Matter of A-T-

Cite as 3 I&N Dec. 178

IN THE MATTER OF AT-

In EXCLUSION Proceedings A-6791158

Decided by Board February 19, 1948

Board of Special Inquiry-Jurisdiction. The subject applied for admission in 1947 and on primary inspection was referred to a Board of Special Inquiry, but the subject succeeded in entering the United States before appearing for a hearing before the Board of Special Inquiry, at which time he was no longer an applicant for admission, and the Board of Special Inquiry had no jurisdiction over him.

EXCLUDED BY BOARD OF SPECIAL INQUIRY : Act of 1924 -No immigration visa. Executive Order 8766-No passport.

BEFORE THE BOARD

Discussion : Appellant acquired United States citizenship by birth in this country in August 1925. He was admitted to the United States as a citizen in October 1945. On March 17, 1947, he crossed the Mexican border for a visit and on the same day he applied for admission to this country. On primary inspection the immigration inspector informed him that it would be necessary for him to appear before a Board of Special Inquiry. Later that day appellant succeeded in entering the United States at the same port by presenting his social security card. The Board of Special Inquiry hearing in this case was held October 31, 1947. So far as the record shows, appellant was residing in the United States at the time he appeared for the hearing before the Board of Special Inquiry. After he succeeded in entering the United States after he was excluded by the primary inspector, he was no longer an applicant for admission, and the Board of Special Inquiry had no jurisdiction over him. Under the immigration laws if appellant is an alien, there is jurisdiction only in deportation proceedings because by entering the United States he abandoned his application for admission.

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Cite as 3 I&N Dec. 178

(Cf. Matter of A-, 4670293, Jan. 5, 1948.) * We think it necessary, therefore, to sustain the appeal on the ground that the Board of Special Inquiry had no jurisdiction to exclude appellant. In view of this disposition of the case, it is unnecessary to consider at length whether or not the record supports the finding of the Board of Special Inquiry that appellant became expatriated under section 401 (j ) of the Nationality Act of 1940, as amended. We think it enough to say, briefly, that in our opinion the record shows that appellant remained in Mexico prior to October 1945 because he did not have sufficient money to enable him to come to the United States, and not because he wished to avoid military service. Order : It is ordered that the appeal be sustained on the ground that the Board of Special Inquiry had no jurisdiction to exclude appellant, and that appellant be admitted to the United States as a citizen of this country.

*Editor's note. In this case, the subject entered the United States while his case was on appeal from an adverse decision by a Board of Special Inquiry, and his appeal was considered withdrawn or abandoned. In the Matter of A (unreported. A-7373444) the Central Office held a Board of Special Inquiry action to be void where the applicant succeeded in entering the United States after reference to a Board of Special Inquiry by the primary inspector, then left the United States and later appeared before the Board of Special Inquiry for a hearing on her original application for admission (since she was deemed to have abandoned such application for admission by her action and, therefore, the Board of Special Inquiry had no jurisdiction in such case) .

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