibility 

would be relevant would be adjustment of status under. section 245 

of the Act. The respondent, however, who is charged with deportability as a crewman who entered after being denied permission to 

land temporarily, is expressly barred from section 245 relief by the 

very terms of the statute, which excludes crewmen from its scope. 

Hence, the grant of nunc pro tune permission, as of March 18, 1970, 

or any other date, would not in any way affect his deportability, 

render him nondeportable, or permit termination of the proceed597 
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ings by allowing him to avail himself of discretionary relief from 

deportation. Therefore, we find that we may not entertain an 

application for nunc pro tune permission in the present case as it 

now stands. See Matter of M—C--, 9 I. & N. Dec. 280, 284 (BIA 

1961). By the same token, the immigration judge also lacked 

authority to pass on such an application. Consequently, his grant 

of nunc pro tune relief was beyond his power and must be 

considered a nullity. The Service's appeal will accordingly be 

sustained. 

In view of the foregoing, there is no need for us to go into the 

question of whether the immigration judge's grant of maw pro 

tune relief was a proper exercise of administrative discretion. See 

GonatlezITimcnez v. Del Guercio, 253 F.2d 420 (C.A. 9, 1958). 

Respondent's sole recourse would appear to be to leave the 

United States, and, while abroad, to submit a fresh application for 

advance permission to reapply to the appropriate United States 

Consul, who would then forward the application for decision to the 

District Director having jurisdiction over the place where the 

deportation proceedings were held, pursuant to 8 CFR 212.2(c). 

The following order will accordingly be entered. 

ORDER: The Service's appeal is sustained. 

Further order: Pursuant to the immigration judge's order, the 

respondent be permitted to depart from the United States voluntarily within 30 days from the date of this decision or any 

extension beyond that time as may be granted by the District 

Director; and that, in the event of failure so to depart, the 

respondent shall be deported as provided in the immigration 

judge's order. 

BEFORE THE BOARD 

(March 5, 1974) 

The respondent, on July 6, 1973, filed a motion seeking reconsideration of our order of June 11, 1973, in which we sustained an 

appeal by the Service, ruling that the immigration judge did not 

have authority to grant the respondent nunc pro tune permission 

to reapply for admission after deportation because the grant 

would not completely dispose of the proceedings. Newly retained 

counsel, in his motion, does not dispute our ruling with regard to 

nuns pro tune permission to reapply. He contends, rather, that the 

immigration judge does have the power to approve, in deportation 

proceedings, an application for advance (notnunc pro tune) permission to apply, by virtue of 8 CFR 212.2(g). We do not agree with 

counsel's contention and we find no reason to recede from our 

order of June 11, 1073. However, we shall amplify our earlier 

decision in order to distinguish the factors involved in a grant of 

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nunz pro tune permission to apply for readmission after deportation as opposed to a grant of advance permission to reapply. 

The motion to reopen raised a question not considered by us 

when we entered our order of June 11, 1973. At that time we were 

not confronted with the issue of whether the immigration judge 

had power to grant advance permission to reapply after deportation. We merely reviewed the immigration judge's grant, on April 

21, 1971, of retrospective or nuns pro tune permission to reapply. 

We ruled that, on the basis of the pertinent precedents, the 

immigration judge lacked authority to pass upon such an application, absent a specific grant of authority to do so, because a grant 

of nunc pro Wit permission would not completely dispose of the 

respondent's case. Even with the mote pro tune grant the respondent would remain deportable, being ineligible, as a crewman, for 

adjustment of status under section 245 of the Immigration and 

Nationality Act. We held that the immigration judge, like this 

Board, had authority to rule on an application for nunc pro tune 

permission to reapply only when appropriate and necessary for the 

disposition of the case. In effect, we extended the limitations on 

our authority set forth in the precedent decision of Matter of S—

N—, 6 I. & N. Dec. 73 (BIA 1954, AG 1954), to apply to the 

immigration judge as well. 

It will be helpful to clarify our earlier order by pointing out that 

the actual application submitted at various times by the respondent was for advance permission to 'reapply—not for nunc pro tune 

permission. This is true not only of the application filed with the 

District Director and reviewed twice by the Regional Commissioner, but also of the application, on Form 1-212, filed with the 

immigration judge on April 21, 1971. In effect, what the respondent did was to seek advance permission, prior to going abroad, 

either voluntarily or under an order of deportation. The regulations permit this procedure so that many aliens may know in 

advance that they will be permitted to return, and are thus saved 

the uncertainty and inconvenience of going abroad before submitting such an application. The immigration judge, upon his own 

volition, elected to treat the respondent's request for advance 

permission to reapply as one for retrospective or nunc pro tune 

permission. 

At oral argument before this Board, on January 16, 1973, the 

respondent was not represented by counsel but his case was well 

presented by his United States citizen spouse. She urged that, in 

deportation proceedings, an irregularity in entry, including reentry after deportation without permission to reapply, may be cured 

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by the discretionary grant of nunc pro tune permission to reapply.' 

The case of Gonzalez,Jimenez v. Del Guercio, 253 F2d 420 (C.A. 9, 

1958), was cited as authority for this position, both by the immigration judge (Tr. p. 6) and by the respondent's representative. The 

court in that case observed that there was no right to be granted 

permission to reapply and that it was restricted to examining the 

question of whether there had been an abuse of discretion in 

denying the application. The court simply ruled that there was no 

abuse of discretion. We fail to see how that case supports the 

respondent's position. 

