MATTER OF K— 

In DEPORTATION Proceedings 

A-11363561 

Decided by Board June 15, 1962 

Section 249 application—Reconsideration—Previous denial and entry of order 

of deportation prior to January 22, 1962. 

As stated In the Federal Register of December 19, 1961, pp. 12110 and 12111, 

in connection with the regulations to become effective January 22, 1962, derisions by district directors and regional commissioners under section 249 

(as well as other specified sections) are final in all cases where (1) the 

unreversed determination was made prior to January 22, 1962, in accordance 

the then existing regulations, and (2) a finding of deportability was 

made by a special inquiry officer prior to said date. An alien is not entitled 

to renew such application under section 249 which was determined prior to 

January 22, 1962; or to have any such decision reconsidered, in accordance 

with the amended provisions of Part 242, unless he can establish that he is 

in possession of material, newly discovered evidence which could not have 

been presented for consideration at the time of the prior adjudication. In 

this case, the determination of the 249 application and the finding of deportability were made prior to January 22, 1962; there is no offer of newly 

discovered evidence. Hence, the motion to reconsider and reopen under 

S CFR 3.2 is denied. 

CHARGE: 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at time of entry—Quota immigrant not in possession of visa. 

BEFORE THE BOARD 

DISCUSSION: The respondent is a native and citizen of China, 

47 years old, male, who last entered the United States at the port 

of San Francisco, California, on January 16, 1949, and was admitted 

by falsely representing himself to be a United States citizen. He 

had first been admitted to the United States on November 16, 1934, 

under the assumed identity of the son of a United States citizen. He 

departed from the "United States on March 22, 1941, and returned 

as indicated above. In 1951 and 1953 he filed visa petitions on 

behalf of his wife and 4 sons for nonquota status as the wife and 

children, respectively, of a United States citizen. On May 21, 1953, 

he falsely swore before an immigration officer that he was a United 

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States citizen and the father of 4 sons. On May 20, 1957, the respondent confessed his alienage, admitted he had but 2 sons and 

admitted the commission of perjury in connection with his false 

statement. on May 21, 1053. On July 25, 1958, the Board dismissed 

his appeal from the order of deportation of the special inquiry officer 

on June 18, 1958, finding he was precluded from establishing good 

moral character under sections 101(f) (3) and (6) of the Immigration and Nationality Act. The respondent thereafter made application for registry pursuant to section 249 of the Act and on May 13, 

1960, the Regional Commissioner, San Pedro, California, dismissed 

the appeal from the decision of the District Director, San Antonio, 

Texas, dated April 19, 1960, solely on the ground that the applicant 

was inadmissible under section 212(a) (9), admission of the commission of perjury. 

The motion for reopening and reconsideration is based on the 

ground that the respondent believes the Regional Commissioner 

herein applied an erroneous rule of law in denying registry under 

section 249 of . the Immigration and Nationality Act. It is set forth 

that the motion is addressed to the Board of Immigration Appeals 

in view of the fact that respondent has been ordered deported and 

the Board now has jurisdiction in this matter. 

The Acting District Director, San Antonio District, by memorandum dated Fehr-nary 20, 1962, addressed to this Board, asserts 

that the motion should be denied on the ground of lack of appellate 

jurisdiction for the reasons that the Board does not have authority 

to reopen and reconsider an order of the regional commissioner denying an application under section 249 of the Immigration and Nationality Act and regulations thereunder; that 8 CFR 3.2 states 

that the Board may reconsider its own decisions and that decisions 

of the Commissioner in certain enumerated types of proceedings may 

be regarded as the Board's decisions for the purpose of this rule, but 

that none of the Commissioner's decisions so described involve 8 CFR, 

Part 249; that it is nowhere provided that jurisdiction over Part 249 

cases, formerly delegated to regional commissioners, has been transferred to the Board in the same way as Commissioner's decisions, 

