Interim Decision #1304 

MATralt 1.111Z 

In DEPORTATION Proceedings 

A-13212870 

Decided by Board October 23,193 

(1) Neither the Board of Immigration Appeals nor the special inquiry officer 

has authority to adjudicate an application for a waiver of the foreign residence 

requirement of section 212(e), Immigration and Nationality Act, as amended. 

(Reaffirms Metter of Rosenblatt, Int. Dec. No. 1260.) 

(2) Jurisdiction to fix voluntary departure date lies with the district director. 

If an alien fails to effect voluntary departure within the time accorded him, 

the district director is vested with the power to deport him expeditiously notwithstanding that an application for relief may be pending, if the district 

director, after consideration of the bona fides of the application, the length of 

time adjudication will take, the ability of the alien to depart and return, the 

probability of the success of the application, and other pertinent factors, decides 

that the polioy of the law will be defeated unless the alien promptly departs. 

CHARGE • 

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1 —Remained 

longer—exchange visitor. 

This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the ground stated above, denying his application for adjustment of status to that of a permanent 

resident, and granting voluntary departure. Appeal will be dismissed. 

Respondent, a 43-year-old married male, an alien, a native and citizen of Japan entered the United States on June 24, 1958 as an exchange 

visitor for a period ending June 30, 1963. He has remained without 

authorization. Deportability is conceded. The respondent's application for adjustment of status to that of a permanent resident under 

section 245 of the Act was denied on the ground that he had not established that an immigrant visa is immediately available to him. A 

-visa is not available because, respondent having been admitted as au 

exchange visitor is not eligible for the issuance of an immigrant visa 

until he has been absent from the United States for two years. 

The requirement as to absence may be waived; in fact, respondent 

filed an application for such a waiver with the District Director prior 

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to the deportation proceeding, but the application had not been ruled 

upon to the time oral argument was heard before the Board. At the 

deportation hearing, counsel asked the special inquiry officer to rule 

upon the application for the waiver; the special inquiry officer held 

that he had no jurisdiction to do this. This is the first issue we shall 

discuss. 

Counsel contends that the special inquiry officer, having the power 

to grant the greater relief (adjustment of status to permanent residence) must also have the power to grant the lesser relief (waiver of 

the requirement that there be an absence of two years) and therefore 

should have acted upon the application for the waiver. Counsel is 

aware of the fact that in Matter of Rosenblatt, Mt, Dec. No. 1260, and 

other decisions, the Board held that a special Inquiry officer has no 

authority to pass upon an application for a waiver of the absence requirement ; however, counsel believes the precedents are distinguishable because either dicta is involved or the cases would have required 

review of a prior determination made by the District Director on the 

application for a waiver. In the instant case, counsel points out that 

no decision by the District Director had been made upon the application for the waiver at the time the deportation hearing was held. 

We do not find the contention persuasive. In Matter of Rosenblatt, 

supra. the alien in deportation proceedings, requested that the special 

inquiry officer rule upon an application for a waiver under section 

•12(e) of the let. The alien contended, as in the instant case, that 

the special inquiry officer could draw authority to make such a ruling 

from his power to examine an alien's eligibility for adjustment of 

status. An application for the waiver had been denied 'by the District 

Director prior to the deportation proceeding.. The Board held that 

neither the special inquiry officer nor the Board had jurisdiction to 

consider the application or to review a decision made by the District 

Director upon such an application. The Board's decision was bottomed, not upon the fact that an application for the waiver had been 

previously denied by the District Director, but upon the fact that an 

examination of the law and regulations revealed there was no authority for the special inquiry officer or the Board to take jurisdiction in 

the matter, such authority having been specifically delegated elsewhere. We see no reason to change the decision we made in Matter 

of Rosenblatt, supra. Counsel's first contention must be rejected. 

The second issue raised by counsel arises from the fact that the special inquiry officer having granted respondent voluntary departure, 

refused, on the ground that he lacked jurisdiction, to comply with 

counsel's request that he couple the grant of voluntary departure with 

a provision that the respondent must be permitted to stay in the United 

States until there had been a ruling upon his application for an adjust373 
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ment of status. This contention is more troublesome for it points out 

that despite the fact that a special inquiry officer may have given a 

respondent in deportation proceedings. voluntary departure, the District Director may nevertheless order the respondent deported before 

a decision is made on the merits of a pending application. Counsel 

suggests that justice can be done only if a limitation is placed upon 

the District Director's power to deport an. alien until the alien's pending application for adjustment of status is decided. Counsel suggests 

that the possibility of abuse stemming from deportation of an alien 

before a ruling had been made upon an application which would have 

permitted him to become a lawful resident of the United States, requires that deportation proceedings be held in abeyance until a decision is made upon a pending application for relief. If, however, 

deportation proceedings must be held, counsel contends that either the 

decision of the special inquiry officer should be deferred until a ruling 

is received upon the application, or the order of the special inquiry 

officer finding an alien deportable and granting voluntary departure 

should contain a provision preventing deportation before a ruling is 

handed down by the District Director upon the application. 

The Service representative states that administrative reasons require 

that deportation proceedings be processed to a final conclusion giving 

the authorities the right to deport the alien, but that the Service has 

pursued a lenient policy with respect to the forcible removal of aliens 

who have applications pending. He points out that often there is a 

long delay which occurs in ruling upon applications for a waiver 

because agencies other than the Service are involved. Finally, the 

Service representative contends that the Board has no jurisdiction to 

consider the issue arising out of the length of time which an alien 

shall be permitted to remain in the United States after the special 

inquiry officer has found him deportable, when the only issue involved 

is the failure of the District Director to pass upon a pending application for relief. . - 

Although counsel has presented a few situations, some real, some 

hypothetical, which in his opinion involved or could involve abuse of 

the District Director's power to deport, we do not believe he has 

demonstrated that a real problem exists. If there should be an abuse 

of discretion, the courts, and this Board (we need not enter into a 

question as to our authority to do so at this time) have the power to 

see that justice is done. Furthermore, it appears to us that if an alien, 

having been found deportable for violation of the immigration laws, 

fails to depart in accordance with the provisions of the privilege of 

voluntary departure which has been given to him, there should be a 

power in the District Director to deport him expeditiously even 

though an application for relief may be pending, if the District Di874 
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rector, after consideration of the bona fides of the application, the 

length of time adjudication will take, the ability of the alien to depart 

and return, the probability of the success of the application, and other 

pertinent factors, decides that the policy of law will be defeated 

unless the alien promptly departs. Such power, like all power is 

subject to abuse; however, as we have stated, we have not been shown 

that it is the policy to abuse this power and it is uncalled-for to assume 

that a government official would deliberately abuse this power as a 

matter of policy. Furthermore, the Service representative has assured us that the power is leniently used.. We believe the appeal 

should be dismissed without prejudice to reconsideration if the application for the waiver is favorably acted upon. 

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

dismissed without prejudice to reconsideration if the application for 

the waiver is favorably acted upon. 

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