E-057357
Decided by the Board October 21, 1953
Special inquiry officer — Authority to consider evidence outside of the record-issue of deportability, section 242 (b) of the Immigration and Nationality Act — issue of discretionary relief, 8 C.F.R. 244.3.
Section 242 (b) of the Immigration and Nationality Act provides solely that the issue of deportability shall be determined by a special inquiry officer only on evidence of record and this section makes no reference to discretionary relief which is covered by section 244 of the act. The use of confidential information in considering the issue of discretionary relief is sanctioned by 8 C.F.R. 244.3.
CHARGE:
Warrant: Act of 1952 — failed to comply with conditions of status-seaman.
BEFORE THE BOARD
Discussion: Appeal has been taken to this Board from an order entered by the special inquiry officer on March 20, 1953, directing respondent's deportation from the United States on the charge stated above. Counsel excepts to the order on the grounds that respondent is not deportable as a matter of law on the charge stated in the warrant of arrest and to the denial of discretionary relief.
The respondent, a native and citizen of the Irish Republic, male, unmarried, 65 years of age, last entered the United States at the port of New Orleans, La., on July 16, 1952, at which time he was admitted as a nonimmigrant alien seaman under the provisions of section 3 (5) of the Immigration Act of 1924 for a period not to exceed 29 days. The respondent testified that subsequent to his last entry he has never been granted an extension of his temporary admission as a seaman. The evidence of record affirmatively establishes respondent's deportability on the above stated charge.
Counsel's exception with reference to deportability is based upon the contention that the saving clause of the 1952 act (sec. 405 (a)), enures to the benefit of respondent in that the regulations in effect at the time of respondent's entry (title 8, C.F.R. 120.21), requiring a seaman to depart within 29 days were not universally observed by the Immigration Service and, therefore, this practice was continued in force and effect by section 405 (a) ( supra). Counsel also contends that respondent has not failed to maintain status as charged under section 241 (a) (9) of the 1952 act because respondent was in the status of a seaman being allowed to stay in the United States pending reshipment and the condition relative to 29 days was not a requirement of the 1924 act but only a regulation imposed by the Attorney General.
We find no error in the conclusion reached by the special inquiry officer that respondent is deportable under section 241 (a) (9) of the 1952 act. The warrant of arrest in this case was issued on February 4, 1953, subsequent to the effective date of the Immigration and Nationality Act of 1952. Subsection 9 of section 241 (a) of this act contains in substance the "remained longer" charge formerly set forth in section 14 of the 1924 act. Section 241 (a) (9) of the 1952 act is retrospective by its very terms and applies regardless of whether entry was made prior to or subsequent to the effective date of the act.
The respondent has been found by the special inquiry officer to be statutorily eligible for the grant of voluntary departure in lieu of deportation. Voluntary departure has been denied as a matter of administrative discretion on the basis of confidential information, not of record, the disclosure of which would be prejudicial to the best interests of the United States. The substance of counsel's objection to the denial of discretionary relief on this basis is that the special inquiry officer's action amounts to violation of due process of law secured to respondent by the fifth amendment to the Constitution. Counsel also urges that under the 1952 act a decision by a special inquiry officer must be based upon evidence of record and precludes the use of evidence outside of the record.
We are aware of the authority cited by counsel, in connection with use of confidential information not of record. The authority cited, however, is concerned with immigration proceedings under statutes enacted prior to the Immigration and Nationality Act of 1952. With respect to former statutes the Attorney General has ruled in Matter of A----, 3 IN Dec. 714, A-6178382, December 17, 1949, that confidential information will be scrutinized when exercising his discretion. The issue of discretionary relief in this case, however, arises under the 1952 act, and under section 244.3 of title 8 C.F.R., effective December 24, 1952 ( 17 F.R., 11469, December 19, 1952), the use of confidential information is sanctioned when exercising discretion. The argument advanced by counsel relative to the authority of the special inquiry officer to consider evidence outside of the record fails to distinguish between an issue of deportability and an issue of discretionary relief. Section 242 (b) of the 1952 act provides solely that the issue of deportability shall be determined by a special inquiry officer only on evidence of record. It makes no reference to discretionary relief. This subject is covered by section 244 of the 1952 Act.
Athanasopolous v. Reid, 110 F. Supp. 200 (D.C., D.C., 1953); Alexiou v. McGrath, 101 F. Supp. 421 (D.C., D.C., 1951).
Another argument advanced by counsel concerns the failure of the special inquiry officer to comply with sections 5, 7, and 8 of the Administrative Procedure Act. Section 242 (b) of the Immigration and Nationality Act lays down the "sole and exclusive" procedure for determining the deportability of an alien, and a hearing held in conformity therewith is within the pattern and meets the standards of the Administrative Procedure Act, even though section 403 (a) of the same act repealed the provision of law exempting the Immigration and Naturalization Service from compliance with section 5, 7, and 8 of the Administrative Procedure Act. Matter of M----, A-2669541, Int. Dec. No. 442, B.I.A., June 1, 1953.
After careful consideration of the record before us the action taken by the special inquiry officer in his opinion of March 20, 1953, is hereby affirmed. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed.