Immigration

Board of Immigration Appeals

By December 6, 2016 No Comments

The Board of Immigration Appeals never has been a
statutory body. It exists only by virtue of the Attorney
General regulations. The Attorney General has created
the Board and has fixed its powers. By the same token,
he can and does modify its powers and he could, if he
wished, abolish the Board. However, an unqualified and un
revoked delegation of authority may be binding on the
Attorney General.

Since 1939 the Board has been completely apart from
the Immigration and Naturalization Service. It is a separate
body in the Department of Justice, responsible only
to the Attorney General, which reviews the determinations
of immigration officers. Under the present allocation of
responsibilities the Board is divorced from the enforce
ment apparatus and it is a quasi-judicial body with exclu-
sively appellate functions.

Unless modified or overruled by the Board or the Attorney
General, decisions of the Board of Immigration
Appeals are binding on all officers and employees of the
Service. The Board designates selected decisions
As precedents to be followed in all future cases.

At present the Board consists of a chairman and four
Other members, together with an executive assistant-chief
Examiner who has authority to act as an alternate member.4
It is located in Washington, D.C. and holds hearings only
In that city.

The Board is authorized, with the approval of the at
Attorney General, to promulgate rules governing proceedings
Before it. The Board also is given original jurisdiction to
recognize social agencies for the purpose of enabling them
to accredit representatives authorized to practice13 and to
regulate the conduct of, and disbar for cause, attorneys,
Accredited representatives, and other persons who appear
in a representative capacity before the Board or the Ser-
vice.

It also is given authority to review cases within
its appellate jurisdiction, as described below, certified to
it by the Commissioner, or any other duly authorized
officer of the Service, or the Board itself.6 The Board is
authorized to hear appeals from decisions of immigration
judges in exclusion and deportation cases, and decisions
of district directors denying visa petitions of relatives as
well as other types of determinations set forth in the
regulations.

Under present regulations the Board has no authority
to consider appeals from decisions of district directors
in passing on applications to waive the 2-year residence
requirement for exchange visitors,8 or to consider the
denial of an application for visa preference because of
occupational status,9 or to grant parole,10 or for a change
from one nonimmigrant status to another,11 or for extension
of temporary stay.

In passing on cases within its jurisdiction, the Board is
authorized to exercise any of the Attorney General’s au
thority and discretion appropriate and necessary to the
disposition of the case.13 The Board, and the immigration
judge, can grant discretionary benefits only if they are
appropriate and necessary for the complete disposition of
the case before them, and they are not authorized to grant
relief in other situations.

When a notice of appeal has been properly filed in a case
within the Board’s jurisdiction, all motions thereafter,
except for withdrawal of the appeal, must be addressed
to the Board.

(1) Notice of appeal. A person affected by a decision
who is entitled to appeal to the Board may do so by filing
within the specified times, a notice of appeal (Form I-290A),
in triplicate with the Service officer having administrative
jurisdiction over the case, usually the district director.

(2) Stay. Unless appeal is waived, there is an automatic
stay of the original decision until the time for appeal has
expired. Moreover the decision cannot be executed while
an appeal is pending or while the case is before the Board
by certification.17 However the filing of a motion for re
consideration does not stay execution of the decision unless
The Board or the district director grants a stay.

(3) Appeal record. When an appeal is taken the dis
trict director forwards the entire record of the proceeding
to the Board.

(4) Representation by counsel. In all proceedings be
fore the Board the affected person is entitled to representa
tion by counsel or other representative who is authorized
to practice before the Board. The Service also has an
official representative from the office of General Counsel,
who appears and presents arguments on its behalf.

(1) Oral argument. In any case before the Board on ap
peal or certification the privilege of oral argument will
be granted on request.

(2) Nature and scope of Board’s review. Within the
zone of authority conferred upon it the Board acts as the
arm of the Attorney General and can exercise his authority
and discretion to the extent necessary and appropriate for
the disposition of the case.

The Board can make its own independent determinations
on questions of fact and law, and on whether discretionary
relief should be granted. However, the Board will take
into account that the immigration judge is primarily the
trier of the facts with a better opportunity to assess
credibility, and ordinarily will not alter his factual deter
minations.

