SOLIS-DAVILA

13 I. & N. Dec. 694

• Court: Board of Immigration Appeals
• Decided: July 1, 1971
• Docket: 2081
• Status: Published

Opinion

Interim Decision #2081

MATTER OF SOLIS-DAVILA

In Deportation Proceedings

A-10816558

Decided by Board April 28, 1971

The departure foreign of an alien while an order of deportation was out- standing effectively executed that order notwithstanding a petition for re- view of the deportation order under section 106 of the Immigration and Nationality Act, as amended, was pending at the time of departure.

CHARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))—An alien who at time of entry was excludable as one who had been arrested and deported, consent to apply or reapply for admission not having been granted by the proper authority under section 212 (a) (17) of the Act.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Joseph J. Rey, Esquire William F. Weinert 543 Magoffin Avenue Trial Attorney El Paso, Texas 79901

Respondent, through. counsel, appeals from an adverse order of the special inquiry officer dated February 16, 1971, directing de- portation to Mexico on the charge set forth above. Respondent was first ordered deported by a decision of the spe- cial inquiry officer dated May 25, 1970, on the ground that he had entered the United States without inspection. Section 241 (a) (2) of the Immigration and Nationality Act (8 U.S.C. 1251 (a) (2)). On appeal, this Board entered an order dated June 18, 1970 dismissing the appeal. The following month, respondent filed a petition for review of that order in the United States Court of Appeals for the Fifth Circuit. Respondent was thereafter located in Mexico on or about September 11, 1970, allegedly preparing to smuggle aliens into the United States. He reentered the United States and deportation proceedings were again instituted and re- spondent was found deportable on the charge set forth above. Re-

S94 Interim Decision #2081 spondent was also convicted on September 25, 1970 in the United States District Court in El Paso, Texas. He was adjudged guilty for having committed the offense of having unlawfully trans- ported and removed aliens who had not been duly admitted by an immigration officer of the United States and were not lawfully entitled to enter and to reside within the United States, in viola- tion of Title 8, United States Code, section 1324 (a) (2). Respond- ent was sentenced to serve a term of imprisonment for a period of six months and placed on probation for a period of five years. (Ex. 3). Counsel contends that respondent is not deportable because of his departure foreign while the Board's order of June 18, 1970 was in effect and that his subsequent entry does not support an order of deportation. Counsel further contends that there was no final order of deportation with respect to the original proceed- ings, in that no order had been entered by the Court of Appeals for the Fifth Circuit prior to his departure. It is clear the respondent departed while the Board's order of June 18, 1970 was in effect and under review in the Court of Ap- peals pursuant to section 106(a) of the Immigration and Nation- ality Act. As a result, enforced deportation was precluded by sec- tion 106(a) (3) of the Immigration and Nationality Act. The fact is that the filing of the petition for review did not affect the de- portation order under review and there is no judgment of the Court of Appeals affecting the Board's order. Accordingly, the al- ien's departure while the order of deportation was outstanding effectively executed that order. Section 101 (g) , Immigration and Nationality Act. Counsel presented no authority in support of his position that respondent's subsequent entry does not support an order of de- portation. We affirm the order of the special inquiry officer dated February 16, 1971. We find counsel's other contention to the effect that respondent was not given an opportunity to crossexamine the witnesses without merit. ORDER: It is ordered that the appeal be dismissed.