Interim Decision #1292 

NEA.I.L.La or PERBZ4nEENEZ 

In DEPORTATION Proceedings 

A-11261536 

Decided by Board July 19,1968 

Wheu parallel deportation and extradition proceedings are pending, the outotandlag order of deportation will be withdrawn and further deportation proceedings 

held in abeyance during the pendency of extradition proceedings, since further 

deportation proceedings would serve no useful purpose and the outstanding 

order of deportation might unnecessarily and improperly complicate the extradition proceedings. 

CHARGES: 

Order : Act of 1952—Section 241(a) (1) ES U.S.C. 1251(a) (1)]—Excludable 

at entry—No immigrant visa (8 MS-C.1182(a) (20) ). 

Lodged : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2) ]--Remained 

longer than permitted as a nonimmigrant. 

Respondent is a former president of the Republic of Venezuela. 

Early in 1958 revolutionary forces terminated his incumbency as 

president. He left his homeland at that time. 

Our decision of September 8, 1959, affirmed the special inquiry 

officer's order directing respondent's deportation on the charge that lie 

had remained in this country as a nonimmigrant longer than per-. 

miffed. Respondent has not designated a country to which he would 

prefer to be sent if deported. 1 

Subsequent to our prior order respondent applied for the benefits of 

section 243 (h) of the Immigration and Nationality Act. The case 

comes here now on respondent's motion to reopen the proceedings to 

afford him a hearing on that application and on the Service motion to 

withdraw the deportation order. 2We conclude that the Service motion 

should be granted. 

When the special inquiry officer heard respondent's case, the regulations did 

not provide, as now, for the special inquiry officer to determine the place of 

deportation. 

3 Respondent has also filed in the District Court, Southern District of Florida 

a petition for a mandatory injunction, seeking -adjudication of his application. 

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Respondent last arrived in the United States at West Palm Beach, 

Florida on March 28, 1958. He then possessed a Venezuelan diplomatic passport and a nonimmigrant visa issued on February 10, 1958 

at our Embassy in Santo Domingo.' The Service initially paroled 

respondent but on January 7, 1959 admitted him as a temporary 

visitor. Respondent is 49 years old. His wife and four minor children are with him in this country. Only respondent is under proceedings at this time, howeVer. 

The Consul General of Venezuela in Miami informed the Service 

by letter of June 5, 1958 that the Venezuelan government had cancelled 

the diplomatic passports of respondent and his wife and children 

(Ex. 4). 

On August 24, 1959 the Venezuelan Consul in Miami filed a complaint in the District Court for the Southern District of Florida seeking respondent's extradition to Venezuela. A district judge, sitting 

as a magistrate in extradition proceedings, found probable cause that 

respondent had committed in Venezuela certain financial crimes which 

are covered by the Treaty of Extradition between Venezuela and 

this country.' He committed respondent to the custody of the United 

States Marshal to await the Secretary of State's action.' Respondent 

then brought habeas corpus proceedings, which the District Court 

dismissed. The Court of Appeals affirmed that decision and the 

Supreme Court denied certiorari.' The extradition proceedings now 

Then Ciudad Trujillo. 

43 Stat. 1098, T.S. No. 075 (1929). 

518 U.S.C. 3186. 

° Jimenez v. Aristeguieta, 311 F.2d 547 (C.A.. 5, 1962), eert. den. sub nom. 

Jimenez v. Nixon, 373 U.S. 914 (1963). 

Litigation connected with the extradition proceedings bas been extensive. 

The judicial phase of the principal action terminated with an order of the magistrate dated June 16, 1961, committing respondents to the custody of the United 

States Marshal, and an order of June 23, 1961, certifying the record to the Secretary of State with the judge's findings. Earlier in that proceeding, another 

judge had denied respondent's motion for a protective order against the taking 

of certain depositions. Respondent attempted an appeal, but the Court of 

Appeals for the 5th Circuit held that it had no jurisdiction of an appeal from an 

interlocutory or Sinal order of a magistrate in an extradition proceeding. 

Jimenez v. Aristeguieta, 290 F. 2d 106 (C.A. 5, 1961)—criticizedi 61 Mich. L. Rev. 

383 (1962). 

