Board of Immigration Appeals

The Board of Immigration Appeals never has been astatutory 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 district director forwards the entire record of the proceeding to the Board.

(4) Representation by counsel. In all proceedings before the Board the affected person is entitled to representation 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 appeal 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 statutes 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 challenges 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 considered 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 hearing.

When its consideration is completed the Board issues awritten decision announcing its conclusions. After discussing the case the Board declares that the appeal is dis
missed or sustained or that some other disposition is tobe 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 Attorney 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 itsown motion or on application of a party to the proceeding.
The motion to reconsider questions the Board’s decision foralleged errors in appraising the facts and the law.

The motion to reopen seeks fresh consideration on the basis ofnewly discovered facts or a change in circumstances since the hearing, or solicits an opportunity to apply for discretionary relief. Motions to reopen in deportation proceedings 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 reopenfor 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 deportation case the alien’s departure from tlife United States ends his right to make a motion to reopen or reconsider 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.30However, the motion to reopen or reconsider cannot be utilized to permit a belated appeal from the originaldecision.

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

(3) Consideration and disposition. The grant of reopening or reconsideration is a matter of discretion.33 Moreover, 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 aregiven important responsibilities in the enforcement of the immigration laws. These chiefly concern a preliminary
screening and the issuance of documents in foreign countries 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 Attorney 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, exceptfor 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 AttorneyGeneral in waiving documentary and other requirementsfor entry in certain contingencies.

The Act of 1952 created a new division within the Department 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 administration of the immigration laws. Within the Bureau are the Office of Passport Services and the Office of Visa Services, 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. UnitedStates passports are issued in foreign countries by diplomatic and consular officers of the United States.