RIVA

12 I. & N. Dec. 646

• Court: Board of Immigration Appeals
• Decided: July 1, 1968
• Docket: 1842
• Status: Published

Opinion

Interim Decision #1842

MATErat OF R1VA

In Deportation Proceedings

A-11239287 O Decided by Board March, 4,1968 The refusal of the special inquiry ellicor to adjudiente in fleportation proceed- ings in the case of respondent, who is deportable as a remained longer non- immigrant, the question of respondent's inadmissibility under section 212 (a) (22) of the Immigration and Nationality Act should he return to this coun- try, was proper since such a determination was neither germane to the issue of his deportability nor to his eligibility for discretionary relief. ONABGE: Order: Act of 1052—Section 241(a) (2) (8 1251 (a) (2)3 —Nonimmigrant representative of foreign information media—remained longer. ON BEHALF of RESPONDENT: ON BEHALF Or SERVICE: Elmer Fried, Esquire Thomas W. Winnerman 510 Madison Avenue Trial Attorney New York, New York 10022 (Brief filed)

Respondent, who conceded deportability on the charge in the order to show cause, applied only for voluntary departure, and was granted that relief, appeals from the refusal of the special inquiry officer to ad- judicate, in these proceedings, the question of whether he is excludable under section 212(a) (22) of the Immigration and Nationality Act. The appeal will be dismissed. Respondent is a 26-year-old married male alien, a native and citizen of Peru. The relevant facts are set forth with particularity in the deci- sion of the special inquiry officer and need not be repeated here. It is sufficient to note that from 1956 to the present, respondent has been in and out of the United States with at least four different visas. He has been here as a visitor, a student, a representative of foreign information media, and twice was admitted for permanent residence. He twice gave up his permanent resident status for the admitted purpose of avoiding service in the United States Armed Services. His testimony is that his reason for the various status changes he made was also to avoid mill-

646 Interim Decision #1842 tary service, without violating any criminal statutes of the United States. The basis for such actions was his alleged intention, at all times, to remain.in this country only temporarily, eventually to return to his native Peru. Now 26 years old and married to an. American citizen, respondent has apparently decided that be would like to settle, hers permanently., As a native of a Western Hemispheie country, he is ineligible to apply for adjustment to permanent resident status in these proceedings, or in any proceedings in the,United Stites. It will benecesiary for him to leave this country and seek an. immigrant visa at 4 00neigate abroad. Inasmuch as a determinatiOn of reepondent's, admits'sibility or ex- cludability under section 212(a) (22) is neither necessary nor relevant to the issues properly before the 'special inquiry officer in the instant proceedings, we believe the special inquiry ()facer properly refused to adjudicate this question. ,We hold further that he was -carp* in considering respondent's testimony as tohis conduct vii-a-vis military service, the,draft board, e tc., only in the context of its effect on. whether or not he was deserving of the discretionary relief he sought. It was his finding, which we see no reason to disturb, that in view of the total picture respondent's actions do not warrant a finding that he is ineligible for or unworthy of a grant of voluntary departure. Counsel, who neither argued nor briefed his position on appeal, stated in the Notice of Appeal: • • • where counsel urgently requests such a ruling to be made, [whether respondent left the United States with the intent to avoid or evade military service and would thereby be inadmissible under section 212(a) (22)) as a mat- ter of discretion the Special Inquiry Officer—assorolue he has jurisdiction to make such ruling and assuming it would be germane to the issue—ought in the exercise of discretion to rule upon it; and that therefore it was in error, in the instant case, for the Special Inquiry Officer to decline to rule upon the issue no tendered 4' * 4%1

We cannot agree with the position taken by counsel. First, the question was not germane to the issue before the special inquiry of- ficer; whether or not respondent was deportable for having over- stayed his authorized period of stay as a representative of foreign information media is in no way related to whether or not he may be

s Of interest is the case of Licea Gomez v. Paliod, 193 F. Stipp. 577, decided -

October 11, 1960, in which the District Court, Northern District of Illinois, upheld the refusal of the special inquiry officer, affirmed by the Board, to rule iu exclusion proceedings on whether the applicant was excludable under section 212(a) (22) ; the alien had been refused a visa by the Consul on the basis of that section, but was charged by the Government with being excludable only because he was not in possession of a visa. The Court held the special inquiry officer need go no further than that charge.

647 Interim Decision #1842 considered emokulable as one who left this country to avoid military service in time of war or national emergency. Neither is a decision as to whether ha would be excludable for such conduct, if it is estab- lished. that he has been guilty of it, relevant to his eligibility for vol- untary departure. On this basis, such a decision by the special inquiry officer would be a cluttering of the record with &ohm. Further, the making of such a decision by the special inquiry officer would have been a purely academic exercise, for the Consul before whom respond- ent must make his application for a visa would be in no way bound by such a ruling of the special inquiry officer; see sections 104(a) and 221(g) of the Immigration and Nationality Act. The ruling requested by counsel was not germane to the issues herein and any decision or holding by the special inquiry officer would settle no legal question and be dispositive of no issue. There was no error in his refusal to rule on an extraneous question. We, therefore, hold the appeal from that decision to be without sound legal basis. ORDER: It is ordered that the appeal be and the same is hereby dismissed.