There have been various collateral proceedings in addition to the habeas corpus 

proceedings cited above. Aristeguieta v. Jimenez, 274 F.2d 206 (0.A. 5, 1960, 

per euriam) and First National City Bank v. Aristeguieta, 287 F. 2d 219 (CA. 

2, 1960), cert. granted 365 U.S. 840 (1961)—denials of motions to quash subpeoneas duces tecum. Jimenez v. Aristeguieta, 314 F.2d 649 (1963)—denial of 

bail. 

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Interim Decision #1292 

await the Secretary of State's decision whether to issue a warrant of 

extradition. 

The Service contends that the extradition proceedings and Immigration proceedings are exclusive and independent of each other. 

Both the Service motion and the argument of respondent's counsel 

point out that if respondent's removal takes place under extradition 

proceedings while there is outstanding an order of deportation, the 

deportation order will be executed.' The Service further points out 

that in the event of extradition any immigration proceedings will be 

mooted and terminated. Therefore, the Service contends, the outstanding deportation order serves no useful purpose at this time and 

may introduce complications. 

The Service also argues that, if the Secretary of State fails to issue 

a warrant of extradition, resumption of deportation proceedings 

would enable extending to respondent all rights and privileges under 

the deportation laws and regulations, including adjudication of his 

application under section 243(14_ Thus, the Service urges, the 

motion, in seeking to eliminate the possibility of execution of the 

deportation order without affording respondent his full rights and 

privileges under the laws pertaining to deportation, is beneficial to 

respondent. 

Respondent contends that the Service motion, if granted, would not 

benefit him but would deprive him of his right to an adjudication at this 

time of his application under section 243(h). He apparently would 

risk the possibility of deportation through extradition in. order to obtain such an. adjudication. Respondent thus prefers to rest his case 

for avoiding return to Venezuela upon the Attorney General's ruling 

in deportation proceedings rather than the Secretary of State's ruling 

in the extradition proceedings. We are to determine whether to grant 

either of the motions before us and if so which one. 

We find that we need not determine whether withdrawal of the 

deportation order would be beneficial or detrimental to respondent 

Therefore, we do not decide whether extradition would execute an outstanding order of deportation. If granting the Service motion would 

benefit respondent by preventing deportation shorn of some of its procedural safeguards, such benefit would be, for our purposes, a side 

effect. We base our decision on the grounds that, in view of the extra7Counsel for the Service indicated at oral argument that he is unwilling to 

concede merit in respondent's argument that extradition with a final order of 

deportation outstanding would be in effect a self-executing deportation without 

an opportunity for respondent to be heard on his application for a stay of 

deportation. The Service representative pointed out, however, that granting the 

Service motion would avoid the situation respondent contemplates. Compare 

section 101(g), immigration and Nationality Act, 8 U.S.C. 1101(g). 

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dition proceedings, further deportation proceedings would serve no 

useful purpose and may unnecessarily and improperly complicate the 

extradition proceedings. 

As we have seen, the Service motion states that deportation and extradition proceedings are exclusive and independent of each other. 

Respondent asserts that the Service actions so far in these proceedings 

have not demonstrated the two are mutually exclusive and independent. Both the Service and respondent are correct to some extent. 

The two procedures are independent in the sense that the proceedings 

under each are separate and distinct and that a decision in one is not 

necessarily dependent upon the findings in the other. Though for 

different purposes, they are related in their effect of removing a person 

from the country. 8Where the proceedings are parallel, therefore, one 

should be cognizant of the other. 

We may properly comment upon the pending extradition proceedings only to the extent that references to those proceedings are necessary to our decision in the matter before us. We note that, essentially, 

respondent seeks to avoid extradition and deportation on the same 

ground. He contends that the present political climate in Venezuela 

is decidedly adverse to him and therefore he should not be returned 

to Venezuela at this time. 

Respondent apparently perceives that pursuing his section 243(h) 

application and his defense to extradition simultaneously may offer 

procedural advantages to him. He points to the established regulations and procedures and the avenues for judicial review which appertain to an application filed pursuant to section 243(h). Although 

not suggesting that he would not receive due process of law at the 

hands of the Secretary of State, respondent says that there are no 

regulations governing the Secretary of State's action and that the 

procedures are less tested and more nebulous than those in deportation 

proceedings. 

