Matter of Manneh
| Decision Date | 08 July 1977 |
| Docket Number | Interim Decision #2598,A-20460984 |
| Citation | 16 I&N Dec. 272 |
| Parties | MATTER OF MANNEH In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) The immigration judge's authority in exclusion proceedings is contingent upon any limitations found elsewhere in the Act or regulations. With respect to the consideration of applications for adjustment of status filed under section 245 of the Immigration and Nationality Act, the immigration judge is only permitted to consider those made by an alien after he has been served with an order to show cause or warrant of arrest, in proceedings under section 242 of the Act. Any other alien seeking adjustment of status under section 245 must apply to the district director. See 8 C.F.R. 245.2(a)(1).
EXCLUDABLE:
Order: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)] —Immigrant—no visa
ON BEHALF OF APPLICANT: Richard D. Steel, Esquire 636 Public Ledger Building 6th & Chestnut Streets Philadelphia, Pennsylvania 19106
The applicant appeals from the immigration judge's decision in which he found that he lacked authority to consider the applicant's application for adjustment of status. The appeal will be dismissed.
This case was remanded to the immigration judge by order of the United States District Court (ED Pa. August 23, 1976) Civil Action No. 76-1903, for a determination of his authority to consider the application. The immigration judge concluded that he lacked authority. The applicant brought this appeal.
The applicant argues that immigration judges have authority to consider adjustment of status applications by virtue of the regulation which confers on them in the conduct of exclusion proceedings: that the authority which is "appropriate and necessary for the disposition of such cases," 8 C.F.R. 236.1. That regulation provides In determining cases referred for further inquiry as provided in section 235 of the Act, special inquiry officers shall have the powers and authority conferred upon them by the Act and this Chapter. Subject to any specific limitation prescribed by the Act and this chapter, special inquiry officers shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases.
Adjustment of status, he argues, is within the category of a disposition of the case which is "appropriate and necessary." He cites our decision of Matter of Ducret, Interim Decision 2483 (BIA 1976) in support of his argument.
In Matter of Ducret, supra, we found that the immigration judge by virtue of his authority to take such action "consistent with applicable provisions of law and regulation as may be appropriate to the disposition of the case" (8 C.F.R. 242.8(a)) possesses authority to grant nunc pro tunc permission to reapply for admission to an alien in deportation proceedings who is charged with deportation on the ground that he reentered after having been deported, without having first secured the permission of the Attorney General. The action found to be within the scope of that "appropriate to the disposition of the case" in Matter of Ducret, supra, was not subject to a specific limitation elsewhere in the Act or regulations, nor was it inconsistent with the Act or regulations.
In Matter of DeG----, 8 I. & N. Dec. 325 (BIA 1959, A.G. 1959), the Attorney General, discussing the scope of the Board's authority in exclusion proceedings encompassed by the phrase "such discretion and authority as is appropriate and necessary for the disposition of the case" held that the Board's authority over discretionary applications for relief is both subject to the limitations prescribed by the regulations and confined to the jurisdiction in which the Board is authorized to operate. DeG----, involved an application for relief under a different section than is sought here but like this case, it involved Service regulations which provided that the application be submitted to the District Director. The Attorney General's holding in that case is applicable here.
The immigration judge's authority in exclusion proceeding granted by 8 C.F.R. 236.1 is as quoted above:
"[s]ubject to any specific limitation prescribed by the Act and this chapter."
We find that in this case, unlike the situation in Ducret, the authority sought to be brought within the scope of the immigration judge's authority is specifically limited elsewhere in the regulations to the...
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