whether respondent has been suspended, but a hearing in which respondent might seek to discredit the state finding for lack of minimum procedural fairness in the underlying process, see In re Ruffalo, supra, or for absence of minimally sufficient evidentiary support, see Selling v. Radford, supra; In re Wilkes, 494 F.2d 472 (C. A. 5, 1974); and in which respondent might adduce some other "grave reason" which would prevent the natural consequences of the state judgment from extending into the federal sphere, see Theard v. United States, supra. See generally In re Troy, 505 F.2d 746 (C.A. 1, 1975); In re Fleck, supra.

The Board argues it is bound by 8 CFR 292.3(a)(7) which states that the Board may suspend an attorney if such suspension is in the public interest and that, if an attorney has been suspended by a state court, his suspension from the bar of the Board "shall be deemed to be in the public interest." Obviously, however, Departmental regulations cannot contravene judicially established requirements of fairness, cf. In re Ming, 469 F.2d 1352, 1355 (C. A. 7, 1972), and should not be interpreted to do so where such interpretation is readily avoidable. While subsection 292.3(a)(7) does indicate that state suspension "shall be deemed" grounds for Board suspension, suspension is nonetheless discretionary, since the prologue of subsection 292.3(a) provides only that the Board "may suspend” if the enumerated grounds exist. Moreover, subsection 292.3(b) provides:

If and (sic) investigation establishes to the satisfaction of the regional commissioner that suspension or disbarment proceedings should be instituted, he shall cause a copy of the written charges to be served upon the attorney or representative, either personally or by registered mail, with notice to show cause within a specified time, not less than 30 days, why he should not be suspended or disbarred.

Particularly in light of the discretionary character of subsection 292.3(a), the procedure established by subsection 292.3(b) must, in the present context, provide the opportunity to do more than contest whether the respondent's name appears upon a state suspension order. It must include also the opportunity to show that the state order was based upon an invalid procedure or patently inadequate evidence, or that for some other grave reason the normal presumption established by subsection 292.3(a)(7) should not govern. Only in this manner can the independent integrity of the federal administrative bar be maintained. In sum, since 8 CFR 292.3(b) is meant to provide the opportunity to establish the basis for informed exercise of the Board's discretion under 8 CFR 292.3(a), including the existence of extraordinary factors, of the sort described above, overcoming the presumptive effect of state bar suspension; and since respondent, in this case, was denied the opportunity to present contentions and evidence going to alleged fundamental procedural inadequacy of his state court suspension and alleged insub

stantiality of the evidence supporting it; the suspension by the Board must be reversed.

The above does not mean that, should a new order to show cause be issued, the Service must relitigate every issue raised by respondent in both his criminal trial and his state suspension proceeding. If it concludes that minimum procedural due process was afforded in the hearing of claims in these proceedings and that the evidence against respondent was minimally sufficient, reliance on the state decision-making process is not improper. In re Chipley, 448 F.2d 1234 (C.A. 4, 1971). See In re Isserman, 345 U.S. 286 (1953) (Op. of Vinson, C.J.). Cf. Thistlethwaite v. City of New York, 497 F.2d 339 (C. A. 2, 1974); In re Ming, supra, 469 F.2d at 1356. Indeed, the propriety of reliance is enhanced in the present context by the fact that the Board of Immigration Appeals is not a court of general jurisdiction, but the intended repository of a relatively narrow expertise. Relitigation before the Board of matters of state or even constitutional law previously litigated before a state supreme court thus seems particularly inappropriate. The state decision-making process, then, both in its weighing of evidence in the record and in its analysis of legal questions raised, may, if conducted in accordance with procedural due process and not patently erroneous in its result, be accepted and adopted by the Board in the course of a suspension proceeding. Furthermore, if the opportunity to be heard on certain claims existed in the state system and was ignored, the Board may refuse to consider such claims.

The litigation surrounding the question of Mr. Bogart's qualification to practice before the Board and the Service (and other courts) has been protracted and difficult. The standard for suspension from practice before the Board and the Service, however, is the same as that for disbarment before the federal courts:

Disbarment being the very serious business that it is, ample opportunity must be afforded to show cause why an accused practitioner should not be disbarred. If the accusation rests on disbarment by a state court, such determination of course brings title deeds of high respect. But it is not conclusively binding on the federal courts. The recognition that must be accorded such a state judgment and the extent of the responsibility that remains in the federal judiciary were authoritatively expounded in Selling v. Radford.

Theard v. United States, supra, 354 U.S. at 282. That responsibility has not been discharged. The decision of the Board of Immigration Appeals is reversed and the cause remanded to the Board for further proceedings consistent with this opinion.