At oral argument respondent's counsel suggested that a favorable 

conclusion. to respondent's section 243(h) application should prevail 

over a ruling by the Secretary of State to grant extradition. This 

suggestion can mean only that the Secretary of State, in his discretion, 

should defer to the grant of the benefits of section 243 (h). There is 

no legal basis• for the granting of such an application to take precedence over the Secretary of State's issuance of a warrant of extradi- . 

 tion. If anything, in practice, the reverse would be true. 

Treaties and statutes of Congress form part of the supreme law of 

the land and are of equivalent effect. Except to the extent that a 

treaty and a federal statute may be inconsistent, neither prevails over 

'Fong Tire Ting 7. United states, 149 U.S. 695, 709 (1895). 

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Interim Decision #1292 

the other. If inconsistent, the expression of the Congressional will 

which is later in time prevails' Nullification of a treaty by implication is not favored, however." 

Here there is no inherent inconsistency between, on the one hand, 

our Treaty of Extradition with Venezuela and the statutory provisions 

for extradition and, on the other, the statutory provisions of deportation, including withholding of deportation_ on the basis of impending 

physical persecution. Any inconsistency which might result would 

arise only from divergent applications of those provisions by different 

government officials. Statutes should be interpreted and applied, 

however, so as to render them harmonious and to give maximum effect 

to the provisions of each. 

A decision by the Secretary of State granting extradition will terminate any deportation proceedings in whatever posture they might 

be at the time. Thus, although pending section 243 (h) proceedings 

might support a request for reconsideration of the Secretary's decision, 

or for some form of judicial relief, failing either of those remedies the 

243 (h) proceedings would be effectively terminated. The same result would obtain if respondent had successfully prosecuted such 

application to a conclusion. Since the granting of the stay would 

not necessarily bar extradition, the stay of deportation might be 

abruptly terminated. 

The Treaty requirement that Venezuela will, try respondent only 

for the crimes specified in the warrant of extradition (for which the 

judge has already found probable cause) and the express, prohibition 

against trial or punishment for a political crime or offense distinguish 

the extradition proceedings from these. Only if Venezuela should, 

because of overriding political considerations, dishonor its obligations 

under the Treaty would the factors to be considered in the two proceedings merge. Moreover if the Secretary of State considers whether 

Venezuela might physically persecute respondent, his conclusion on 

the overall likelihood of physical persecution might differ from a. decision by the special inquiry officer, or by us, granting withholding of 

deportation. 

The withholding of deportation authorized by section 243(h) of the 

Act may terminate at any time the Attorney General deems that deYong Yue Ting v. United States, supra 8 ; Av parte Gin Kato, 270 F. 343 (D.C., 

1920) ; in re Giacobbi, 32 F. Sapp. 508 (1939), aff'd sub nom U.S. ex rel. Giaoobbi 

v. Pluekey, 111 F. 2d 297 (C.A. 2, 1940). 

United Stales v. Domestic Fuel (tarp., 71 F. 2d424 (Oust. & Pat. App. IOU) - 

31The magistrate found that the evidence did not establish probable cause for 

the charges of murder and participation in murder as accessory before the fact. 

He also found that the financial crimes were not of a political character—hence 

not barred by Article III or the Treaty. 

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portation may be effected without subjecting the alien to physical 

persecution. Therefore, issuance of a warrant of extradition here 

might be considered basis for terminating any stay of deportation 

granted under section 243 (h). In a sense the language of the Treaty 

and of the statutory provisions involved in respondent's case would 

all have been given effect. But the 243 (h) proceedings would actually 

have served no useful purpose from the point of view of the determination of respondent's ease. 

As the Service motion and argument point out, such proceedings 

would serve only to complicate the extradition proceedings. We think 

they should not be made available for the purpose of bolstering up 

respondent's argument before the Secretary of State or providing a 

diversionary and distracting element in the overall proceedings involving respondent, which are already extensive. Orderly procedure 

requires deferral of any proceedings under section 243 (h) until a final 

decision is rendered in the extradition case. Procedures under that 

section will be available to respondent if the extradition proceeding 

terminates in his favor, and if otherwise warranted at that time. We, 

therefore, deny respondent's motion solely on the grounds that it is 

inappropriate at this time. 