The appellate trial attorney, in his memorandum of law dated 

June 21, 1972, accurately perceived that what the respondent was 

seeking was not nunc pro tune permission to reapply for admission, but, in fact, advance permission, so as to waive the disability 

arising from his 1963 deportation and from the present deportation proceeding should he fail to depart voluntarily. The appellate 

trial attorney cited the regulations providing for seeking advance 

permission initially from the District Director, pursuant to 8 CFR 

2122(d), with an appeal lying to the Regional Commissioner under 

8 CFR 103.1(e)(7). In connection with its appeal from the immigration judge's order, the Service maintained that the immigration 

judge's grant of nunc pro tune permission to reapply was not 

proper because the grant would not result in termination of the 

proceedings. As the Board said in its earlier order of June 11, 1973, 

the grant of nunc pro tune permission would be within the scope of 

an immigration judge's authority if it would conclude the proceedings before him. This might be true in the case of an alien in 

deportation proceedings (1) whose sole ground of deportability is 

under section 241(aX1) of the Act, as an alien excludable at entry 

under section 212(aX17) for reentering the United States after 

deportation without first securing the permission of the Attorney 

General; or (2) who seemingly qualified for adjustment of status 

under section 245 of the Act, except for his inadmissibility as an 

alien who was deported. 

In our earlier order, we addressed ourselves only to the second 

possibility. To clarify our holding conceptually, we shall now deal 

with both. We find, however, that the respondent does not come 

within either category. 

First, with respect to a nunc pro tune grant that eliminates a 

deportation charge, we note that the respondent was not charged 

with being deportable under section 241(a)(1) by virtue of inadmissibility under section 212(a)(17). He could have been so charged 

although he was not. Even if he had been, any other charges 

1 The respondent's representative stated, incorrectly (page 11 of transcript), 

that the respondent was not asking for advance permission to reapply. 

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lodged against him would have remained, unless waived. He was 

actually charged, and found deportable, under section 241(aX2), as 

an alien in the United States in violation of law, having entered as 

a crewman after being denied permission to land temporarily. 

There is no provision in the law for a waiver of this ground of 

deportability. Consequently, a vane pro tune grant relating to his 

deportability because of inadmissibility under section 212(aX17) 

would not have eliminated the ultimate ground of deportability in 

his ease. 

Second, paving the respondent's way for adjustment of status 

under section 245 of the Act by removing a ground of inadmissibility would be possible only if so curing the respondent's inadmissibility by virtue of his reentry after deportation would, in and of 

itself, render the respondent statutorily eligible for consideration 

for the discretionary relief of adjustment of status. As we pointed 

out in our earlier order, the respondent was barred from section 

245 relief for the underlying reason that he is a crewman, and all 

crewmen are statutorily excluded from adjustment. Accordingly, 

nunc pro tune permission to reapply after deportation would not 

have removed the final obstacle to seeking adjustment. Consequently, a "WW7te pro tunic grant would not have enabled the 

complete disposition of his case. Therefore, we hold that neither 

avenue under which a grant of nunc pro tune permission could 

have been made was open to the respondent. 

Inasmuch as a grant of nunc pro tune relief could not wrap up 

the respondent's deportation proceedings, we held, on June 11, 

1973, that the immigration judge did not have authority to make 

such a grant. We accordingly sustained the Service's appeal. At 

the time, we did not consider the other issue now introduced by 

counsel, namely whether the immigration judge had the power to 

grant advance, as opposed to retroactive permission to reapply 

after deportation. 

Counsel's motion for reconsideration reflects some confusion as 

to the distinction between nunc pro tune and advance permission 

to reapply. The motion states that the Board's order of June 11, 

1973 ruled that "the power (of an immigration judge] to take 

action as may be appropriate to the disposition of the case did not 

include advance permission to reapply after deportation unless 

granting the application would completely dispose of the case." 

This overlooks the fact that our order of June 11,1973 was directed 

solely to the issue of nunc pro tune, not advance, permission to 

reapply. As was mentioned above, the issue of the authority of the 

immigration judge to grant advance permission was not dealt with 

in our earlier order. 

Counsel maintains that the immigration judge's decision should 

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be permitted to stand because, under 8 CFR 2122(g), he had 

"jurisdiction." Counsel's reading of 8 CFR 212.2(g) is incorrect. The 

regulation itself starts off by stating it is applicable "except in the 

case of an applicant seeking to be granted advance permission to 

reapply." Thus, by the very language of the regulation, it confers 

no power upon the immigration judge where an advance grant of 

permission to reapply is sought. 

The respondent is deportable and he must leave the United 

States, whether voluntarily or under an order of deportation. He 

will remain inadmissible, even if he departs voluntarily, because of 

his deportation in 1963, unless he secures the permission of the 

Attorney General to reapply for admission. As we noted in our 

order of June 11, 1973, the respondent's sole recourse would appear 

to be to journey abroad, and, while there, make a fresh application 

with the appropriate United States Consul, who will forward the 

application to the Service. 

It is clear from the regulations that determinations as to 

advance permission to reapply are reserved to the District Director, with review by the Regional Commissioner. We conclude, 

therefore, that not only did the immigration judge lack the power 

in this case to approve a nunc pro tune grant of permission to 

reapply, but he also lacked power to grant advance permission. 

The respondent's motion for reconsideration will be denied, and 

our order of June 11, 1978 will stand, except as modified by our 

decision herein. 

Once the respondent leaves the United States, an application for 

advance. permission to reapply for admission will no longer be 

timely. The advance permission option is reserved for aliens who 

are still physically present in the United States. Although the 

District Director denied his application for advance permission, 

and the Regional Commissioner twice upheld the denial, the 

respondent is free to renew his application for permission to 

reapply after he leaves the United States, this time not in 

advance, not maw pro tune, but contemporaneously, with the 

District Director hating jurisdiction over the port of entry selected. See 8 CFR 212.2(e) 

ORDER: The motion for reconsideration is denied. 

602