Matter of Lennon
| Decision Date | 10 July 1974 |
| Docket Number | A-17595321,Interim Decision Number 2304 |
| Citation | 15 I&N Dec. 9 |
| Parties | MATTER OF LENNON In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent is a male alien who is a native and citizen of the United Kingdom. In 1971 he applied for a nonimmigrant visa and was found by a consular officer to be ineligible for such a visa under section 212(a)(23) of the Immigration and Nationality Act because he had been convicted of possession of marihuana. However, he applied for and received a waiver of inadmissibility under section 212(d)(3)(A) of the Act, which permitted him to be temporarily admitted to the United States as a nonimmigrant.
The respondent entered the United States with his wife, a native and citizen of Japan, on August 13, 1971. They were authorized to remain until February 29, 1972, but they did not depart from the United States by that date. They received a letter from the district director, dated March 1, 1972, informing them that their authorized stay had expired, that the Service expected them to depart from the United States by March 15, 1972, and that failure to depart would result in the institution of deportation proceedings. On March 3, 1972, the respondents filed petitions for preferred immigration status under section 203(a)(3) of the Act.1
In a letter dated March 6, 1972, the district director informed the respondent and his wife that the privilege of voluntary departure from the United States had been revoked pursuant to 8 CFR 242.5(c) because the district director had learned that they had no intention of departing from the United States by March 15, 1972. Orders to show cause were issued on March 6, 1972 charging the respondent and his wife with being deportable under section 241(a)(2) of the Act for having remained in the United States after their authorized stay had expired on February 29, 1972. Superseding orders to show cause were issued the next day repeating the charge of remaining longer than authorized and adding a charge which alleged failure to comply with the conditions of nonimmigrant status under section 241(a)(9). The latter charge was not pursued further by the Service.
A deportation hearing was held. In a decision dated March 23, 1973, the immigration judge found (1) that the respondent and his wife were nonimmigrants who had stayed longer than authorized and were therefore deportable under section 241(a)(2) of the Act; (2) that the respondent's wife was statutorily eligible for adjustment of status under section 245 of the Act, and that this relief should be granted in the exercise of discretion; (3) that the respondent was statutorily ineligible for adjustment of status because he was inadmissible to the United States under section 212(a)(23); and (4) that the respondent was statutorily eligible for the privilege of voluntary departure and that he should be granted this privilege in lieu of deportation. The immigration judge ordered the respondent's wife's status adjusted to that of a permanent resident. He denied the respondent's application for adjustment of status and granted the respondent 60 days in which to depart voluntarily from the United States. An alternate order of deportation to England was entered.2 The respondent has appealed from that decision.
On appeal, counsel has submitted a motion that we defer the decision in this case pending the outcome of two court actions filed by the respondent in the United States District Court for the Southern District of New York. These suits involve three basic claims by the respondent.
Initially, the respondent is seeking pursuant to 5 U.S.C. 552(a)(3) to compel production by the Service of certain data regarding "nonpriority" cases.3 Counsel believes that the records relating to "nonpriority" cases may show that the normal practice of the District Director is not to institute deportation proceedings in circumstances similar to the respondent's, and that therefore the District Director abused his discretion by issuing an order to show cause in the present case.
Similar claims have been made that a discretionary Service policy, which permits certain deportable aliens who are beneficiaries of approved visa petitions to remain here until a visa becomes available, may confer an enforceable right to remain in the United States. Such claims have been consistently rejected. Vassiliou v. INS, 461 F.2d 1193 (C.A. 10, 1972); Spata v. INS, 442 F.2d 1013 (C.A. 2, 1971), cert. denied, 404 U.S. 857 (1971); Armstrong v. INS, 445 F.2d 1395 (C.A. 9, 1971); Bowes v. District Director, 443 F.2d 30 (C.A. 9, 1971); Manantan v. INS, 425 F.2d 693 (C.A. 7, 1970); Lumarque v. INS, Civil No. 71-1886 (C.A.7, June 12, 1972); Discaya v. INS, 339 F.Supp. 1034 (N.D.Ill.1972); Matter of Merced, 14 I. & N. Dec. 644 (BIA 1974); Matter of Gallares, 14 I. & N. Dec. 250 (BIA 1972); Matter of Geronimo, 13 I. & N. Dec. 680 (BIA 1971); Matter of Li, 13 I. & N. Dec. 629 (BIA 1970). We have held that the decision to issue an order to show cause is a matter solely within the scope of the district director's prosecutorial discretion. Matter of Merced, supra; Matter of Geronimo, supra; Matter of Gallares, supra; cf. Matter of Anaya, 14 I. & N. Dec. 488 (BIA 1973). Our function is not to review the district director's judgment in instituting deportation proceedings, but to determine whether the deportation charge is sustained by the requisite evidence. Since the information regarding "nonpriority" cases relates to the matter beyond our scope of inquiry, we see no reason to defer our decision pending the outcome of court litigation which could take years, as counsel has admitted.
The respondent is also seeking an order compelling the Attorney General and certain Service officials to perform their statutory duty under 18 U.S.C. 3504 to affirm or deny the occurrence of illegal acts allegedly committed against the respondent, including wiretap and electronic surveillance. In addition, a hearing is requested pursuant to 18 U.S.C. 3504 to determine whether, and to what extent, unlawful acts have influenced the determinations made by the Service in the respondent's case. The respondent's request for an order enjoining deportation proceedings pending the outcome of his court actions was denied by a judge of the United States District Court for the Southern District of New York in a decision dated May 1, 1974.
Counsel claims that a court is the only forum in which evidentiary hearings under 18 U.S.C. 3504 can be conducted. We reject this contention. By its very terms, 18 U.S.C. 3504 is applicable to administrative hearings, and motions to suppress evidence have heretofore been made and adjudicated in deportation proceedings before immigration judges. See Matter of Au, Yim and Lam, 13 I. & N., Dec. 294 (BIA 1969), aff'd, Au Yi Lau v. INS, 445 F.2d 217 (D.C.Cir., 1971), cert. denied, 404 U.S. 864 (1971); Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971); Matter of Perez-Lopez, 14 I. & N. Dec. 79 (BIA 1972).
Counsel did not present his motion under section 3504 at the hearing before the immigration judge. In an appropriate case, we can remand the proceedings to the immigration judge for a hearing on a motion under section 3504. Before we remand, however, we must be satisfied that a useful purpose would be served by such a remand, and that there was a valid reason why the motion was not presented to the immigration judge at the time of the hearing.
It is unclear exactly how much evidence of surveillance must be presented for a...
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