Interim Decision #2077
MATTER OF GERONIMO In Deportation Proceedings A-18924288 Decided by Board March 5, 1971
(1) Determination as to the institution of deportation proceedings against a deportable alien lies within the province of the District Director. Where deportation proceedings have been instituted, it is not within the province of the special inquiry officer, nor the Board of Immigration Appeals on appeal, to review such action but to determine whether deportability is es- tablished by evidence which is clear, convincing and unequivocal. (2) Allegations of misconduct against Service personnel and respondent's former attorney made on appeal in deportation proceedings and based on matters outside the administrative record, should not be casually asserted but should be specified and stated under oath. CHARGE: Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmi- grant visitor—remained longer than permitted.
This is an untimely appeal from a decision of a special inquiry officer, finding the respondent deportable on the above-stated charge and granting her the privilege of voluntary departure. We shall consider the case on certification under 8 CFR 3.1 (d). Respondent is a 24-year-old unmarried female, native and citi- zen of the Philippines, who was admitted to the United States as a nonimmigrant visitor for pleasure on October 4, 1969 and has remained longer than permitted. At a deportation hearing on January 22, 1971, at which she was represented by counsel, she admitted the factual allegations of the order to show cause and conceded deportability. On the same day, the special inquiry officer granted her the privilege of departing voluntarily on or be- fore February 22, 1971. Respondent thereafter retained present counsel, whose notice of appeal in her behalf, though dated Janu- ary 29, 1971, was not filed until February 5, 1971. In his notice of appeal and supporting brief, present counsel seeks reversal on the basis of factual allegations outside the ad-
[*1360]Interim Decision #2077 merely ungrammatical. If untrue, it is irresponsible. Grave charges such as these, made against Service personnel and re- spondent's former attorney, and obviously based on matters out- side the administrative record, should not be casually asserted in an unsworn allegation if they are seriously urged. The facts should be specified and stated under oath, subject to the penalties of perjury. If not seriously urged, such charges should not be as- serted at all. We do not know what, if anything, happened outside the ad- ministrative record now before us. Our careful review of that rec- )rd satisfies us that the special inquiry officer conducted a fair tearing, properly found the respondent deportable as charged, Ind accorded her the privilege of voluntary departure, the only orm of discretionary relief from deportation for which respond- nt is eligible. If present counsel feels that additional voluntary 'eparture time is needed, he has an adequate remedy in an appli- ation to the District Director under 8 CFR 244.2. In support of hat application he may present such proofs as he may deem ap- ropriate, including the evidence of respondent's alleged good iith in obtaining the visa, etc. ORDER: The decison of the special inquiry officer is affirmed. It is further ordered that, pursuant to the special inquiry ficer's order, the respondent be permitted to depart from the nited States voluntarily within 31 days from the date of this . der or any extension beyond that time as may be granted by e District Director; and that, in the event of failure so to de- .rt, the respondent shall be deported as provided in the special 4uiry officer's order.
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