pursuant to the last sentence of 8 CFR 3.2; that the appellate 

authority of the Board is limited to the category of cases listed in 

8 CFR 3.1 (b), which does not include section 249 cases; that the 

Board has jurisdiction over section 249 applications only upon a 

review of an order by a special inquiry officer made pursuant to 

section 242 and regulations thereunder ; that denial of a proceeding 

under 8 CFR, Part 249, by a district director is final unless an 

appeal is filed in which event, if the denial order is affirmed by the 

regional commissioner having appellate jurisdiction, the order becomes final and not appealable; that when an alien renews a sec716 
tion 219 application iu deportation peoccodingEi, no provided in S CFR 

249.2 and 8 CFR 242.17(a), the record and decision which the Board 

has authority to review on appeal pursuant to 8 CFR 3.1(b) (2) and 

8 CFR 242.21 are the record and decision of the special inquiry 

officer, not those of the district director and the regional commissioner. 

The motion to reopen and to reconsider sets forth that the decision 

of the Regional Commissioner is erroneous as a matter of law on the 

following grounds: (1) that the admission of perjury was not effective because retraction prior to exposure avoids perjury; (2) that 

the respondent has not made an effective admission of the commission of the crime of perjury for the reason that an adequate definition of perjury in understandable terms was not given and that all 

the essential elements were not admitted, in that, there was no admission by the alien that the immigration officer was duly authorized 

to administer an oath or that the alien's testimony was material; 

(3) that the offense of perjury allegedly committed in 1953 was 

barred by a 5 -year statute of limitations, 18 U.S.C. 3282, and that 

admission of an offense barred by the statute of limitations should 

not support inadmissibility. 

The memorandum of the District Director maintains that there 

was a valid and binding admission of the commission of the crime 

of perjury. At oral argument the Service representative rested his 

argument upon lack of jurisdiction in the Board to reconsider the 

denial of the registry application. Counsel has filed a supplemental 

memorandum, citing 8 CFR 3.8, which he contends clearly contemplates that the Board, as distinguished from the district director 

and the regional commissioner, shall have authority to reconsider 

a matter for an error of law. We shall dispose of the jurisdictional 

issue first. 

The appellate jurisdiction of the Board of Immigration Appeals 

is set forth in section 3.1(b), Title 8 CFR, which provides that 

appeals shall lie to the Board from the following: 

(1) Decisions of special inquiry officers In exclusion cases, as provided in 

Part 236 of 8 CFR. 

(2) Decisions of special inquiry officers in deportation cases, as provided in 

Part 242. 

(3) Decisions on applications for the exercise of the discretionary authority contained in section 212(c) of the Act, as provided in Part -212. 

(4) Decisions involving administrative fines and penalties, including mitigation thereof, as provided in Part 280. 

(5) Decisions on petitions filed in accordance with section 205 of the Act 

or decisions revoking the approval of such petitions in accordance with 

section 206 of the Act, as provided in Parts 205 and 206. 

(0) Decisions on applications for the exercise of the discretionary authority authorized in section 212 (d )' (3) of the Act, as provided in Part 212. 

(7) Determinations relating to bond, parole, or detention of an alien, as 

provided in Part 242. 

717 
The subject of reopening or reconsideration is dealt with in section 3.2 of Title 8 CFR. It provides in pertinent part that motions 

to reopen in deportation proceedings should not be granted unless it 

appears to the Board that the evidence sought to be offered is material and was not available and could not have been discovered or 

presented at the former hearing. Section 3.8(a), Title 8'CFR, states 

that motions to reopen shall state the new facts to be proved and 

shall be supported by affidavits or other evidentiary material and 

that motions to reconsider shall state the reasons upon which the 

motion is based and shall be supported by such precedent decisions 

as are pertinent. Section 3.2, Title 8 CFR, states that for the purpose of this section, any final decision made by the Commissioner 

prior to the effective date of the Act with respect to any case within 

the classes of cases enumerated in section 3.1(b) (1), (2), (3), (4), 

or (5) shall be regarded as a decision of the Board. 

