E-086054
Decided by the Board October 9, 1953
Application for suspension of deportation — Section 244 (a) of the Immigration and Nationality Act — Not timely unless filed during the deportation hearing.
An application for suspension of deportation under section 244 (a) of the Immigration and Nationality Act must be submitted during the deportation hearing in order to be timely. The contention that the respondent may file such an application at any time prior to the entry of a final order of deportation by the Board of Immigration Appeals is not tenable, since the requirement that an alien shall not have been served with a final order of deportation sets forth a condition to be met and does not authorize the filing of the application at any particular time. In the instant case, where the original attorney refused to file an application for suspension of deportation during the hearing, motion to reopen by the present attorney is granted purely as a matter of grace, because the matter had not been previously discussed by the Board, the alien had been lawfully admitted to the United States, and had been residing in this country for the past 50 years.
CHARGE:
Warrant: Immigration and Nationality Act — Section 241 (a) (4), convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, petty larceny and attempted burglary, third degree.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer ordering respondent's deportation on the ground stated above. The only issues we now decide are whether a valid application for suspension of deportation has been submitted, and if not, whether proceedings should be reopened to permit the filing of an application for suspension of deportation.
Title 8, Code of Federal Regulations, section 244.2 dealing with applications for suspension of deportation provides that an application shall be submitted in accordance with and subject to the provisions of 8 C.F.R. 242.54 (d) which in turn states that an application for suspension of deportation may be submitted during a deportation hearing. At the hearing, previous counsel refused to file an application for suspension of deportation. The special inquiry officer handed down his decision on August 5, 1953. Shortly thereafter, present counsel was substituted. He immediately requested that he be supplied with appropriate forms and be permitted to file an application for suspension of deportation. Despite the fact that hearing was not reopened, and apparently upon his own initiative, counsel submitted application on September 15, 1953.
Counsel urges that the application of September 15, 1953, was timely filed but that if this Board find to the contrary, he requests that hearing be reopened to permit respondent to file an application for suspension. The Service contends timely application for discretionary relief was not made and strongly urges that the motion to reopen proceedings be denied because giving sanction to such a procedure would place an intolerable burden upon the Service for it would require hearing each case twice — once as to deportability, and after that issue had been decided upon appeal, again in a reopened proceeding on the issue of discretionary relief. The Service points out that it has been the practice for years, that one hearing shall dispose of both the issue of deportability and the issue of discretionary relief.
The basis for counsel's contention that the filing of the application for suspension of deportation is timely, is not set forth. However, previous counsel refused to file application for suspension of deportation at the hearing on the theory that section 244 (a) (5) of the Immigration and Nationality Act permitted the filing of an application for suspension of deportation at any time prior to the service upon the alien of a final order of deportation and that since the order of the special inquiry officer was not a final order if appeal was taken (8 C.F.R. 242.61 (e); 8 C.F.R. 6.1 (d) (2)), an application for suspension of deportation could be filed at any time prior to the entry of a final order by this Board; and any attempt to limit the time of filing to the time of the hearing as required by regulations was an unconstitutional limitation upon section 244 (a) (5) of the Immigration and Nationality Act.
We believe the argument is not tenable. Section 244 (a) (5) of the Immigration and Nationality Act sets forth conditions which must exist before an alien may be found eligible to apply for relief. For example, he must be of good moral character for a period of 10 years; must have a 10-year period of residence; and must not have "been served with a final order in deportation proceedings." It does not purport to permit an alien to achieve these conditions in any manner or to apply for suspension of deportation at any particular time or place. The requirement that the alien must not have been served with a final order of deportation no more authorizes an alien to apply for suspension of deportation at any particular time than the provision that he have 10 years of residence authorizes him to request permission to remain in the United States for a period sufficient to make up 10 years or the provision that he have 10 years of good moral character authorizes him to request permission to remain in the United States until he achieves such a period. The section sets forth conditions which must be found to exist, it does not authorize the acquisition of such conditions and it leaves the time and place and manner of application to be fixed by the Attorney General (sec. 103 (a), Immigration and Nationality Act).
Furthermore, we believe it a settled matter that where relief is a matter of discretion, it may be granted upon such reasonable conditions as experence may indicate is desirable ( United States ex rel Bartsch v. Watkins, 175 F. (2d) 245 (C.A. 2, 1949). The Service contention that a practice permitting reopening of proceedings for the sole purpose of determining the issue of discretionary relief would place an intolerable burden upon the Service is ample proof of the reasonableness of the condition that one who desires to apply for suspension of deportation do so at the time the issue of deportability is being tried.
That the regulations intend an application for suspension of deportation be submitted only during the course of the hearing is apparent not alone from the wording of the regulation but from the fact that previous regulations permitted the filing of an application for suspension of deportation both at the deportation hearing and prior thereto (8 C.F.R. 150) while the present regulations make no provision for the submission of an application prior to the deportation hearing. We therefore conclude that since no application for suspension of deportation was submitted at the hearing and since the application submitted thereafter was not timely, no valid application for suspension of deportation is before us.
Counsel urges that proceedings be reopened to enable him to file an application for suspension of deportation. He contends the alleged incompetence of previous counsel in failing to protect the rights of the respondent constituted a denial of due process to respondent. We do not believe this can be validly urged. What is revealed here is at most an error in judgment in the conduct of defense. This does not, even in a criminal proceeding, constitute a denial of due process ( United States v. Handy, 203 F. (2d) 407, and cases cited in footnote 10 on p. 426). Furthermore, the consequences of the failure to apply for suspension of deportation at the hearing were stated by the special inquiry officer in the presence of the respondent and counsel. At the close of hearing, respondent was asked if he desired to say anything, he indicated that he would rely upon his attorney. Respondent, at all times, showed a good understanding of English. He now has no right to ask that the order of deportation be set aside because of the alleged incompetence of counsel. However, purely as a matter of grace, and because this issue has not previously been discussed by this Board, and this alien was lawfully admitted to the United States at the age of 5, and has been a resident for the past 50 years, we will reopen proceedings to permit a filing of an application for suspension of deportation.
Order: It is ordered that proceedings be reopened in accordance with the foregoing paragraph.