Interim Decision #2183 

MATTER OF CONCEMO 

In EXclusion Proceedings 

A-20079513 

Decided by Board February 12, 1973 

The Board of Immigration Appeals Lacks authority to direct an alien's enlargement on parole under section 212(d)(5) of the Immigration and Nationality 

Act.* 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrant—no immigrant visa. 

ON BEHALF OF APPLICANT: 

Maurice A. Reichman, Esquire 

662 Fifth Avenue 

New York, New York 10022 

(Brief filed) 

ON BEHALF OF SERVICE: 

David L. Milhollan 

Appellate Trial Attorney 

This is an appeal from an order of a special inquiry officer 

excluding the applicant from admission to the United States. The 

applicant's inadmissibility is conceded. The only issue raised is 

whether this Board has power to direct his enlargement on parole 

under section 212(d)(5) of the Immigration and Nationality Act, as 

counsel requests. We hold we lack that power. The appeal will be 

dismissed. 

The facts are not in dispute. The applicant is a 39-year old 

married male alien, a native and citizen of Cuba: He sought to . 

leave Cuba in 1969 and on February 19, 1970, he received a Cuban 

passport valid for five years. lie intended ultimately to come to the 

United States, where his mother and one sister were permanent 

residents and another sister was a parolee. 1Unable to qualify for a 

11 Gordon and Rosenfield, Immigration Law and Procedure, § 6.7a, p. 6-37 

(1972 Cum. Supp.): "... A recent problem has been presented by the flight of 

many Cubans from the Castro government. About 250,000 of these had reached 

the United States by June 80, 1965. Moreover, in 1965 the United States 

undertook to receive large numbers of additional refugees from Cuba. Such 

Cuban refugees are admitted to the United States either as immigrants or under 

a waiver of their nonimmigrant documentary requirements or under extended 

(Footnotes omitted). 

* Affirmed: 360 F. Supp. 454 (S.D.N.Y., 1973). 

278 
Interim Decision #2183 

visa for entry into the United States, he obtained successive visas 

to enter Spain for ninety-day periods, but was denied permission 

to leave Cuba until he had fulfilled a government imposed obligation to perform labor in the fields. He was finally permitted to 

depart for Spain on January 27, 1972, leaving behind in Cuba his . 

 wife and their child, now three years old. Following arrival in 

Spain, he received successive extensions of his permission to 

remain there temporarily, the most recent on November 11, 1972. 

Receiving word that his mother was seriously ill in New York, 

with the assistance of an Italian national he made his way to Italy 

and obtained passage on a flight from Rome to New York, arriving 

December 17, 1972, when he applied for admission as a visitor. 

Because of doubt as to his admissibility, he was detained for a 

hearing before a special inquiry officer. His mother had just died 

and he was permitted to attend her funeral under safeguards. ' 

After a hearing at which the applicant conceded he wishes to 

remain here as a refugee indefinitely, the special inquiry ,officer 

concluded that he is ineligible for a waiver of nonimmigrant visa 

and that he is inadmissible as a visaless immigrant. It was 

brought out that the District Director, after consultation with the 

State Department's Office of Refugee and Migration Affairi, had 

refused to enlarge the apPlicant into the United States on parole 

as a refugee. The applicant was offered and declined an opportunity to withdraw his application for. admission. The special inquiry 

officer ordered his exclusion and deportation and this appeal 

followed. 

On appeal, counsel concedes that the applicant is ineligible for a 

visa waiver and is inadmissible. However, relying on this Board's 

decision in Matter of R—, 3 I. & N. Dec. 46 (BIA, 1947), he asserts 

that we have power to enlarge the applicant on parole and he asks 

that we do so. We conclude that we lack that power. ' 

Prior to the Immigration and Nationality Act 'of 1952, inadmissible aliens were sometimes enlarged into the United States on 

parole temporarily for humanitarian reasons. Parole' was then an 

administrative expedient, fashioned out of necessity and without 

statutory sanction. As we pointed out in Matter of R—, supra, 

parole was a useful device of long standing serving many purposes 

and we saw no reason why it should not be available to us as well 

as to the Service. 

Parole first received statutory sanction in section 212(dX5) of the 

1952 Act, which provides as follows: 

The Attorney General may in his discretion parole into the United States 

temporarily under such conditions as he may prescribe for emergent reasons or 

for reasons deemed strictly in the public interest any alien applying for 

admission to the United States, but such parole of such alien shall not be 

279 
Interim Decision #2I83 

regarded as an admission of the alien and when the purposes of such parole 

shall, in the opinion of the Attorney General, have been served the alien shall 

forthwith return or be returned to the custody from which he was paroled and 

thereafter his case shall continue to be dealt with in the same manner as that of 

any other applicant for admission to the United States. 

