Matter of Cruz, Interim Decision #2638
| Decision Date | 05 August 1977 |
| Docket Number | Interim Decision #2638,A-20893002. |
| Parties | MATTER OF CRUZ In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(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 brief 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 Service's memoranda and representations filed in support of the appeal. See Matter of Gibson, Interim Decision 2541 (BIA 1976).
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 be remanded.
We are unable to reach the merits of the appeal due to several 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 case 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...
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