Interim Decision #2149 

MATTER OF FELIX 

In Deportation Proceedings 

A-17236014 

Decided by Board May 17, 1972 

A motion to reopen or reconsider, submitted with the required fee, may not be 

rejected as inadequate without a written adjudication stating the basis for 

decision. 

CHARGE: 

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

visitor—•remained longer than permitted. 

ON BEHALF OF RESPONDENT: 

Earl R. Steen, Esquire 

840 North Broadway 

Suite 200 

Los Angeles, California 90012 

ON BEHALF ny SERVICE! 

Charles Gordon 

General Counsel 

This case is before us pursuant to our order dated February 23, 

1972, directing that the record be certified to us for review under 8 

CFR 3.1(c). 

Respondent is a 44-year-old male alien, native and citizen of the 

Philippines, who was admitted to the United States on or about 

September 12, 1965 as a nonimmigrant visitor and has remained 

longer than permitted. At a hearing before a special inquiry officer 

on August 23, 1968, respondent admitted the truth of the factual 

allegations of the order to show cause and conceded deportability. 

The special inquiry officer found him to be deportable as charged 

and granted him the privilege of departing voluntarily on or 

before September 22, 1968, with provision for an alternate order of 

deportation if he failed to depart when and as required. Respondent did not appeal to this Board and the special inquiry officer's 

order became administratively final. On respondent's failure to 

depart voluntarily within the time limited, the alternate order of 

deportation vested. 

Notified to surrender for deportation on January 18, 1972, 

respondent filed a petition for review in the United States Court of 

Appeals for the Ninth Circuit, No. 72-1098. On January 20, 1972, 

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Interim Decision #2149 

counsel for respondent filed with the Service a motion to reopen 

the deportation proceedings, with the requisite filing fee. The 

motion, which was unsworn and unsupported, recited that respondent is the beneficiary of an approved sixth preference visa 

petition and is eligible for third preference status. Reopening of 

the deportation proceedings was requested in order that respondent might seek the privilege of indefinite voluntary departure. 

In a letter to counsel dated January 28, 1972, the special inquiry 

officer returned the motion without action, for the stated reason 

that he did not consider it to be a proper motion because it failed 

to meet the requirements of the regulations' The Service's General Counsel, questioning the propriety of the special inquiry 

officer's disposition of the motion, formally called the matter to our 

attention and we directed that the record be certified to us for 

review, subject to consent of the Court of Appeals, which has been 

granted. 

Judging by the terms of his letter to counsel, the special 

inquiry officer rejected the motion without adjudicating it. In our 

view, it is impermissible to dispose of a fee-paid motion in this 

fashion. A respondent in a deportation proceeding who files a 

motion and submits the required fee is entitled to an adjudication 

by the tribunal having jurisdiction? The decision need not be long 

or elaborate. However summary, it should state the basis for 

decision sufficiently, so that an appellate tribunal can appraise it. 

Decisions of special inquiry officers on motions in deportation 

proceedings are appealable to this Board under 8 CFR 3.1(b)(2). An 

alien's right to have this Board on appeal review the adverse 

decision of a special inquiry officer would be rendered nugatory if 

the special inquiry officer were permitted thus summarily to reject 

his motion without adjudicating it. 

We do not know why the special inquiry officer in this case took 

the course he did. Perhaps it was to circumvent what he considered a frivolous and time-consuming appeal to this Board, to be 

followed by equally frivolous and time-consuming litigation in the 

courts. Dilatory motions to reopen, filed on the eve of deportation, 

and dilatory appeals to this Board are not unknown to the special 

inquiry officers and to us. We have taken steps to eliminate ready 

opportunities for delay. Under our recently amended regulations, 

an automatic stay of deportation is no longer provided on appeal 

from a special inquiry officer's order denying a motion to reopen 3, 

and oral argument on such an appeal is no longer available as a 

1 The pertinent requirements are set forth in 8 CFR 103.5 and 242.22. 

2 8 CFR 103.5: "... Rulings upon motions to reopen or motions to reconsider 

shall be by written decision ..." 

3 8 CFR 3.6(b), as added by 36 F.R. 316 (January 9, 1971). 

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Interim Decision #2149 

matter of right.4We give priority to the consideration and determination of such appeals. 

There is no sound reason why we should not treat the special 

inquiry officer's letter of January 28, 1972 as a written decision 

denying the notion. The reasons why the special inquiry officer did 

not grant the motion are clearly stated and his statement that the 

motion "is returned without action" is, in a realistic sense, the 

equivalent of a denial. Treating that letter as denial adjudication, 

we conclude that the motion was properly denied. 

Not only did the motion fail to conform to the requirements of 

the regulations (footnote 1, supra), but even if supported it could 

not make out a prima facie case for reopening. What respondent 

sought by the motion was a reopening of the deportation proceedings so that indefinite voluntary departure could be requested. 

But reopening of the proceedings for this purpose would be 

meaningless; even if the proceedings were reopened, the special 

inquiry officer would have no power to grant the relief sought. 

Indefinite voluntary departure is exclusively within the power of 

the District Director. If, in the exercise of his prosecutive discretion, he declines to authorize indefinite voluntary departure and 

instead issues an order to show cause, neither the special inquiry 

officer nor this Board on appeal possesses power to review that 

discretionary determination, Matter of Geronimo, 13 I. & N. Dec. 

680 (DIA, 1971). 

ORDER: The denial of the respondent's motion to reopen is 

affirmed. 

4 8 CFR 3.1(e), as amended by 36 F.R. 316 (January 9, 1971). 

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