Interim Decision #1842 

MATErat OF R1VA 

In Deportation Proceedings 

A-11239287 

O 

Decided by Board March, 4,1968 

The refusal of the special inquiry ellicor to adjudiente in fleportation proceedings in the case of respondent, who is deportable as a remained longer nonimmigrant, the question of respondent's inadmissibility under section 212 

(a) (22) of the Immigration and Nationality Act should he return to this country, was proper since such a determination was neither germane to the issue 

of his deportability nor to his eligibility for discretionary relief. 

ONABGE: 

Order: Act of 1052—Section 241(a) (2) (8 1251 (a) (2)3—Nonimmigrant 

representative of foreign information media—remained 

longer. 

ON BEHALF of RESPONDENT: ON BEHALF Or SERVICE: 

Elmer Fried, Esquire Thomas W. Winnerman 

510 Madison Avenue Trial Attorney 

New York, New York 10022 (Brief filed) 

Respondent, who conceded deportability on the charge in the order 

to show cause, applied only for voluntary departure, and was granted 

that relief, appeals from the refusal of the special inquiry officer to adjudicate, in these proceedings, the question of whether he is excludable 

under section 212(a) (22) of the Immigration and Nationality Act. 

The appeal will be dismissed. 

Respondent is a 26-year-old married male alien, a native and citizen 

of Peru. The relevant facts are set forth with particularity in the decision of the special inquiry officer and need not be repeated here. It 

is sufficient to note that from 1956 to the present, respondent has been 

in and out of the United States with at least four different visas. He has 

been here as a visitor, a student, a representative of foreign information 

media, and twice was admitted for permanent residence. He twice gave 

up his permanent resident status for the admitted purpose of avoiding 

service in the United States Armed Services. His testimony is that his 

reason for the various status changes he made was also to avoid mill646 
Interim Decision #1842 

tary service, without violating any criminal statutes of the United 

States. The basis for such actions was his alleged intention, at all times, 

to remain.in this country only temporarily, eventually to return to his 

native Peru. 

Now 26 years old and married to an. American citizen, respondent 

has apparently decided that be would like to settle, hers permanently., 

As a native of a Western Hemispheie country, he is ineligible to apply 

for adjustment to permanent resident status in these proceedings, or 

in any proceedings in the,United Stites. It will benecesiary for him 

to leave this country and seek an. immigrant visa at 4 00neigate abroad. 

Inasmuch as a determinatiOn of reepondent's, admits' sibility or excludability under section 212(a) (22) is neither necessary nor relevant 

to the issues properly before the 'special inquiry officer in the instant 

proceedings, we believe the special inquiry ()facer properly refused 

to adjudicate this question. ,We hold further that he was -carp* in 

considering respondent's testimony as tohis conduct vii-a-vis military 

service, the,draft board, e tc., only in the context of its effect on. whether 

or not he was deserving of the discretionary relief he sought. It was 

his finding, which we see no reason to disturb, that in view of the 

total picture respondent's actions do not warrant a finding that he 

is ineligible for or unworthy of a grant of voluntary departure. 

Counsel, who neither argued nor briefed his position on appeal, 

stated in the Notice of Appeal: 

• • • where counsel urgently requests such a ruling to be made, [whether 

respondent left the United States with the intent to avoid or evade military 

service and would thereby be inadmissible under section 212(a) (22)) as a matter of discretion the Special Inquiry Officer—assorolue he has jurisdiction to 

make such ruling and assuming it would be germane to the issue—ought in 

the exercise of discretion to rule upon it; and that therefore it was in error, in 

the instant case, for the Special Inquiry Officer to decline to rule upon the issue 

no tendered 4' * 4%1 

We cannot agree with the position taken by counsel. First, the 

question was not germane to the issue before the special inquiry officer; whether or not respondent was deportable for having overstayed his authorized period of stay as a representative of foreign 

information media is in no way related to whether or not he may be 

sOf interest is the case of Licea-Gomez v. Paliod, 193 F. Stipp. 577, decided 

October 11, 1960, in which the District Court, Northern District of Illinois, 

upheld the refusal of the special inquiry officer, affirmed by the Board, to rule 

iu exclusion proceedings on whether the applicant was excludable under section 

212(a) (22) ; the alien had been refused a visa by the Consul on the basis of 

that section, but was charged by the Government with being excludable only 

because he was not in possession of a visa. The Court held the special inquiry 

officer need go no further than that charge. 

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considered emokulable as one who left this country to avoid military 

service in time of war or national emergency. Neither is a decision 

as to whether ha would be excludable for such conduct, if it is established. that he has been guilty of it, relevant to his eligibility for voluntary departure. On this basis, such a decision by the special inquiry 

officer would be a cluttering of the record with &ohm. Further, the 

making of such a decision by the special inquiry officer would have 

been a purely academic exercise, for the Consul before whom respondent must make his application for a visa would be in no way bound by 

such a ruling of the special inquiry officer; see sections 104(a) and 

221(g) of the Immigration and Nationality Act. 

The ruling requested by counsel was not germane to the issues herein 

and any decision or holding by the special inquiry officer would 

settle no legal question and be dispositive of no issue. There was no 

error in his refusal to rule on an extraneous question. We, therefore, 

hold the appeal from that decision to be without sound legal basis. 

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

dismissed. 

648