Matter of Holani, Interim Decision Number 2804

• Decision Date: 10 July 1980
• Docket Number: A-22907478,Interim Decision Number 2804
• Parties: MATTER OF HOLANI In Exclusion Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 426

MATTER OF HOLANI

In Exclusion Proceedings

Interim Decision Number 2804

A-22907478

Board of Immigration Appeals.

Decided by Board July 10, 1980

Since the immigration judge is primarily responsible for the physical aspects of the record on appeal, and in his judgment a transcript of the hearing was necessary in the case in view of the allegations on appeal, the transcription should have been furnished by the District Director and the case was remanded for completion of the record. Matter of Gibson, 16 I&N Dec. 58 (BIA 1976) reaffirmed.

EXCLUDABLE:

Order: Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)] —Immigrant—not in possession of valid immigrant visa

Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)]—Immigrant— not in possession of valid labor certification

Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Immigrant— visa obtained by willful misrepresentation of a material fact

ON BEHALF OF APPLICANT: H. Ralph Klemm, Esquire, 10 West Broadway, Suite 510, Salt Lake City, Utah 84101.

ON BEHALF OF SERVICE: Robert Godshall, District Director.

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members.

This case presents an appeal from a decision of the immigration judge ordering that the applicant be excluded and deported from the United States. His decision was based only upon the first of the three above-stated charges. The case will be remanded.

The applicant was ordered detained under the provisions of section 235(b) of the Immigration and Nationality Act, 8 U.S.C. 1225(b), as amended, for an exclusion hearing before the immigration judge on May 3, 1979. The latter's adverse decision then followed on June 7, 1979.

The applicant appealed on the ground that she should have been the subject of deportation rather than exclusion proceedings. It is contended that the decision of the immigration judge was not supported by substantial evidence in the administrative record. It is the position of the Service that "The instant appeal appears to be frivolous and merely an attempt to allow the applicant to remain in the United States for as long as possible."

The record file does not contain a transcript of the oral decision, but rather the immigration judge's hand-written hearing work sheet and memorandum of decision (Form I-167). The record before us, therefore, suffers a very serious deficiency. We note, however, that the immigration judge repeatedly attempted to have the District Director order that the record of proceedings in ...