BEFORE THE BOARD

(January 21, 1976)

In our decision dated June 12, 1975, we ordered the suspension of the respondent as an attorney before the Service and this Board during such

time as he is prohibited from the practice of law in the courts of the State of California. We further ordered that the record be certified to the Attorney General for final disposition, and stayed the suspension order pending such disposition.

On January 15, 1976, the Attorney General reversed our order of suspension and remanded this case to us for further proceedings. Accordingly, we shall remand the record to the Regional Commissioner for further proceedings consistent with the Attorney General's opinion of January 15, 1976.

ORDER: The record is remanded for further proceedings in accordance with the above opinion.

MATTER OF MARTINEZ

In Exclusion Proceedings

A-34145584

Decided by Board February 4, 1976

Since the only adverse factor against applicant, an alien commuter, is his failure to indicate in his immigrant visa application whether or not he had previously been deported and it appears from the record such failure may have been unintentional, he is granted, in exclusion proceedings, nunc pro tunc permission to reapply prior to receipt of his immigrant visa, where it has been in excess of 25 years since he was deported in 1950; it does not appear that he entered the United States at all from 1950 until he obtained his border crossing card in 1959; he did not work in the United States from 1950 until he was granted an immigrant visa in 1972; the continuation of his employment in this country depends upon aproval of his application; and, although he lives in Mexico with his immediate family, his mother and four brothers and sisters reside in the United States.

EXCLUDABLE: Act of 1952-Section 212(a)(17) [8 U.S.C. 1182(a)(17)]—Previously arrested and deported, no permission to apply or reapply for admission.

Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—No valid immigrant visa.

ON BEHALF OF APPLICANT: Jerald Abrams, Esquire

P.O. Drawer 989

Eagle Pass, Texas 78852

This is an appeal from a decision of an immigration judge dated August 14, 1975, finding the applicant inadmissible to the United States under sections 212(a)(17) and 212(a)(20) of the Immigration and Nationality Act, and denying the applicant's request for permission to reapply for admission to the United States as provided in section 212(a)(17) of the Act. The appeal will be sustained.

The applicant is a 52-year-old married male alien who is a native and citizen of Mexico. He is the parent of five children, the oldest of whom is a United States citizen.

In 1947, and again in 1950, the applicant was deported from the United States as an alien who lacked a valid immigrant visa. In March, 1954, the applicant applied to the district director for permission to reapply for admission after deportation. The application was denied and this decision was affirmed on December 27, 1955 on appeal to the act Regional Commissioner.

On November 19, 1959, the applicant applied for a nonresident alien's Mexican border crossing card, which was issued. On the back of the application, Form I-190, it is indicated that the applicant revealed his 1950 deportation, although no mention appears to have been made of the 1947 deportation.

In August, 1972, the applicant applied for and was granted, an immigrant visa. He was exempted from the labor certification requirements of section 212(a)(14) as the parent of a United States citizen child. On the application for the visa, Form FS-510, the applicant failed to complete one page of the form. This page included the questions found in block 41(b) concerning prior deportations. The applicant testified, and the form indicates, that the applicant was assisted by another individual in executing this application.

On November 14, 1973, the applicant executed a commuter questionnaire. The applicant's Alien Registration Receipt Card, Form I-151, bears an indication a grommet in the upper corner-that the applicant was administratively given commuter status. However, the applicant's testimony at the hearing establishes that from the time his visa was issued until he executed the commuter questionnaire, he worked in the United States while residing in Mexico with his wife and children, and thus has been a commuter since August, 1972. See Matter of Silva, Interim Decision No. 2457, (BIA December 4, 1975).

On April 8, 1974, the applicant was served with a notice that he was being detained for an exclusion hearing because he did not clearly appear to be entitled to enter the United States. The Service contends that the applicant's name had been posted on a "lookout" list and the applicant was stopped at the border. However, the applicant contends that at the time he was served with the notice, he had already made an entry into the United States and that he should, therefore, be in deportation proceedings.

The applicant claims that he received a "call-in" letter and that in response to this letter, he went to Eagle Pass on April 8, 1974. He claims that he went first to his sister's house in Eagle Pass for lunch, and then returned to the Service office. His sister and his niece both gave corroborating testimony.

The Service introduced a certificate of non-existence of the "call-in" letter as well as an affidavit from the immigration officer who issued the notice to the applicant. We note that the record does contain a "call-in" letter which was issued in October, 1973. Additionally, a Service officer was called as a witness and testified as to the procedures employed at the Border.

The immigration judge concluded that, taken as a whole, the evidence established that the applicant had not made an entry and was, therefore, properly in exclusion proceedings. We agree with that conclusion.