to the deportation proceeding, but the application had not been ruled upon to the time oral argument was heard before the Board. At the deportation hearing, counsel asked the special inquiry officer to rule upon the application for the waiver; the special inquiry officer held that he had no jurisdiction to do this. This is the first issue we shall discuss.

Counsel contends that the special inquiry officer, having the power to grant the greater relief (adjustment of status to permanent residence) must also have the power to grant the lesser relief (waiver of the requirement that there be an absence of two years) and therefore should have acted upon the application for the waiver. Counsel is aware of the fact that in Matter of Rosenblatt, Int. Dec. No. 1260, and other decisions, the Board held that a special inquiry officer has no authority to pass upon an application for a waiver of the absence requirement; however, counsel believes the precedents are distinguishable because either dicta is involved or the cases would have required review of a prior determination made by the District Director on the application for a waiver. In the instant case, counsel points out that no decision by the District Director had been made upon the application for the waiver at the time the deportation hearing was held.

We do not find the contention persuasive. In Matter of Rosenblatt, supra, the alien in deportation proceedings, requested that the special inquiry officer rule upon an application for a waiver under section 212(e) of the Act. The alien contended, as in the instant case, that the special inquiry officer could draw authority to make such a ruling from his power to examine an alien's eligibility for adjustment of status. An application for the waiver had been denied by the District Director prior to the deportation proceeding. The Board held that neither the special inquiry officer nor the Board had jurisdiction to consider the application or to review a decision made by the District Director upon such an application. The Board's decision was bottomed, not upon the fact that an application for the waiver had been previously denied by the District Director, but upon the fact that an examination of the law and regulations revealed there was no authority for the special inquiry officer or the Board to take jurisdiction in the matter, such authority having been specifically delegated elsewhere. We see no reason to change the decision we made in Matter of Rosenblatt, supra. Counsel's first contention must be rejected.

The second issue raised by counsel arises from the fact that the special inquiry officer having granted respondent voluntary departure, refused, on the ground that he lacked jurisdiction, to comply with counsel's request that he couple the grant of voluntary departure with a provision that the respondent must be permitted to stay in the United States until there had been a ruling upon his application for an adjust

ment of status. This contention is more troublesome for it points out that despite the fact that a special inquiry officer may have given a respondent in deportation proceedings voluntary departure, the District Director may nevertheless order the respondent deported before a decision is made on the merits of a pending application. Counsel suggests that justice can be done only if a limitation is placed upon the District Director's power to deport an alien until the alien's pending application for adjustment of status is decided. Counsel suggests that the possibility of abuse stemming from deportation of an alien before a ruling had been made upon an application which would have permitted him to become a lawful resident of the United States, requires that deportation proceedings be held in abeyance until a decision is made upon a pending application for relief. If, however, deportation proceedings must be held, counsel contends that either the decision of the special inquiry officer should be deferred until a ruling is received upon the application, or the order of the special inquiry officer finding an alien deportable and granting voluntary departure should contain a provision preventing deportation before a ruling is handed down by the District Director upon the application.

The Service representative states that administrative reasons require that deportation proceedings be processed to a final conclusion giving the authorities the right to deport the alien, but that the Service has pursued a lenient policy with respect to the forcible removal of aliens who have applications pending. He points out that often there is a long delay which occurs in ruling upon applications for a waiver because agencies other than the Service are involved. Finally, the Service representative contends that the Board has no jurisdiction to consider the issue arising out of the length of time which an alien shall be permitted to remain in the United States after the special inquiry officer has found him deportable, when the only issue involved is the failure of the District Director to pass upon a pending application for relief.

Although counsel has presented a few situations, some real, some hypothetical, which in his opinion involved or could involve abuse of the District Director's power to deport, we do not believe he has demonstrated that a real problem exists. If there should be an abuse of discretion, the courts, and this Board (we need not enter into a question as to our authority to do so at this time) have the power to see that justice is done. Furthermore, it appears to us that if an alien, having been found deportable for violation of the immigration laws, fails to depart in accordance with the provisions of the privilege of voluntary departure which has been given to him, there should be a power in the District Director to deport him expeditiously even though an application for relief may be pending, if the District Di

rector, after consideration of the bona fides of the application, the length of time adjudication will take, the ability of the alien to depart and return, the probability of the success of the application, and other pertinent factors, decides that the policy of law will be defeated unless the alien promptly departs. Such power, like all power is subject to abuse; however, as we have stated, we have not been shown that it is the policy to abuse this power and it is uncalled-for to assume that a government official would deliberately abuse this power as a matter of policy. Furthermore, the Service representative has assured us that the power is leniently used. We believe the appeal should be dismissed without prejudice to reconsideration if the application for the waiver is favorably acted upon.

