Matter of Saban (Board decision, June 11, 1981)

Plain-English summary

The Board reviewed an appeal by a Yugoslavian citizen who lived in Belgium and sought admission to the United States using fraudulent documentation. After conceding excludability, the applicant filed for asylum. The Immigration Judge entered a final exclusion order before receiving the required advisory opinion from the State Department's Bureau of Human Rights and Humanitarian Affairs, while stating that the case could be reopened later. The Board held that the hearing should have been adjourned, the advisory opinion had to be placed in the record, and the applicant had to be allowed to inspect, explain, and rebut it. The Board vacated the Immigration Judge's decision and remanded for consideration of the asylum application and a new decision.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1182(a)(14), (19), and (20), 1158, and 1253(h); 8 C.F.R. §§ 208.3(b) and 208.10(b)
• Outcome: The Immigration Judge's exclusion decision was vacated, and the record was remanded for further proceedings.
• Key point: A final exclusion order could not be entered before the required State Department asylum advisory opinion was received and disclosed to the applicant.

Full text (BIA official public release)

Interim Decision #2870

MATTER OF SABAN
In Exclusion Proceedings

A-23193117
' Decided by Board June 11, 1981

(1) When the applicant files an application for asylum after he. has been placed in exclusion proceedings, the immigration judge must adjourn the hearing for the purpose of re- questing-an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs (BHRHA), Department of State. 8 C.F.R. 208.10(b). (2) Prior to the issuance of a final order of exclusion and deportation, a BHRHA advisory opinion, received in connection with an asylum request made in exclusion proceedings, must be made part of the record and the applicant given an opportunity to inspect, explain, and rebut it. 8 C.F.R. 208.10(b). (3) Immigration judge erred when he ordered asylum applicant excluded prior to receipt of a BHRHA opinion, but stated that he would reopen the proceedings when such opinion was issued. EXCLUDABLE: Order: Act of 1952—Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)1—Not in possession of valid labor certification
Sec. 212(a)(19) f8 U.S.C. 1182(a)(19)1—Attempted to enter United States by fraudulent documentation
Sec. 212(a)(20) (8 U.S.C. 1182(a)(20) — Not in possession of a valid, unexpired visa
ON BEHALF OF APPLICANT: Margaret H. McCormick, Esquire McCormick & Hallagen
30 West Washington Boulevard
Chicago, Illinois 60602
By: Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members

This is an appeal from a decision of the immigration judge, dated March 13, 1981, finding the applicant excludable as charged and order- ing his exclusion and deportation from the United States. The appeal will be sustained and the record will be remanded. The applicant is a resident of Belgium and a citizen of Yugoslavia, who applied for admission to the United States on February 23, 1981, by first claiming to be a United States citizen and then by presenting a fraudulent alien registration card. A form 1-122, Notice to Applicant for

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 Interim Decision #2870 Admission Detained before Immigration Judge, was issued to the applicant. At the exclusion hearing, the applicant conceded excludability. An application for asylum was filed with the immigration judge pursu- ant to 8 C.F.R. 208.3(b), Nonetheless, the immigration judge entered a final order of exclusion without adjourning the hearing, indicating that he would reopen the proceedings after an advisory opinion was returned from the Department of State, Bureau of Human Rights and Humanitar- ian Affairs (BHRHA). We note at the outset that the transcript of the proceedings and the immigration judge's decision are not in the record file. Counsel for the applicant stated in a letter to the immigration judge, dated April 6, 1981, that the applicant was willing to waive the transcription of the record and the decision. Counsel then requested that this Board con- sider the single issue of law presented in this case. We agree to consider this appeal because of the special circumstances of this case. The request for expedition was made by the applicant. The Service has forwarded the record file to us. It appears that both parties are willing to go forward with this appeal. In addition, for the reasons stated below, our decision will not adversely affect the applicant.
The asylum procedure for requests made after the institution of exclu- sion proceedings is set forth in 8 C.F.R. 208.10. 8 C.F.R. 208.10(b) provides that: "[w]hen the asylum request is filed, the hearing shall be adjourned for the purpose of requesting an advisory opinion from BHRHA." This section further provides that: "[t]he BHRHA opinion shall be made part of the record, and the applicant given an opportunity to inspect, explain, and rebut it." The immigration judge's entry of a final exclusion order is incorrect. An asylum request was filed by the applicant at the exclusion proceedings. The proper procedure then was for the immigration judge to adjourn the hearing for the purpose of obtaining an advisory opinion from BHRHA. Moreover, the regulations provide that prior to any issuance of a final exclusion order, the BHRHA opinion must be made part of the record of the exclusion proceedings and the applicant given an opportu- nity to inspect, explain, and rebut the advisory opinion. Accordingly, the appeal will be sustained, and the record will be remanded.' ORDER The appeal is sustained. FURTHER ORDER: The decision of the immigration judge is vacated and the record is remanded for, consideration of the applicant's application for asylum and for the entry of a new decision.

l An application for political asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. 1158, made after the institution of exclusion or deportation proceedings, shall also be considered as a request for withholding of deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). 8 C.F.R. 208.3(b) (effective June 1, 1980).

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