MATTER or NIA DEPORTATION Proceedings 

A-12281979 

Decided by Board March 13, 1962 

Adjustment of status—Section 245, Immigration and Nationality Act—Effect 

of savings clause, Federal Register of December 19, 1961. 

Denial on October 23, 1961, by the district director of an application for adjustment of status under section 245 of the Act became final when applicant failed to anneal therefrom. Such application may not be renewed 

before, or considered by, a special inquiry officer in deportation proceedings 

under regulations effective January 22, 1962, in the absence of new evidence 

which could not have been discovered and presented for consideration at 

the time of the prior adjudication (Par. preceding 8 CFR 103, 26 F.R. 12111, 

December 19, 1961). 

CHARGE : 

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

longer than permitted after nonimmigrant admission (temporary 

visitor). 

BEFORE THE BOARD 

DISCUSSION: This is an appeal from the order of the special 

inquiry officer finding respondent deportable upon the ground 

stated above and granting her voluntary departure. Briefs have 

been filed by counsel for respondent and by the examining officer. 

The appeal will be dismissed. 

Respondent, a 55-year-old single female, a native and citizen of 

Germany, was admitted to the United States as a visitor for 

pleasure on July 7, 1961. Her stay was extended to September 6 1 

 1961. She failed to depart within the period for which she had 

been admitted and is clearly deportable upon the ground stated 

above. 

Counsel contends that there was a denial of due process at the 

deportation hearing in that an unqualified interpreter was used in 

the deportation hearing_ The record reveals that at the respondent's hearing on January 2, 1962, she was advised that an official 

German interpreter (who is elsewhere shown to be J—U—) would 

translate all questions and matters and that if she did not understand him she was to advise the special inquiry officer (p. 2, hear581 
in; January 2, 1962). The same interpreter was used at the continued hearing on January 5, 1962. After several questions were 

addressed to the respondent which were apparently answered responsively, counsel objected to the use of the interpreter on the 

ground that he did not believe a proper interpretation was being 

given. The special inquiry officer asked the interpreter whether 

he understood the respondent and whether the respondent understood him and the interpreter replied that he was satisfied that 

this was the case. The objection of counsel was overruled and 

nothing further appears in the record concerning the nature of the 

interpretation. Attached to the appeal is an affidavit from the 

respondent's nephew stating that he was present at the hearing; that 

he is well qualified in the German languasee; that, numerous questions and answers were incorrectly interpreted; and that it is his 

belief that ,Ite interpreter was not competent. No specific instance 

of misinterpre tation is set forth. No possible defense to the deportation proceeding based upon what the respondent "intended" 

to say is offered, nor is any ground given for finding , respondent is 

not deportable. Respondent's testimony at the hearing is consistent 

with her affidavit made before. the Service using a different interpreter on December 14, 1961. We, believe the contention is without 

merit. 

Counsel contends that respondent was not given adequate notice 

of the deportation hearing. The order to show cause was served 

on December 26, 1961; counsel received a copy the following day. 

Hearing was scheduled for January 2, 1962, and adjourned until 

January 5, 1962, to enable counsel to be present. At the hearing 

on January 5, 1962, the special inquiry officer offered counsel an 

opportunity to consult with his client for several hours before proceeding with the case if counsel felt it was advisable, but the offer 

was refused. We believe the record establishes that respondent 

and counsel had adequate notice of the deportation hearing. Moreover,. as the examining officer points out, counsel had represented 

respondent before the Service since prior to October 23, 1961. 

Counsel contends that there was a denial of due process in that 

respondent was not granted a continuance to prepare a defense and 

to prepare application for discretionary relief. Since it is apparent from this record that the respondent who was admitted as a 

visitor has remained longer than the time which was granted, it is 

difficult to see what kind of defense could have been offered had 

more time been made available and, in fact, at this late date counsel 

offers nothing to show that a possible defense exists. The facts 

previously outlined concerning the notice given respondent and 

opportunities for presenting a defense adequately dispose of the 

contention that she was not given an adequate opportunity to prepare a defense. 

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We find nu denial of due process in failure to grant a continuance 

for respondent to prepare an application for discretionary relief. 

At the time of the hearing on January 5, 196, counsel moved for a 

continuance to January 22, 1962, or sometime thereafter when new 

regulations would become effective which, in his opinion, would 

have,enabled the respondent to make an application for adjustment 

of status under section 245 of the Immigration and Nationality 

Act (8 1255) or section 245(h) of the Immigration tied 

Nationality Act (8 U.S.C. 1253), and for voluntary departure. The 

;examining, officer objected to a continuance on the ground that 

relief under section 245 had already been applied for and denied 

(October 23, 1061) and that no appeal was taken from such denial 

although oee could have been taken (within la days). (Counsel 

explains that no appeal was taken because of his belief that under 

the new regulations he would have an opportunity to obtain a new 

consideration of the application with an appeal to the Board 

rather than to a representative of the Service.) 

Failure to appeal from the denial of the application under section 245 in the hope that respondent would be able to make. a new 

application for such relief before a special inquiry officer with an 

appeal to the T3card under the preliminary proposals published 

in Volume 26 of the Federal Register, pages 9858-9860, was not 

justified by anything expressed in the proposals, nor did the proposals carry the implication that such relief would be available. 

The purpose of the new regulations was not to provide an additional review of a decision denying an application under section 

245 but to substitute review by the Board for review by the regional commissioner. Respondent could have had review of the 

denial by the regional commissioner. On January 5, 1962, when 

the motion for continuance was made, it was quite clear from the 

regulations which were to become effective on January 22, 1962, 

that an alien who had obtained a final decision on an application 

under section 245 of the Act would not be entitled to a hearing 

upon a new application and would not be entitled to reconsideration 

of the application which had been denied, in the absence of proof 

to the Board that the alien was in possession of evidence which was 

material and which by due diligence could not have been discovered 

and presented for consideration at the time of the prior adjudication 

(par. preceding 8 CFR 103, 26 F.R. 12111, December 19, 1961). 

Respondent's failure to seek review by the regional commissioner 

neither gives him the right to obtain review by this Board nor the 

right to have a de novo hearing upon his application. The decision 

of the district director achieved finality before January 22, 1962. 

It became the decision of the Board and will not be reconsidered 

in the absence of proof that reconsideration is required because 

583 
there exists evidence which is material and was not available and 

could not have been discovered or presented at the prior hearing 

(8 CFR 3.2, 27 F.R. 96-7, January 5, 1962). As to other discretionary relief, the application for voluntary departure made at the 

hearing has been granted. The appeal reveals no desire to file an 

application for relief under section 243(h) of tho Acf. However, 

we shall permit such an application to be filed at a reopened hearing, if request is made for such action within seven days after 

the date of this order. This action is not to be taken as an expression of opinion as to the desirability of filing such an application 

nor as an expression of opinion upon the merits of an application 

if one is filed. The action is taken solely as an administrative 

measure of an impersonal nature to provide a procedure for application for relief without the necessity of having an application for 

this purpose made to the Board. 

We find no necessity for going into the issue of the voluntariness 

of the nature of Communist Party membership respondent had in 

Germany since deportation is not sought upon this ground and the 

Service does not oppose the grant of voluntary departure. 

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

dismissed. 

It is further ordered that upon request made to the special inquiry 

officer within seven days of the date of this order, he shall reopen 

proceedings solely to provide respondent an oppertunity to file an 

application for relief under section 243(h) of the Act and the special inquiry officer shall thereafter take such further action as he 

may deem appropriate. 

584