Interim Decision #2224 

MATTER OF LOPEZ 

In Deportation Proceedings 

A-20522662 

A-20522648 

Dioided by Board Aucgust 30, 1973 

Request to proceed with the filing of appeal in forma pauperis should be 

accompanied by a supporting statement disclosing sufficient details for a 

proper assessment of the claim of poverty. An attorney representing an alien 

who can afford to pay him a substantial fee should not represent to the Board, 

explicitly or tacitly, that his client is unable to pay the modest appeal-filing fee 

unless he is satisfied the request for filing of appeal in forma pauperis is made 

in good faith. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2)]—After admission as 

nonimmigrant under section 101(a)(15)—remained 

longer than permitted. 

ON BEHALF OF RESPONDENTS: H. Patrick McGarry, Esquire 

714 W. Olympic Blvd., Suite 428 

Los Angeles, California 90005 

This is an appeal from an order of an immigration judge finding 

the respondents to be deportable and granting them the privilege 

of voluntary departure. The appeal will be dismissed. 

Respondents are aliens, husband and wife, natives and citizens 

of Mexico, who were admitted to the United States as nonimmigrant visitors on or about November 6, 1972 and remained longer 

than permitted. At a joint hearing before an immigration judge on 

July 10, 1972, at which they were represented by present counsel, 

they admitted the truth of the factual allegations of their respective orders to show cause but denied deportability. The immigration judge found them to be deportable and granted them the 

privilege of departing voluntarily on or before August 10, 1973. 

They appealed. 

The Acting District Director, asserting that the appeal is frivolous and following the procedure suggested in Matter of Gamboa, 

Interim Decision No. 2176 (BIA,1972), has promptly forwarded the 

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records without delaying to transcribe the hearing. In an accompanying memorandum, he has set forth the basis for his conclusion that the appeal can be adequately considered without a 

transcript. We are satisfied from the materials before us that we 

do not need's transcript to adjudicate this appeal. 

Two grounds for appeal are set forth in the notice of appeal. The 

first is that the respondents have a minor child born in the United 

States whose constitutionally-guaranteed rights to parental care 

would be violated if the respondents are required to depart. The 

short answer is that whatever rights the child may have under 

the Constitution do nut authorize the respondents to remain here 

in violation of the immigration laws. The respondents have it 

within their own power to avoid the alleged hardship that would 

befall the child on separation by taking the child with them when 

they depart. 

The second ground of appeal, charging that the statutory distinction between natives of the Eastern and Western Hemispheres 

in visa allocations violates constitutional limitations, is beyond our 

power to adjudicate, Matter of Chavarri-Alva, Interim Decision No. 

2188(BIA, 1973). 

One further item should be mentioned. The notice of appeal was 

filed without prepayment of the required fee. Instead, counsel 

submitted the respondents' joint affidavit to prosecute the appeal 

without prepayment of fee under 8 CFR 3.3(b). The affidavit is nn 

what appears to be a printed form, with filled-in blanks stating the 

. names of the respondents, the date of the order appealed from, the 

date of the jurat and the name of the notary. All that appears 

with respect to the respondents' inability to pay the prescribed fee 

is the conclusory printed statement that, "Because of my poverty I 

am unable to pay the required fee." 

In his memorandum transmitting the record to this Board, the 

Acting District Director has questioned the bona fides of the 

affidavit, alleging that information in the Service's administrative 

file reflects that the male respondent is employed at a weekly 

salary of $150.1We thereupon wrote counsel, requesting further 

details as to the respondents' alleged inability to pay, including the 

amounts they have paid (or obligated themselves to pay) for 

representation during the deportation proceedings and on this 

appeal. The requested details have not been supplied. Instead, 

counsel has paid the fee. 

Under 8 CFR 3.3(b), the certification as to the good faith of the application 

should have been made by the immigration judge, since his is the decision from 

which the respondents have appealed. In view of the fact that the fee has now 

been paid, this deviation from the regulation is of no consequence. 

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We call attention to this development because we wish to 

emphasize the fact that we rely in a large measure on the 

professional integrity of counsel in assessing their forwarded 

requests for leave to proceed in forma pauperis. The salutary 

provisions of 8 CFR 3.3(b) were designed to preserve the rights of 

persons unable to afford the customary filing fees. Ordinarily, we 

receive such , requests from attorneys or others who represent the 

alien without fee for their professional services. An attorney 

representing an alien who can afford to pay him substantial fee 

should not represent to this Board, explicitly or tacitly, that his 

client is unable to pay the modest filing fee unless he is satisfied 

that the application is made in good faith. And if he is so satisfied, 

he should disclose to this Board sufficient details so that we may 

properly assess the claim of poverty. An attorney who lightly files 

such an affidavit in the hope of augmenting his return from the 

case by the amount of the filing fee, and then ultimately pays the 

fee rather than divulge further details, not only involves the case 

in unnecessary delay; he also opens the door to speculation as to 

his professional ethics. 

ORDER: The appeal is dismissed. 

Further ordered: Pursuant to the immigration j udge's order, 

the respondents are permitted to depart from the United States 

voluntarily within 31 days from the date of this order or any 

extension beyond that time as may be granted by the District 

Director; and in the event of failure so to depart, the respondents 

shall be deported as provided in the immigration judge's order. 

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