Interim Decision #2188 

MATTER OF CHAVARRI-ALVA 

In Deportation Proceedings 

A-20010454 

Decided by Board March 29, 1973 

Where the special inquiry officer's decision in deportation proceedings was 

rendered on January 17, 1973; Notice of Appeal therefrom, although dated 

January 26, 1973, was not filed by the alien's attorney until March 2, 1973; and 

none of the grounds of appeal stated in the Notice presented a cognizable 

issue, the Board of Immigration Appeals dismissed the appeal for lack of 

jurisdiction as untimely.* 

CHARGE: 

Order: Act of 1952—seetton 241(0(2) [8 U.S.C. 1261(a)(2)]—Nonimmigrantremained longer than permitted. 

ON BEHALF OF SERVICE: William S. Howell 

Trial Attorney 

In Matter of Gamboa, Interim Decision No. 2176 (B IA, 1972), we 

noted in passing that, "The ingenuity and inventiveness of some 

attorneys in devising grounds of appeal plausible on their face but 

bearing no realistic relation to the record is simply astounding." 

This is such a ease. 

Before us is an untimely appeal from an order of an immigration 

judge' dated January 17, 1973, finding the respondent deportable 

and granting him the privilege of departing voluntarily on or 

before March 15, 1973. The notice of appeal to this Board, though 

dated January 26, 1973, was not filed with the Immigration and 

Naturalization Service until March 2, 1973. Following the procedure suggested in Matter of Gamboa, supra, the Service forwarded 

the record to us without delaying to transcribe the hearing. In an 

accompanying memorandum, a copy of which was directed to 

counsel, the Service's Trial Attorney set forth the basis for his 

conclusions that the appeal can be adequately considered without 

a transcript and that the appeal should be summarily dismissed. 

Special inquiry officers are now referred to as immigration judges. 

* Cert. denied 414 U.S. 861 (1973). 

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The notice of appeal filed in this case is similar in many ways to 

notices of appeal filed by the same attorney in the cases of many 

other aliens which have come before us in recent months. The 

same or similar "boilerplate" grounds for appeal are stated, none 

of which appears to set forth an issue cognizable by this Board, 

and the same technique of back-dating a notice of appeal to make 

it seem timely is apparently employed. We think it is high time to 

comment on the procedures involved, for the benefit of both this 

attorney and others newly embarked on an immigration practice. 

To make sure that no possible right of the respondent has been 

overlooked, we have requested the Service to send us a transcript 

of the hearing. The record as thus augmented reveals the following facts: The respondent is a married male alien, a native and 

citizen of Peru, who was admitted to the United States on or about 

February 1, 1970 as a nonimmigrant visitor for a temporary period 

until May 1, 1970 and remained here thereafter without permis- - 

 sion. At the hearing before the immigration judge on January 17, 

1973, respondent was examined through a Spanish interpreter. 

Notified of his right to be represented by an attorney of his own 

choice without expense to the Government, respondent elected to 

proceed without a lawyer. He admitted the truth of the factual 

allegations of the order to show cause and conceded deportability. 

Because of respondent's failure to designate a country of deportation, the immigration judge specified Peru as the country and 

notified respondent of his right to apply for withholding of deportation to Peru under section 243(h) of the Immigration and 

Nationality Act. Respondent testified that he had been a wholesale distributor of medical supplies in Peru, had been engaged in 

politics there since he was 13 years old, but was never a member of 

the.government in Peru. It was brought out that respondent had 

previously made a statement to Service officers with respect to a 

claim for political asylum and that the State Department had 

expressed the opinion that he would not be persecuted. 2Respondent conceded that he would not be persecuted in Peru because of 

his race, religion, or political beliefs but expressed the view that, 

"with the present Government in the near future, all the Atristas 

will be persecuted," although he has no evidence of this. Following 

a discussion off the record, the immigration judge stated that the 

respondent had admitted that he has no persecution claim and 

would not file an application. Respondent's application for volun2 In his memorandum of March 12, 1973, transmitting the record to us, the 

Trial Attorney states, in part, "This alien's situation was reviewed by the 

Department of State on a possible claim to political asylum and was rejected by 

their letter dated August 11, 1972." A copy of the State Department's letter was 

not forwarded to us. 

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tary departure was granted and he was given until March 15, 1973 

to depart. 

• At the Conclusion of the hearing, the immigration judge informed the respondent, "Inasmuch as you admitted you were 

deportable and I have granted you in excess of 30 days in which to 

depart, there is no appeal from this decision." Technically, this 

advice was incorrect. Under the exception to 8 CFR 3.1(b), such an 

order is not appealable only "if the sole ground of appeal is that a 

greater period of departure time should have been granted." 