The regulations, 8 CFR 3.2 and 8 CFR 3.8, contemplate that a 

motion to roopon or to reconsider a previous Board dooicion will lie 

for newly discovered evidence or for errors of law.' The seven categories embracing the Board's jurisdiction are set forth in 8 CFR 

3.1(b). The second category, a decision of the special inquiry officer 

in deportation proceedings as provided in Part 242, is involved in 

the present motion. Part 242, as amended, 2provides that applications under sections 243(a), 243(h), 245 and 249 of the Act may be 

made, or if previously denied by the district director, may be renewed under Part 242. However, there appears on pages 12110 and 

12111 of the Federal Register of December 19, 1961, a recapitulation 

of the miscellaneous amendments to the various parts of Title B CFR, 

which thereafter follow, the last paragraph preceding the amendment to Part 103 reading as follows: 

In addition to the amendatory regulations which are set out below and are 

hereby adopted, determinations by district directors under section 243(a) of 

the Act, decisions by regional commissioners under sections 243(h), 245, and 

249 of the Act, and decisions by district directors under sections 245 and 249 

of the Act which have not been appealed or certified shall be final in all cases 

where (1) the determination or decision has been made prior to January 22, 

1962, in accordance with the regulations then in effect, and (2) a finding of 

deportability has been made by a special inquiry officer prior to said date; 

and the alien shall not be entitled to have any such determination or decision 

by the district director or regional commissioner reconsidered in accordance 

with the amended provisions of Part 242 unless he can establish that be is 

in possession of evidence which Is material and which by due diligence could 

not have been discovered and presented for consideration at the -time of the 

prior adjudication. 

In the present case the decision of the Regional Commissioner, San 

Pedro, California, affirming the decision and order of the District 

Gordon and Rosenfield, Immigration Law and Procedure, p. 49. 

26 P.R. 12110-12114 (December 19, 1961, effective January 22, 1962). 

718 
Director solely on the ground that the applicant was inadmissible 

under section 212(a) (9), perjury, and was, therefore, precluded from 

adjustment sought under section 249 of the Immigration and Nationality Act, was entered May 13, 1960. The decision of the District 

Director denying the application for status as a permanent resident 

under section 249 was dated April 19, 1960, after consideration of a. 

brief filed by the then counsel contesting the admission of the crime 

of perjury, citing 31 after of 3-823, the same a.dininistrative 

decision cited by present counsel in his motion. The same point of 

law was raised previously and was decided against the alien.' No 

case has been cited for the proposition that a statute of limitations 

applies to admissions of the commission of a crime and the immigration law does not prescribe, any. 

The determination of the section 249 application was rendered 

prior to January 22, 1962. It could not be renewed in accordance 

with the amended provisions of 8 CFR Part 242, unless new and 

material evidence, previously not available, was presented. The 

language quoted shove sets forth a statement of administrative 

finality for determinations on decisions specified therein which were 

rendered prior to January 22, 1962, unless the possession of newly 

discovered evidence can be shown. None has been offered in the 

present motion. The motion to reconsider and reopen under 8 CFR 

3.2, as amended, will be denied. 

ORDER: It is ordered that the motion be and the same is hereby 

denied. 

We are not persuaded there was any error in the previous decision. Mat 

ter of R—R—, 3-823, involved a retraction on the following day; Matter of 

G—M—, 7-40, is not applicable; here the alien admitted he had been sworn. 

Cf. United States or rel. De La Puente v. Swing, 146 F. Stipp. 648, aff'd 239 

10.2d 759 (C.A. 5, 1956), as to admission of essential elements of perjury: (1) 

the taking of an oath whet. the law authorizes an oath to be administered; 

(2) to testify truly; (3) willfully-aull contrary to such oath making a false 

statement; (4) as to a material fact; (5) which he did not believe to be true; 

not necessary to understand the legal definition of perjury. 

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