Matter of Vizcarra-Delgadillo
| Decision Date | 06 November 1968 |
| Docket Number | Interim Decision Number 1917,A-14699637 |
| Citation | 13 I&N Dec. 51 |
| Parties | MATTER OF VIZCARRA-DELGADILLO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal by the District Director of the Immigration and Naturalization Service from an order of the special inquiry officer denying the Service's unopposed motion to terminate the deportation proceedings.
The record before us reflects the following undisputed facts: The respondent is an alien, a native and citizen of Mexico, who was admitted to the United States for permanent residence on September 18, 1965. On August 9, 1966, in the United States District Court for the Northern District of California, he was convicted on his plea of guilty to a charge of aiding and abetting the alteration and possession of a false immigration document, in violation of 18 U.S.C. 1546 and 2. Deportation proceedings were started against respondent, charging that because of his conviction he was deportable under section 241(a)(5) of the Act. At a hearing on October 13, 1966, respondent through counsel conceded his deportability as charged and a deportation order was entered which became administratively final on respondent's waiver of his right to appeal.
On October 18, 1968, the District Director filed a motion requesting the special inquiry officer to terminate the proceeding under 8 CFR 242.7 on the ground that the deportation proceeding had been improvidently begun. The motion recited that on October 31, 1966, the respondent had filed a motion in the District Court to set aside his conviction; that the District Court had denied the motion; that on appeal the United States Court of Appeals for the Ninth Circuit had affirmed the judgment below; and that respondent had filed a petition for a writ of certiorari which was then pending before the Supreme Court. The motion stated no other facts which might indicate why the District Director had concluded that the deportation proceedings had been improvidently begun. Counsel for respondent stated that they had no objection to the motion and they filed no response to it.
The special inquiry officer denied the motion. In a decision dated October 28, 1968, he concluded that he lacked power under 8 CFR 242.7 to entertain such a motion after entry of a deportation order; and that, in any event, even if he had jurisdiction he would deny the motion because it failed to contain a reasonable explanation for the District Director's belief that the proceeding had been improvidently begun. It is this decision of the special inquiry officer which is before us on appeal.
In a letter to this Board dated October 30, 1968, joining in the appeal, counsel for the respondent point out that the only avenue of relief from deportation available to him appears to be the vacating of the conviction underlying the deportation order; and they state they have agreed to dismiss their pending certiorari petition if the deportation proceedings are terminated. In addition to the foregoing information which was not before the special inquiry officer, we have also considered the facts brought out in the reported opinion in respondent's court proceedings, Vizcarra-Delgadillo v. United States, 395 F.2d 70 (9th Cir.1968), which were apparently not called to the special inquiry officer's attention.
We think that the special inquiry officer did not lack power to terminate the deportation proceeding, if that course was otherwise indicated, merely because an administratively final deportation order had already been entered. Even though the posture of the case did not fit neatly within any of the patterns formulated in 8 CFR 242.7, the administrative process is sufficiently malleable to warrant recourse to other sources of authority. The administrative power to terminate deportation proceedings in appropriate cases existed even before 8 CFR 242.7 was promulgated.1 That regulation must be viewed as an extension of such power, rather than as a limitation upon it. Even after a final deportation order has been entered, the deportation proceedings may be reopened for proper cause, 8 CFR 103.5 and 242.22, and the proceedings can then be terminated in appropriate cases. We shall consider the District Director's motion as if it had been filed under the regulations last cited.
This raises the question, implicit in the special inquiry officer's decision, whether there is authority on the part of any one to terminate a deportation proceeding as "improvidently begun," once a final deportation order has been entered. We think there is.
Section 241(a) of the Act sets up numerous grounds for the expulsion of aliens in the United States and section 242(b) prescribes the procedure for determining...
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