In the regulations which went into effect with the 1952 Act, the 

Attorney General specifically delegated the parole power to the 

Service's District Directors and officers in charge of ports of 

entry? Under the current regulation, 8 CFR 212.5(a), it is only the 

District Directors who are specifically authorized to wield this 

power: 

The district director in charge of a port of entry may, prior to examination by 

an immigration officer, or subsequent to such examination and pending a final 

determination of admissibility in accordance with sections 235 and 236 of the Act 

and this chapter, or after a finding of inadmissibility has been made, parole into 

the United States temporarily in accordance with section 212(dX5) of the Act any 

alien applicant for admission at such port of entry under such terms and 

conditions, including the exaction of a bond on Form L-352, as such officer shall 

deeM appropriate. At the expiration of the period of time or upon accomplishment of the purpose for which parole was authorized or when in the opinion of 

the district director in charge of the area in which the alien is located that 

neither emergency nor public interest warrants the continued presence of the 

alien in the United States, pirole shall be terminated upon written notice to the 

alien and he shall be restored to the status which he had at the time of parole, 

and further inspection or hearing shall be conducted under section 235 or 236 of 

the Act and this chapter, or any order of exclusion and deportation previously 

entered shall be executed. If the exclusion order cannot be executed by deportation within a reasonable time, the alien shall again be released on parole unless 

in the opinion of the district director the public interest requires that the alien 

be continued in custody. 

The Attorney General has never specifically delegated to this 

Board direct authority to exercise his parole power. Neither has 

he included within our appellate jurisdiction under 8 CFR 3.1(b) 

authority to review a District Director's parole determination in 

exclusion proceedings. In expulsion proceedings against aliens 

already within the United States, on the other hand, our appellate 

jurisdiction to review parole determinations is clearly spelled out. 

See 8 CFR 3.1(b)(7); 8 CFR 242.2(a), (b); Matter of :iwun, 13 I. & N. 

Dec. 457 (BIA, 1969, 1970). We have consistently taken the position 

that the parole power Under section 212(dX5) of the Act is not 

within the scope of our authority. 

Counsel points, however, to the generous quality of the general 

authority conferred by the Attorney General on the Board in 8 

CFR 3.1(d)(1): 

(d) Powers of the Board. (1) Generally. Subject to any specific limitation 

prescribed by this chapter, in considering and determining cases before it as 

2 See 8 CFR 212.9, 17 F.R. 11486 (December 19, 1952). 

280 
Interim Decision #2183 

provided in this part the Board shall exercise such discretion and authority 

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

the disposition of the case. 

He contends that the regulation delegating parole authority to 

District Directors, 8 CFR 212.5, supra, does not in terms refer to 

the powers of this Board or make the District Director's delegated 

power exclusive.3He argues that the regulation contains no 

"specific limitation" on the authority of this Board within the 

meaning of 8 CFR 3.1(dX1) and that this Board therefore retains 

the Attorney General's parole power. He points out that the text of 

8 CFR 3.1(dX1) is substantially the same today as its predecessor 

in effect when we decided Matter of R—, supra. 4 If we had parole 

jurisdiction under our general grant of the Attorney General's 

powers at that time, he argues, we retain that jurisdiction now 

under the current counterpart of that grant. 

Despite the beguiling simplicity of this thesis, we are satisfied 

that it is untenable. In 1947 when we asserted our authority to 

grant parole in Matter of R—, supra, the parole power was 

unauthorized by statute and there were no regulations defining 

its grant. We felt we had as much right as the Service to make use 

of this useful administrative device. The 1952 Act changed all that. 

Not only did it define and delimit the parole power, but the 

Attorney General's implementing regulations specifically delegated the power in terms to Service personnel in charge of ports of 

entry. We regard this as a specific limitation on the Board's 

hitherto asserted power to grant parole by virtue of the general 

authority it had received from the Attorney General. When in 1954 

it was concluded that this Board should have jurisdiction to 

review detention, bond, and parole determinations made by the 

Service in expulsion proceedings, the implementation of our jurisdiction in this regard was accomplished by specific regulation. See 

Matter of :iwun, supra. Had it been thought that the Attorney 

General's grant of general authority to the Board was broad 

enough to cover such determinations of the Service, there would 

have been no need for further regulations on the subject. 

Moreover, in the nature of things it is singularly appropriate 

that the parole power in exclusion proceedings be exercised by 

Service personnel at the field office level and not by this Board. As 

a quasi-judicial appellate tribunal, we make our determinations on 

appeal solely on the basis of the administrative record made in the 

Service proceedings. We are ill-equipped to make the inquiries and 

3 Compare 8 CFR 243.4, and 8 CFR 244.2, giving the District Director "sole 

jurisdiction" of certain determinations and specifically barring appeals therefrom. 

4 See 8 CFR 90.3(e),1949 Rev. 

281 
Interim Decision #2183 

to conduct the investigations needed to make the summary decisions relating to the parole of recently arrived aliens. The problems presented in making those decisions are not legal problems 

but are essentially discretionary in nature, frequently involving 

rapidly changing considerations of foreign policy. The Service's 

field officers on the scene are in the best position to make such 

determinations. They have the arriving alien in custody and are 

better able to assess the emergency which. is cited as the basis for 

enlargement of the alien on parole. They have investigative 

facilities and open lines of direct communication with the State 

Department and other agencies involved in formulating policies 

affecting our foreign relations. 5We have no such facilities and as a 

quasi-judicial tribunal it is undesirable that we embark on such 

inquiries of an investigative nature. 

We conclude that the Attorney General has not delegated to us, 

directly or by implication, his parole authority under section 

212(d)(5) of the Act. We have no alternative but to deny the 

request for parole. If it should turn out that the exclusion order 

cannot be executed by deportation within a reasonable time, a 

further application for parole can be made under 8 CFR 212.5(a) to 

the District Director. 

ORDER: The appeal is dismissed. 

5 The Service procedures in considering asylum requests by arriving refugees 

are described in 1 Gordon and Rosenfield, Imialgi ation Law and Procedure, 

§ 3.17e (1972). 

282