(Emphasis added.) Conceivably, another (though perhaps frivolous) ground of appeal could have been asserted. See Matter of 

Gamboa, supra. We think the immigration judge should properly 

have notified the respondent of his right to appeal, as required by 

8 CFR 242.19(b), and given him the opportunity to waive appeal, if 

he chose. We shall, therefore, not consider this case as one in 

which appeal has been waived. In any event, since we have 

carefully reviewed the record to see if there is any merit to the 

appeal, respondent has not been prejudiced by any inadequacy in 

the immigration judge's flat statement that there is no appeal. 

This brings us to the notice of appeal itself. It is dated January 

26, 1973, which would be within the time limit specified in 8 CFR 

24221. It was not filed, however, until March 2, 1973, when it was 

clearly out of time. No explanation has been offered for the 

seeming delay. If counsel was actually retained by the respondent 

by January 26, 1973 and prepared the notice of appeal on that 

date, we have reason (and perhaps so has the respondent) to 

wonder why counsel delayed filing until March 2, 1973, when it 

was too late by far. Another possibility is that counsel was not 

retained until later and that he back-dated the notice of appeal in 

an attempt to make it appear timely. Such an attempt at deception, though ineffectual, should not pass unnoticed. 

Three grounds of appeal are stated in the notice of appeal. Not 

one of them relates to the evidence' developed at the deportation 

hearing or to the issues which were raised, or could have properly 

been raised, at that hearing. This Board, as an appellate tribunal, 

normally reviews the decision of the immigration judge on the 

basis of the administrative record underlying his decision and in 

light of the grounds for appeal stated in the notice of appeal. If 

counsel seeks to raise an issue on the basis of new facts not 

developed of record, the proper procedure is to move for reopening 

under 8 CFR 24222 so that the new evidence, if relevant, may be 

made part of the record and furnish the basis for a new decision by 

the immigration judge, rather than to file a notice of appeal to this 

Board based on facts not of record_ We see no reason, however, to 

remand this case to the immigration judge for the purpose of 

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enabling counsel to present evidence substantiating the new 

factual allegations of the notice of appeal. None of the grounds of 

appeal presents an issue cognizable either by the immigration 

judge or by this Board on appeal. 

The first ground of appeal states, "Appellant is a native and 

citizen of Peru and has a pending application for a change of 

status under section 203(aX7) of the Immigration & Nationality 

Act. His life is in great danger if forced to return to Peru." We 

need not pause to consider whether respondent, while in the 

United States, is eligible to apply for section 202(aX7) conditional 

entry under 8 CFR 235.9 or whether, as a Western Hemisphere 

native, he is eligible for adjustment under the proviso to section 

203(a)(7) in view of 8 CFR 245.4 and the limitations of section 245(c) 

of the Act. The fact remains that the determination of such 

applications has been delegated to the Service's District Directors, 

and not to the immigration judges or this Board. Deportation 

proceedings against a deportable alien need not be withheld or 

postponed pending his pursuit of such possible collateral remedies, 

Bowes v. District Director, 443 F2d 30 (C.A. 9, 1971); Armstrong v. 

INS, 445 F.2d 1395 (9 Cir., 1971); Mann:Wan INS, 425 F.2d 092 

(C.A. 7, 1970). The assertion that respondent's life is in great 

danger if forced to return to Peru is, as we have seen, unsupported 

by the record. 

The second ground of appeal states, "The District Director's 

decision was an abuse of discretion and contrary to the dictates of 

the Immigration & Nationality Act." The record before us is 

barren of any reference to a District Director's decision and the 

notice of appeal does not inform us what that decision involved. In 

any event, there is nothing to indicate that the District Director's 

decision, whatever it was, is within this Board's appellate jurisdiction as defined in 8 CFR 3.1(b). 

The third ground for appeal states, "Eastern hemisphere aliens 

are entitled to immigrate into the United States while being 

physically present in this country. Due to discrimination, western 

hemisphere aliens are not allowed to avail [sic] of this ri ght. This is 

a denial of the equal protection clause of the Constitution." There 

is nothing in the record before us to indicate that the immigration 

judge invoked any provision of the Act which discriminates 

against respondent by reason of his birth in the Western Hemisphere. At any rate, neither this Board nor the immigration 

judges may consider such a challenge to the statutes we administer, Matter ofL—, 4 L & N. Dec. 556 (B IA, 1951); Matter of Santana, 

13 I. & N. Dec. 362 (B IA, 1969). 

We are satisfied from our review of the record that there is no 

merit to this untimely appeal and we, therefore, see no reason to 

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take the case on certification under 8 CFR 3.1(c). Had the appeal 

been timely, on dismissal the respondent would still have had 

access to the voluntary departure privilege, Matter of Villegas 

Aguirre, 13 I. & N. Dec. 139 (BIA 1969). The voluntary departure 

privilege has now expired. To restore it now on the basis of an 

untimely appeal so lacking in merit would only encourage similar 

attempted appeals in equally meritless cases. We shall, therefore, 

dismiss the appeal for lack of jurisdiction as untimely, without 

more. 

ORDER: The appeal is dismissed for lack of jurisdiction as 

untimely. 

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