A-8063777.
Decided by Board May 24, 1954.
Motion to reopen and reconsider — Jurisdiction.
The Board of Immigration Appeals is without jurisdiction to act on a motion to reopen and reconsider in a deportation proceeding (including arrest and deportation and exclusion and deportation) where the alien departed from the United States subsequent to the filing of the original appeal and prior to the Board's action thereon. Such departure constitutes withdrawal of the appeal and the initial decision in the case is final to the same extent as though no appeal had been taken (8 C.F.R. 6.12; 8 C.F.R. 236.14). The Immigration and Naturalization Service also is without jurisdiction to act since the alien has departed from the United States (8 C.F.R. 8.1).
BEFORE THE BOARD
Discussion: On September 11, 1953, this Board dismissed the alien's appeal from the decision of the special inquiry officer excluding him on the ground that he was inadmissible under the Immigration and Nationality Act of 1952 as one affiliated with the Communist Party of a foreign state. Appeal from the order of the special inquiry officer was filed on August 13, 1953. On the following day the alien departed from the United States. We had no knowledge of this departure when we entered our decision of September 11, 1953. This motion for reopening and reconsideration was submitted on November 24, 1953. It is based on new evidence, which it is urged would establish appellant's admissibility and the fact that membership in the subversive organization was involuntary. The facts have been fully stated in the special inquiry officer's order and since they are not involved at this time, will not be repeated.
We believe we are without jurisdiction to act on the motion. Lack of jurisdiction stems from the fact that our order of September 11, 1953, is a nullity and must be regarded as if it had never been entered. This conclusion is required by 8 C.F.R. 6.12 which in pertinent part provides: "Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal and the initial decision in the case shall be final to the same extent as though no appeal had been taken" (see also 8 C.F.R. 236.14). In law there exists no decision of this Board in this case. It follows that we are without jurisdiction to entertain a motion to reconsider the decision. No order of the Board exists; the alien is outside the United States; we are without jurisdiction to reopen proceedings (8 C.F.R. 6.2).
The phrase "deportation proceedings" here includes both arrest and deportation, and exclusion and deportation proceedings.
If the alien were in the United States, he could have addressed a motion for reconsideration or reopening to the special inquiry officer (8 C.F.R. 8.1 (c)). Since he is not, a motion by him or on his behalf for reopening or reconsideration cannot be made effectively. This is because the regulations provide that "A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States" (8 C.F.R. 8.1). It follows, therefore, that neither we nor the Service has jurisdiction in this matter. The alien must make a new application for admission before jurisdiction can be acquired. The motion will be dismissed for lack of jurisdiction.
See footnote 1.
While we have no jurisdiction to consider this case, we will briefly discuss counsel's contention that the alien, who applied for admission as a returning resident, was deprived of due process because he was not given the opportunity to gather proper evidence as to his admissibility. If this issue were before us, we would find the contention wholly without merit. We have carefully reviewed the record and find that the alien was represented by counsel; that he was informed of his right to present evidence and cross-examine; that his counsel participated in the hearing; that no request for delay in the hearing was made so that additional evidence could be submitted; and that no claim of denial of due process was made in connection with the appeal. In fact, two affidavits from Cuba are attached to the appeal and were considered. We would find that the respondent had been accorded full due process.
Attached to the motion are a number of affidavits. These should be returned to the appellant for whatever use they may serve him if he desires to make a new application.
Order: It is ordered that the motion be and the same is hereby dismissed for want of jurisdiction.