ORDER: It is ordered that the appeal be and the same is hereby dismissed without prejudice to reconsideration if the application for the waiver is favorably acted upon.

MATTER OF Yoo

In DEPORTATION Proceedings

A-10751071

Decided by Board October 30, 1963

A lawful permanent resident, upon return to the United States in July 1959 following a 4-hour absence to Mexico on a sight-seeing trip did not make an entry [Rosenberg v. Fleuti, 371 U.S. 449] upon which to predicate a ground of deportation arising out of a conviction of a crime involving moral turpitude commited within 5 years after entry. See Matter of Cardenas-Pineda, Int. Dec. No. 1295.

CHARGE:

Order: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)]—Convicted of crime committed within 5 years of entry, to wit, murder in the first degree.

An order entered by the special inquiry officer on July 23, 1963 directs the respondent's deportation to the Republic of Korea on the charge that he has been convicted of a crime involving moral turpitude committed within five years after entry and sentenced to confinement therefor for a year or more, to wit, first degree murder (8 U.S.C. 1251 (a) (4)). The case has been certified for final decision by the Board of Immigration Appeals.

The record relates to a native and citizen of the Republic of Korea, male, unmarried, 23 years of age, who was admitted to the United States for permanent residence through the port of Seattle, Washington on July 7, 1956. The evidence establishes and the respondent admits that he was convicted in the Circuit Court for the Eleventh Judicial Circuit, Dade County, Miami, Florida, of first degree murder and sentenced to life imprisonment on April 18, 1963. The respondent also admits that in July of 1959 he went on a sight-seeing trip to Mexico for approximately four hours accompanied by his father and another person.

The case has been certified for an interpretation of the term "entry" in light of the Supreme Court decision in the case of Rosenberg v. Fleuti, 374 U.S. 449, 10 L. ed. 2d 1000, June 17, 1963. The Supreme

Court in the Fleuti case had before it the question of whether a resident alien who returned to the United States in 1956 after a brief visit to Mexico and at that time was excludable under section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182 (a)) would be subject to deportation by reason of an "entry" within the meaning of section 101 (a) (13) of the Act (8 U.S.C. 1101 (a) (13)). The Court construed the "intent" exception to the definition of the term "entry" as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence. The following factors were stated by the Court as indicative of such an intent: (1) the length of time the alien was absent from the United States; (2) the purpose of the alien's visit abroad is not contrary to some policy reflected in our immigration laws; and (3) was it necessary for the alien to procure travel documents in order to make the trip.

The evidence with regard to the nature of respondent's short. visit to Mexico was fully developed by the trial attorney. The respondent testified “... we entered Mexico just visiting a different country, sightseeing, sir." When questioned as to whether he knew that he was leaving the United States and entering Mexico, the respondent replied “... the only answer I can give you . . . in entering a different country. No, I didn't have the intention in my mind at that time." (pp. 13 & 14) The respondent subsequently testified that he knew that he was entering a foreign country when he visited in Mexico (p. 16); that he had an “identification card” which said "I was allowed either in Mexico or Canada, possibly three months with this card" (p. 12); and that he went through inspection when he entered and departed from Mexico (p. 15).

The special inquiry officer, referring to the factors enumerated by the Supreme Court as indicative of an "intent" to depart in a meaningful manner, concedes that the length of the respondent's absence in Mexico was short (four hours); that the purpose of the respondent's visit to Mexico was legitimate, namely, not contrary to some policy reflected in our immigration laws and that it was an innocent, casual and brief excursion from the United States. The special inquiry

1That portion of section 101 (a) (13), Immigration and Nationality Act (8 U.S.C. 1101 (a) (13)) pertinent to this decision reads as follows: "The term 'entry' means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: . (Emphasis supplied.)