Interim Decision nOtio 

MATTER OF CRUZ 

In Exclusion Proceedings 

A-20893002 

Decided by Board June 7, 1977, as,amended August 5, 1977 

(1) 8 CFR 3.5 requires that the entire record of the proceeding shall be forwarded to the 

Board on appeal. A cassette recording of the exclusion hearing is not suitable for 

appellate review of the case. The regulation requires submission of a written transcript 

of any hearing held before an immigration judge. 

(2) Under 8 CFR 103.3(a) a copy of all briefs, memoranda, and representations filed by the 

Service in connection with an appeal to the Board must be served on the affected party -

and these papers must be signed and dated. In this record there is no evidence that 

these papers were served on the-applicant. 

(3) 8 CFR 236.5(c) requires that the applicant shall be notified in writing when an appeal is 

taken by the District Director from an adverse order of the immigration judge in an 

exclusion case. Since the record does not contain a copy of the notice, it is assumed the 

applicant never received the notice as required by this regulation. 

(4) Since filing of a. brief, including a reply brief, is discretionary, a decision may be 

rendered without a brief, and should be, where as here, the Service's reply brier was not 

filed within a reasonable time. 

(5) The record will be remanded to the Immigration judge to correct the defects in the 

record and afford applicant an opportunity to respond to the Seririce's memoranda and 

representations filed in support of the appeal. See Matter of GibsoniInterim Decision 

2541 (BIA 1976). 

EXCLUDABLE: 

Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(x)(20)1—Immigrant—no valid immigrant 

visa 

ON BEHALF OF .APPLICANT: ON BEHALF OF SERVICE: 

David A. Kattan, Esquire Leonard Leopold" 

419 Gravier Street Trial Attorney 

New Orleans, Louisiana 70130 

BY: Milliollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members 

This is an appeal from an order of an immigration judge, dated 

February 9, 1977, finding the applicant properly classifiable as the stepchild of a United States citizen and ordering his admission into the 

United States as a permanent resident. The Service has appealed from 

this order. The record will hp remanded. 

We are unable to reach the merits of the appeal due to several 

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deficiencies in the record. First, there is no transcript of the exclusion 

hearing held on March 6, 1975, which is referred to by the immigration 

judge in his order. The regulations require that the entire record of 

proceedings shall be forwarded to the Board on appeal. 8 C.F.R. 3.5. In 

an exclusion proceeding, the record in the ease consists of the hearing 

before the immigration judge, including the testimony and exhibits, the 

immigration judge's decision, and all written orders, motions, appeals, 

and other papers filed in the proceeding. 8 C.F.R. 236.2(e). The record 

before us contains a cassette recording, presumably of the exclusion 

hearing, but this method of preserving testimony is unsuitable for 

appellate review of the case. The regulations clearly contemplate that 

the record on appeal include a written transcript of any hearing held 

before an immigration judge. 

Second, there is no evidence in the record indicating that a copy of a 

Service memorandum in support of the appeal was ever served on the 

opposing party. The memorandum in the record before us not only lacks 

a certificate of service, but it is also unsigned and undated. A copy of all 

briefs, memoranda, and representations filed by the Service in connection with an appeal to the Board must be served on the affected party. 8 

C.F.R. 103.3(9). Obviously, these papers must also be signed and dated. 

Third, it appears that the regulation pertaining to notice of a Service 

appeal from an adverse order in an exclusion hearing has not been 

complied with. 8 C.F.R. 236.5(c) requires that the "applicant shall be 

notified in writing when an appeal is taken by the District Director and 

advised that he will be allowed 5 days from receipt of notification in 

which to submit written representations for transmittal to the Board 

with the record in the case." Since the record does not contain a copy of 

this notice, we assume that the applicant has not received written notice 

of a Service appeal in accordance with this regulation. 

The immigration judge and the District Director have a concurrent 

obligation to see that the record is complete and complies with the 

applicable regulations before it is forwarded to us on appeal. Failure to 

insure that this is done results in delay and inconvenience, at the least, 

and a possible miscarriage of justice if these deficiencies are overlooked. 

f attar of Gibson, Interim Decision 2541 (BIA 1976). 

We note that there has already been an inordinate delay in this case. 

The decision in this ease was not rendered until almost 2 years after 

the exclusion hearing. The immigration judge attributes the delay to the 

failure of the Service to file a reply brief to the one submitted by the 

applicant after the exclusion hearing. (Decision of the immigration 

Judge, p. 7.) However, filing of briefs, including reply briefs is clearly 

discretionary; obviously a decision can be rendered without a brief and 

Qlearly should be where, as in this case, the Service's reply brief was not 

filed within a reasonable time. 

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111LC11111 

Accordingly, we will remand the record to the immigration judge so 

that the defects in the record can be corrected. The applicant should be 

afforded an opportunity to submit a brief in reply to the Service 

memorandum in support of the appeal and other evidence before the 

record is returned to the Board for a determination of the merits of this 

appeal. 

ORDER: The record is remanded to the immigration judge. 

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