The Board’s decisions are subject to the judicial review
detailed in Chapter 8. But the Board does
not pass on challenges to the constitutionality of the stat
utes it administers, leaving all questions of constitution
ality to the courts.23 The Board also is bound by the At
torney General’s regulations, and will not pass on chal
lenges to their validity.

The Board hears no testimony and ordinarily limits its
review to matters developed in the record. However, in
some exceptional cases the Board has accepted and con
sidered additional affidavits or other documents. When
defects in proof or procedure are found, the Board may
remand the case to remedy the deficiencies.
While the Board apparently would be authorized to pass on matters,
e.g., grounds for exclusion or deportation, presented to
but not passed on by the immigration judge, fair play
ordinarily would preclude its consideration of grounds for
exclusion or deportation not even presented at the hear
ing.

When its consideration is completed the Board issues a
written decision announcing its conclusions. After discus
sing the case the Board declares that the appeal is dis
missed or sustained or that some other disposition is to
be made.

The Board’s decision closes the case administratively
unless the case is reviewed by the Attorney General. There
is no general right to have a case considered by the At
torney General, and review by him is infrequent.

(1) Nature. The regulations recognize the right of the
Board to reopen or reconsider its decisions, either on its
own motion or on application of a party to the proceeding.
The motion to reconsider questions the Board’s decision for
alleged errors in appraising the facts and the law.

The motion to reopen seeks fresh consideration on the basis of
newly discovered facts or a change in circumstances since
the hearing, or solicits an opportunity to apply for discre
tionary relief. Motions to reopen in deportation proceed
ings will not be granted unless it appears that the new
evidence is material and could not have been discovered
and presented at the former hearing.

Motions to reopen
for the purpose of applying for discretionary relief will not
be granted if the respondent had full opportunity to apply
for such relief at the former hearing unless the relief is
sought on the basis of subsequent circumstances. In a de
portation case the alien’s departure from tlife United
States ends his right to make a motion to reopen or re
consider the order, whether the departure occurs before
the motion is made or while it is pending.

When the case was last considered by the Board, a motion
to reopen or reconsider the order must be addressed to the
Board.29 However, if the affected party took no appeal
from the original order, he can address a motion to reopen
or reconsider to the officer making the original decision and
can appeal to the Board from a denial of his motion.30
However, the motion to reopen or reconsider cannot be
utilized to permit a belated appeal from the original
decision.

(2) Effect. The filing of a motion to reconsider or re
open does not automatically stay the execution of the
original decision. The decision can be executed unless a
stay of execution is granted by the Board or the district
director.

(3) Consideration and disposition. The grant of reopen
ing or reconsideration is a matter of discretion.33 More
over, there is no right to oral argument, which is granted
only when the Board deems it necessary or desirable.

The Secretary of State and his subordinate officers are
given important responsibilities in the enforcement of the
immigration laws. These chiefly concern a preliminary
screening and the issuance of documents in foreign coun
tries for persons seeking to come to the United States.

The Secretary of State has primary authority to
determine the nationality of a person not in the United
States.1 But on all questions of law arising out of the
immigration and nationality laws the rulings of the At
torney General are controlling.

The Secretary of State is granted specific authority to
supervise and direct the powers, duties, and functions of
consular and diplomatic officers of the United States, except
for the actions in issuing or denying visas.

Certain additional powers are specifically conferred on
the Secretary of State, such as the issuance of American
passports, and authority to act jointly with the Attorney
General in waiving documentary and other requirements
for entry in certain contingencies.

The Act of 1952 created a new division within the Depart
ment of State, now known as the Bureau of Consular
Affairs, now headed by an Assistant Secretary of State.
The Bureau supervises the work of consuls in the admin
istration of the immigration laws. Within the Bureau are
the Office of Passport Services and the Office of Visa Ser
vices, each headed by a Deputy Assistant Secretary.

The issuance of visas for aliens who seek to come to the
United States is the responsibility of American consuls.2
There are over 200 consular offices of the United States
located in foreign countries throughout the world. United
States passports are issued in foreign countries by diplo
matic and consular officers of the United States.

Francisco Hernandez

Author Francisco Hernandez

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