E-25104
Decided by the Board November 13, 1953
Appeal from special inquiry officer's decision — 8 C.F.R. 6.11 and 242.61 (e) — Authority of special inquiry officer to reopen a deportation hearing solely to permit the belated filing of an appeal.
Although the special inquiry officer may, at his own instance, reopen a case for the introduction of additional evidence, or to reconsider a decision previously made, there is no sanction, regardless of how worthy his motives may be, for him to reopen a case upon his own motion for the sole purpose of permitting a belated appeal to be taken. He may, of course, entertain a motion properly made by the alien or his attorney under 8 C.F.R. 8.1 and 8.11, to reopen or reconsider, and grant or deny such motion, in which case an appeal from his order may be taken in accordance with the applicable regulations. (See Matter of G---- Z----, E-065122, June 12, 1953, Int. Dec. No. 459, re timeliness of appeal.)
CHARGES:
Warrant: Act of 1917 — Epileptic at time of entry.
Lodged: Act of 1924 — Visa — Procured by fraud or misrepresentation.
BEFORE THE BOARD
Discussion: This case comes forward through an order of the special inquiry officer reopening the case to permit this Board to consider an appeal which was not timely taken. The issue relates to the authority of such special inquiry officer, in a case where his decision has become final, to order the case reopened to permit the belated filing of an appeal.
On July 27, 1953, the special inquiry officer entered a written decision finding the respondent deportable on the lodged charge, denying her application for suspension of deportation, but granting her the privilege of voluntary departure with a further provision for her deportation upon her failure to depart as required. On the same day a copy of this decision was transmitted by registered letter to the respondent advising her that the decision would become final unless an appeal was taken to the Board of Immigration Appeals and a notice of appeal filed within 10 days (not including Sundays and holidays) after receipt of the notice. No appeal having been taken, on August 17, 1953, the respondent was advised to effect voluntary departure within 60 days. On September 3, 1953, a notice of appearance was filed in respondent's behalf by her present counsel, who simultaneously filed a notice of appeal on form I-290A. On September 16, 1953, counsel filed a brief in support of such appeal.
On the same day the special inquiry officer ordered the hearing reopened for the purpose of filing the notice of appeal and brief to be considered by this Board. His action was taken because he felt that the respondent was extremely disturbed at the hearing and was apparently under the erroneous impression that the case would automatically go forward for review. Since she was not represented by counsel until after her time to appeal had expired, he felt that in the interest of justice she should be given a further opportunity to take an appeal.
We have previously held that under the applicable regulations (8 C.F.R. 6.11 and 8 C.F.R. 242.61) appeals in deportation cases must be filed in the 10-day period as set forth, and although there is authority to extend the time for filing a brief if a proper appeal has been taken, no such authority exists to extend the time for filing the appeal itself. Matter of G---- Z----, E-065122, June 12, 1953, Int. Dec. No. 459. Although the special inquiry officer may, at his own instance, reopen a case for the introduction of additional evidence, or to reconsider a decision previously made, there is no sanction, regardless of how worthy his motives may be, for him to reopen a case upon his own motion for the sole purpose of permitting a belated appeal to be taken. He may of course entertain a motion properly made by the alien or his attorney under 8 C.F.R. 8.1 and 8.11, to reopen or reconsider, and grant or deny such motion, in which case an appeal from his order may be taken in accordance with the applicable regulations. Unless this procedure is followed, there is no appeal pending which this Board has jurisdiction to consider. Counsel may wish to make a motion to reopen or reconsider the case. We will therefore remand the case to the special inquiry officer for such action as may be appropriate in accordance with the foregoing.
Order: It is ordered that the case be remanded to the special inquiry officer for further appropriate action in accordance with the foregoing.