Interim Decision #2077 

MATTER OF GERONIMO 

In Deportation Proceedings 

A-18924288 

Decided by Board March 5, 1971 

(1) Determination as to the institution of deportation proceedings against a 

deportable alien lies within the province of the District Director. Where 

deportation proceedings have been instituted, it is not within the province 

of the special inquiry officer, nor the Board of Immigration Appeals on 

appeal, to review such action but to determine whether deportability is established by evidence which is clear, convincing and unequivocal. 

(2) Allegations of misconduct against Service personnel and respondent's 

former attorney made on appeal in deportation proceedings and based on 

matters outside the administrative record, should not be casually asserted 

but should be specified and stated under oath. 

CHARGE: 

Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmigrant visitor—remained longer than permitted. 

This is an untimely appeal from a decision of a special inquiry 

officer, finding the respondent deportable on the above-stated 

charge and granting her the privilege of voluntary departure. We 

shall consider the case on certification under 8 CFR 3.1 (d). 

Respondent is a 24-year-old unmarried female, native and citizen of the Philippines, who was admitted to the United States as 

a nonimmigrant visitor for pleasure on October 4, 1969 and has 

remained longer than permitted. At a deportation hearing on 

January 22, 1971, at which she was represented by counsel, she 

admitted the factual allegations of the order to show cause and 

conceded deportability. On the same day, the special inquiry 

officer granted her the privilege of departing voluntarily on or before February 22, 1971. Respondent thereafter retained present 

counsel, whose notice of appeal in her behalf, though dated January 29, 1971, was not filed until February 5, 1971. 

In his notice of appeal and supporting brief, present counsel 

seeks reversal on the basis of factual allegations outside the ad6R0 
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ministrative record. In substance, the brief asserts that respondent obtained her visitor's visa through travel agents in the 

Philippines who, without her knowledge, had falsified her visa 

application and passport; that following entry, on April 1, 1970 

respondent filed a third preference visa petition, which has been 

approved by the District Director; that respondnet, on interview 

by Service investigators, gave a detailed statement as to her visitor's visa; that the District Director, contrary to his usual policy,_ 

declined to permit respondent to remain in the United States 

until a quota number became available, but instead instituted 

these deportation proceedings against her. The brief asserts that 

respondent's former counsel failed at the deportation hearing to 

raise a defense based on the allegedly improper actions of the 

District Director and the Service investigator. 

The assertion that the District Director abused his discretion 

in refusing to permit the respondent to remain in the United 

States after approval of her visa petition presents no defense cognizable in these deportation proceedings. It is within the District 

Director's prosecutive discretion whether to institute deportation 

proceedings against a deportable alien or temporarily to withhold 

such proceedings. Where such proceedings have been begun, it is 

not the province of the special inquiry officer (or of this Board on 

appeal) to review the wisdom of the District Director's action in 

starting the proceedings, but to determine whether the deportation charge is sustained by the requisite evidence. Our review of 

this record satisfies us that deportability has been established by 

evidence which is clear, convincing and unequivocal. The allegations which present counsel now makes with respect to the District Director raise no proper defense to the deportation charge. 

Respondent's former attorney was not remiss in not attempting 

to put forward such an untenable defense. 

The second point asserted in the notice of appeal is that the respondent's failure to develop at the hearing the facts of her victimization by the Philippine travel agents deprived her of the opportunity to leave voluntarily. Since the special inquiry officer did 

in fact grant respondent the privilege of voluntary departure, we 

'fail to see how she has been prejudiced by the failure of her former attorney to burden the record with the irrelevant details of 

her alleged deception by her travel agents. 

The third ground for appeal in the notice of appeal is stated 

thus: "Immigration Service through their threats and misleading 

statements to induce alien and her former counsel to present no 

real defense to the charges in the hearing." This statement is not 

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merely ungrammatical. If untrue, it is irresponsible. Grave 

charges such as these, made against Service personnel and respondent's former attorney, and obviously based on matters outside the administrative record, should not be casually asserted in 

an unsworn allegation if they are seriously urged. The facts 

should be specified and stated under oath, subject to the penalties 

of perjury. If not seriously urged, such charges should not be asserted at all. 

We do not know what, if anything, happened outside the administrative record now before us. Our careful review of that rec-

)rd satisfies us that the special inquiry officer conducted a fair 

tearing, properly found the respondent deportable as charged, 

Ind accorded her the privilege of voluntary departure, the only 

orm of discretionary relief from deportation for which respondnt is eligible. If present counsel feels that additional voluntary 

'eparture time is needed, he has an adequate remedy in an appliation to the District Director under 8 CFR 244.2. In support of 

hat application he may present such proofs as he may deem apropriate, including the evidence of respondent's alleged good 

iith in obtaining the visa, etc. 

ORDER: The decison of the special inquiry officer is affirmed. 

It is further ordered that, pursuant to the special inquiry 

ficer's order, the respondent be permitted to depart from the 

nited States voluntarily within 31 days from the date of this 

.der or any extension beyond that time as may be granted by 

e District Director; and that, in the event of failure so to de-

.rt, the respondent shall be deported as provided in the special 

4uiry officer's order. 

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