Interim Decision #2723 

MATTER OF NG 

In Exclusion Proceedings 

A-20820915 

Decided by Board July 24, 1979 

(1) The immigration judge and the Board have the power in either exclusion or deportation proceedings to grant nunc pro tune permission to reapply for admission following 

deportation when the grant will effect a complete disposition of the case. 

(2) Where an alien was found inadmissible in exclusion proceedings, an immigration 

judge did not have the power to grant him advance permission to reapply for admission after exclusion and deportation. 

EXCLUDABLE Act of 1952—Sec. 212(a)(20), I&N Act (8 U.S.C. 1182(a)(20))—Immigrant 

not in possession of a valid unexpired immigrant visa 

ON BEHALF OF AFYLIOANT. 0e Bon.u.r. or Sum= 

Steven Singer, Esquire James W. arable 

Barst & Mukamal Trial Attorney 

12'1 John Street 

New York, New York I0007 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb; Board Members 

In a decision dated February 2,1978, an immigration judge found the 

applicant excludable under section 212(a)(20) of the Immigration and 

Nationality Act, 8 U.S.C. 1182(0(20), as an immigrant without a valid 

unexpired immigrant visa or other valid entry document and ordered 

him excluded and deported from the United States. The immigration 

judge contemporaneously granted the applicant advance permission to 

reapply for admission following deportation,' conditioned upon the 

applicant's prompt filing of an application for such permission and his 

reapplying for admission, following his departure from this country, in 

possession of an immigrant visa.' 

' Pursuant to section 212(a)(16) of the Act, 8 U.S.C. 1182(a)(16), an alien who has been 

excluded and deported is barred from reentering the United States for one year following deportation unless he secure* permission to reapply for admission prior to the 

expiration of that one-year period. 

The trial attorney correctly noted in his brief that approval of an application for 

advance permission to reapply shall be conditioned upon the alien's departure from the 
Interim Decision #2723 

The Service has appealed from the portion of the immigration 

judge's decision which granted the applicant advance permission to 

reapply for admission on the ground that an immigration judge is 

without authority to entertain an application for such relief in an 

exclusion proceeding. Excludability is not at issue. The appeal will be 

sustained. 

An immigration judge's authority in exclusion proceedings is set 

forth as follows in S C.F.R. 236J: 

In determining cases referred for further inquiry as provided. in section 235 of the 

Act, immigration judges shall have the powers and authority conferred upon them by 

the Act and this chapter. Subject to any specific limitation prescribed by the Act and 

this chapter, immigration judges shall also exercise the discretion and authority 

conferred upon the Attorney General by the Act as is appropriate and necessary for 

the disposition of such. cases. (Emphasis added.) 

We have held that immigration judges and the Board on review have 

the power to grant permission to reapply for admission retroactively 

where such action is necessary for the complete disposition of the case. 

See Matter of S—N—, 6 I&N Dec. 73 (BIA 1954; A.G. 1954); Matter of 

Vrettakos, 14 I&N Dec. 593 (BIA 1973 and 1974), Matter of Ducret, 

Interim Decision 2483 (BIA 1976); 8 C.F.R. 242.8(a) and 3.1(d). See also 

Matter of Martinez, 15 I&N Dec. 563 (BIA. 1976). Cf. Matter of Millard, 

11 I&N Dec. 175 (BIA 1965); compare Matter of Da.—G--, S I&N Dec. 

325 (BIA 1959; A.G. 1959). Two situations have been identified in which 

that power may be exercised by the immigration judge and the Board: 

(1) where the only ground of deportability or inadmissibility would 

thereby be eliminated; and (2) where the alien would receive a grant of 

adjustment of status in conjunction with the grant of any appropriate 

waivers of inadmissibility. Matter of Ducret, supra. 

Likewise, absent an express grant of authority in the statute or the 

regulations,' before jurisdiction to adjudicate an application for advance permission to reapply for admission may vest in the immigration judge, it must -be shown that approval of the application would 

conclude the proceedings before him. Such showing is not possible in 

cases involving applications for advance permission to reapply 

presented to an immigration judge in the course of an exclusion 

hearing.' 

United States and not otherwise conditioned or limited. 8 C.F.R. 212.2(i). 

' Applications for permission to reapply for admission following deportation, nunc pro 

tune and contemporaneous as well as advance, lie primarily within the jurisdiction of 

the District Director with review by the Regional Commissioner. 8 C.F.R. 212.2(f); 8 

C.F.R. 103.1(m)(7). 

The regulations explicitly preclude an alien in deportation proceedings from applying 

to the immigration judge for advance permission to reapply. 8 C.F.R. 212.2(g); Matter of 

Vrettakos, supra. 

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Interim Decision #2723 

A grant of advance permission to reapply for admission does not 

permit termination of the proceedings or in any manner affect the 

execution of an exclusion order. On the contrary, an alien must depart 

the United States before he may benefit from a favorable disposition of 

his application. The grant of advance permission merely assures an 

excludable alien, prior to his departure, that he will not be required to 

remain abroad for the prescribed one-year period following his exclusion and deportation before seeking reentry into the United States. 

We have considered the arguments advanced by counsel and find 

them unpersuasive. We accordingly hold that the immigration judge 

lacks jurisdiction in these exclusion proceedings to consider the appli 

cant's request for advance permission to reapply for admission. The 

following orders will be entered. 

ORDER: The appeal is sustained. 

FURTHER ORDER: So much of the order of the immigration 

judge as purports to grant, or grant conditionally, an application for 

permission to reapply for admission to the United States after deportation is disapproved and set aside for lack of jurisdiction_ 

FURTHER ORDERS The order that the applicant be excluded and 

deported from the United States is affirmed. 

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