A-4713047
Decided by Board November 25, 1968
The Board of Immigration Appeals does not have jurisdiction to entertain a District Director's certification of his determination on an application for the creation of a record of lawful admission for permanent residence pursuant to section 249 of the Immigration and Nationality Act, as amended, since the appellate jurisdiction of the Board exists only as delineated in 8 CFR 3.1(b), which does not provide for such action
The District Director, San Francisco District, under date of September 23, 1968 ordered that a record of admission for permanent residence be established pursuant to section 249 of the Immigration and Nationality Act, such lawful permanent residence to begin September 23, 1968. He further ordered that in view of the apparent conflict of his order with the cited precedent decisions of the Board of Immigration Appeals, his decision be certified to the Board for concurrence or negation.
The appellate jurisdiction of the Board is provided for in section 3.1(b), Title 8, Code of Federal Regulations. The District Director concedes that there is no procedure provided in the regulations for a District Director to certify an application under section 249 of the Immigration and Nationality Act to the Board of Immigration Appeals. He points out there is also no prohibition in the regulations against such action. However, the fact that no regulation specifically prohibits our taking jurisdiction is beside the point. The appellate jurisdiction of the Board is delineated in 8 CFR 3.1(b). Unless the regulation affirmatively grants us power to act, we have no power insofar as appellate jurisdiction is concerned.
In the event that the District Director desires to certify his decision further, certification should be to the Regional Commissioner under the regulations. Otherwise, unless the case arises on appeal from a decision of a special inquiry officer in deportation cases as provided in Part 242, 8 CFR, this Board is without jurisdiction. The certification desired by the District Director to this Board will be denied for lack of jurisdiction.
ORDER: It is ordered that certification of the order of the District Director in section 249 proceedings of the Immigration and Nationality Act be and the same is hereby denied for lack of jurisdiction.