Matter of Brown (Board decision, September 30, 1982)

Plain-English summary

The Service appealed after an immigration judge terminated deportation proceedings against a Jamaican lawful permanent resident who had temporarily left the United States. The respondent had conceded deportability for a marijuana conviction and had applied for a section 212(c) waiver before departing. The Board held that a temporary departure does not nullify properly initiated proceedings when the original charges still apply, so the Service was not required to issue a new Order to Show Cause after his return. It also held that the respondent could resume his waiver application, sustained the appeal, and remanded for further proceedings and a new decision.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1251(a)(11) and 1182(c); 8 C.F.R. § 242.1(b)
• Outcome: The Service's appeal was sustained and the record was remanded for further proceedings.
• Key point: A temporary departure and reentry do not terminate pending deportation proceedings when the original deportability charges remain applicable.

Full text (BIA official public release)

• Interim Decision #2924

MATTER OF BROWN
In Deportation Proceedings

A-30085015

Decided by Board September 30, 1982
(1) Deportation proceedings which have been commenced against an alien are not nullified by his temporary absence from the United States as long as the allegations and charges stated in the Order to Show Cause continue to be. applicable. (2) The Immigration and Naturalization Service need not issue a new Order to Show Cause when an alien under deportation proceedings departs from the country if upon his return he is still deportable on the same grounds stated in the Order to Show Cause. (3) A lawful permanent resident who has applied in deportation proceedings for a waiver of deportability under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.
•182(c), and subsequently departs from the United States may resume the application in those proceedings upon his return. CHARGE: Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of a narcotics vio- lation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Joseph F. O'Neil, Esquire
Frederick J. McGrath
116 Lincoln Street
General Attorney
Boston, Massachusetts 02111
Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

The Immigration and Naturalization Service has appealed from a deci- sion of the immigration judge dated May 5, 1982, terminating deporta- tion proceedings. The appeal will be sustained and the record will be remanded for further proceedings. The respondent is a 25-year-old native and citizen of Jamaica who was admitted to the United States on May 27, 1973, as a lawful permanent resident. Thesecord reflects that he was convicted on June 3, 1980, in the District Court of Springfield, in Springfield, Massachusetts, for possession of marijuana. On August 28, 1980, an Order to Show Cause was issued charging the respondent with deportability under section 241(a)(11) of the Immigra- tion and Nationality Act, 8 U.S.C. 1251(a)(11), for having been con- victed of a narcotics violation. At deportation proceedings conducted on 224
 Interim Decision #2924 May 11, 1981, the respondent conceded deportability and applied for a waiver of deportation pursuant to section 212(c) of the Act, 8 U.S.C. 1182(c). TLe hearing was continued for an investigation regarding that application At resumed proceedings on May 5, 1982, the respondent testified that he had departed from the Unit ul States on August 19, 1981, for a visit to Jamaica. The immigration judge terminated deportation proceedings, concluding that the Service was required to institute new proceedings as a result of the respondent's departure from the United States. He further stated that by leaving.the country the respondent abandoned his applicatiom for section 212(c) relief. We find that the immigration judge erred in terminating the proceed- ings in this case. Deportation proceedings previously commenced against an alien are not nullified by his temporary absence from the United States. The reason for issuance of an Order to Show Cause is to inform an alien of the deportation charges against him and to notify hiln that he must show why he should not be deported. See 8 C.F.R. 242.1(b). As long as the allegations and charges stated in the Order to Show Cause continue to be applicable, the alien remains subject to deportation. He cannot compel the termination of deportation proceedings which have been commenced against him merely by effecting a departure and reentry. Consequently, we do not find it mandatory that the Service issue a new Order to Show Cause when an alien departs from the coun- try if upon his return he is still deportable on the same grounds stated in the Order to Show Cause. This ruling does not, however, preclude the Service from electing to issue a new Order to Show Cause when appropriate. • Furthermore, we conclude that the respondent's application for sec- tion 212(e), relief could properly be resumed upon his return to the United States. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981). Requirr inghimtofileanotheraplicationwouldservenousefulpurposeinthih case. Accordingly, the record will be remanded to the immigration judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision. ORDER The record is remanded to the immigration judge for further proceedings.

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