Respondent contends that we lack authority to withdraw the outstanding deportation order." The statutory provisions for deportation say that aliens in certain categories in the United States shall be 

deported upon the order of the Attorney General. Neither the statute 

nor the regulations limits the Attorney General's discretionary authority in the timing the the entry of such an order. 

Respondent's counsel concedes that we have authority to withdraw 

an order of deportation in certain instances where the grounds for 

deportation have been eliminated or -where certain applications for 

relief, such as suspension of deportation and voluntary departure, are 

to be granted." He also concedes that entry of the deportation order 

could have been deferred in the first place. 

Our general authority extends to exercising whatever discretion and 

authority—appropriate and necessary for the disposition of the case—

the law confers upon the Attorney General in the matters before us 

for determination." We do not doubt we have the discretionary power 

to withdraw the order of deportation if we deem such action warranted. 

"In none of the cases cited by respondent to show that the Attorney General 

has a duty to deport after entry of a final order of deportation was an extradition proceeding pending along with the deportation proceeding.. 

13The Attorney General has held an outstanding order of deportation may 

be withdrawn to grant suspension of deportation. . Matter of B—, 6 I. & N. Dec. 

718. 

"S OFR 3.1(d). 

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Only one argument of any force supports counsel's contention that, 

in respondent's case, entry and withdrawal of the deportation order 

is improper (although entry of the order might properly have been 

deferred in the first place). We consider suoh force is slight here. 

Counsel contends that the six-month period during which respondent 

might have been taken into custody under the present order has run. 

Thus, he argues, future reinstatement of that order after withdrawal 

would open up a new opportunity for respondent's confinement. We 

do not examine the legal basis for this contention. Assuming that 

counsel's statement of the situation is correct, we think the possibility 

he envisages is remote. If the deportation order is withdrawn, perhaps circumstances will not necessitate future reinstatement of deportation proceedings. If such proceedings are reinstated, perhaps a 

final order of deportation will not be entered. If a final order of 

deportation is entered, perhaps respondent will not be taken into 

custody under that order. 

On the other hand, while the deportation order is outstanding 

respondent remains entitled to pursue his section 243 (h) application. 

We have concluded that the deportation proceedings should not, during the pendency of the extradition proceedings, be reopened to enable 

respondent to be heard on that application. Withdrawal of the order 

of deportation removes the basis for the section 243 (h) application. 

There is only a vague possibility that respondent might in the future be prejudiced through consequences flowing from a reinstatement 

of the order of deportation. Against that possibility is the more 

immediate possibility of complicating the extradition proceedings if 

the deportation order remains in effect. Respondent may confine 

to the proceedings before the Secretary of State his argument that 

on political grounds he should not be extradited to Venezuela. If 

successful there, it is unlikely that he would have to argue further 

that his deportation to Venezuela should be withheld. But, if necessary, he could have full opportunity to present his case. The concurrent treaty and statutory procedures applicable to respondent may 

thus be given their maximum effect. 

We decide here only a limited phase of the overall proceedings involving respondent. In the perspective of the entire applicable statutory and treaty provisions, however, orderly procedure requires 

withdrawal of the deportation order as well as deferral of further 

proceedings pertaining to deportation. We see nothing in the matters of more immediate concern to us which requires a different ruling. 

We shall grant the Service motion. 

ORDER: It is ordered that respondent's motion to reopen the deportation proceedings to afford him an opportunity to be heard on his . 

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application for the benefits of Section 243 (h) of the Immigration 

and Nationality Act be and hereby is denied. 

It is further ordered that the Service motion to withdraw the order 

of September 8, 1959, directing respondent's deportation, and to hold 

in abeyance the deportation proceedings be and hereby is granted. 

It is further ordered that the order of September 8, 1959, directing 

respondent's deportation be and hereby is withdrawn and that any 

further deportation proceedings be held in abeyance during the pendency of the proceedings under the provisions of the Treaty of Extradition between Venezuela and the -United States and applicable statutory 

provisions pertaining to extradition. 

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