RANGEL-CANTU

12 I. & N. Dec. 73

• Court: Board of Immigration Appeals
• Decided: July 1, 1967
• Docket: 1695
• Status: Published

Opinion

Interim Decision #1695

MATIER or RANGEL-CANrII

In Exclusion Proceedings A-8393859 Decided by Board February 2, 1927 Right of appeal lies with the Service from a decision of a special inquiry of- ficer UJI a motion to reopen an exclusion proceeding. EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. i182(a) (20.))—No valid immigrant visa. ON Brateze or APPLICANT: _ON =tam or Osumi: Carlos Castillon, Esquire B. A.. Vielhaber Laredo National Bank Bldg. . Appellate Trial Attorney Laredo, texas WOO

The special inquiry officer certified his order reopening exclusion proceedings which had terminated in an order of exclusion on Decem- her,fir1204.. The-Seraice contends that the special inquiry officer was without the power to•reopen the case. • .Applicant, .(1 42-year-old married male, a native and citizen of Mexico, who was admitted for permanent residence on November 8, 1952 and either resided in the United States or was a commuter until 186,2, when, he wad insured and returned•to klexico• to recuperate. He, was exellidecl in May 1964. when he applied to reenter. He took no appeal. On August 25,1066 the applicant secured an attorney .and filed a motion for reopening of , his application for admission•as a•return-: lug lawful reaident. Igkis his purpose atthe reopened hearing to estab- lish that he had been physically disabled during the period of his absence and that he •was now physically able and willing to seek re- employment in the United States. The motion was opposed by the trial attorney on the ground that the .applicant's exclusion could not be reconsidered because he hut failed to show a gross miscarriage of justic.0 or a deprivation of due process. By later brief and at oral argument the Service contended that the special inquiry officer did not have the authority to open an

73 Interim Decision #1695 exclusion proceeding after a final order of exclusion and deportation had been executed. On October 13, 1966 the special inquiry officer ordered proceedings reopened. He ruled that he had the authority to reopen the exclusion proceeding without finding that there had been a gross miscarrage of justice. He pointed out that since an. alien unlawfully in the United States could file a motion to reopen after he had been ordered deported'it would be inequitable if a lawful resident seeking to return in a. lawful manner could not file such a motion after he had been excluded. He believes that the delegation of the Attorney General's authority to conduct exclusion and expulsion proceedings which was made to the special inquiry officer (8 OFR 103.1(a)) gives him the power to reopen an exclusion proceeding as well as an expulsion proceeding. We do not think the administrative authorities lose the right to reopen an exclusion case because of the passage of time (see 9 F.R. 5767 (1944)). The passage of tune is only one factor which must be considered in deciding whether a case should"be reopened. We need not go into this further because in the instant case, a simple method of obtaining a reconsideration of the exclusion proceeding exists. The applicant may make a new application for admission. The Service asks for a ruling on the special inquiry officer's holding that the Service has no appeal from his decision reopening the exclu- sion prodeeding. Regulations must be read , to afford fair, simpler and speedy methods for doing the work assigned by law. In an exclusion case, it -is the responsibility, of the District'Directrir; through an ap- peal,.to present his opinion that an applicant for admission should be excluded. To deny the Service an appeal on a motion to reopen an exclusion proceeding could mean that the proceeding could be held for reasons and purposes the Board would not sustain on the Service' appeal. A review of the special inquiry officer's decision on a motion to reopen, permitting the Service to present its point of view, could thus avoid delay, work and expense to both the applicant and the Service. We conclude that the Service has the right to appeal a special inquiry officer's order on a motion to reopen an exclusion case. ORDER: It is ordered. that the special inquiry officer's order re- opening proceedings be and the same is hereby withdrawn. It is further ordered that the applicant's motion for reopening of proceedings be and the same is hereby denied •without prejudice to his reapplication for admission. • •