ROUSSIS

Interim Decision #2908

MATTER OF ROUSSIS
In Deportation Proceedings
A-21401985
Decided by the Board June 30, 1982

The immigration judge's decision granting the respondent's motion to remand his ad-
justment of status application to the District Director for adjudication is in clear deroga-
tion of the carefully defined jurisdictional scheme set out in the Code of Federal Regula-
tions pertaining to section 245 relief and impermissibly impinges upon the District Director's
prosecutorial discretion.
CHARGE: •
Order: lot of 1952—Soo. 241(a)(2) [9 U.S.C. 1251(a)(2)] Nonimmigrant atudent-
remained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Pro se Gerald S. Hurwitz
Appellate Trial Attorney
BY: Milhollan, Chairman; Maniatis, Dunne, Morris and Vaeca, Board Members

In a decision dated February 1, 1982, an immigration judge granted
the respondent's motion to reopen his deportation proceedings and to
remand his case to the District Director for consideration of his applica-
tion for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.C. 1255. She then certified her decision to the
Board for review pursuant to 8 C_F.R. 3.1(e) and 8 C.F.R. 242.8(a). The
immigration judge's decision will be reversed.
The respondent, a 30-year-old native and citizen of Greece, was ad-
mitted to the United States on October 27, 1972, as a nonimmigrant
student, authorized to remain until October 26, 1976. In deportation
proceedings conducted on July 6, 1977, the respondent was found deport-
able as an overstay under.section 241(a)(2) of the Act, 8 U. S. C. 1251(a)(2),
but was granted the privilege of voluntary departure in lieu of deporta-
tion.
On February 1, 1982, the immigration judge ordered the deportation
proceedings reopened on the basis of an immediate relative visa petition
which had been filed on the respondent's behalf by his United States
citizen spouse} Over the objection of the Immigration and Naturnliza-
The respondent had already filed an earlier motion to reopen on August 27, 1977, in

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tion Service, she further ordered that the case be remanded to the
District Director for adjudication of the respondent's adjustment
application. She then certified her decision to us for review.
The precise issue presented is whether an immigration judge is author-
ized to remand a ease involving a section 245 application to the District
Director for adjudication notwithstanding the fact that an Order to
Show. Cause has been issued, deportation proceedings have begun, and
the District Director objects to the remand order.
The immigration judge concluded that an order of remand to permit
consideration by the District Director of an adjustment application,
coupled with an order of conditional termination of the deportation
proceedings; is a permissible exercise other authority. Such procedure,
she submits, promotes efficiency and the savings of resources for the
District, the Immigration Court, the aliens and their representatives
and, at the same time, does not contravene the applicable regulations.
Moreover, she contends that "to deny to an alien the ability to move for a
remand [a procedure available to the Service in certain circumstances
pursuant to 8 C. F. R. 242.7] would unfairly favor the Service. . . ."
The Immigration and Naturalization Service opposes the remand,
arguing that the immigration judge's unilateral decision to remand not
only violates the regulations but impinges upon the District Director's
prosecutorial discretion.
For resolution of this question, reference must be made to provisions
within the Code of Federal Regulations. The pattern set out in the code
to govern the adjudication of applications for adjustment of status is
quite clear. Pursuant to 8 C.F.R. 245.2(a)(1), "after an alien has been
served with ari Order to Show Cause or warrant of arrest, his application
for adjustment of status under section 245 of the Act shall be made and
considered only in proceedings under Part 242 of this Chapter."' It is
evident then that the immigration judge is charged by regulation, which
has the force of law, with the responsibility of accepting and adjudicat-
ing an application for section 245 relief if that application is submitted by
an alien in deportation proceedings.
The immigration judge acknowledges that 8 C.F.R. 245.2(a)(1) vests
the immigration judge with exclusive jurisdiction to entertain adjust-
ment applications, once an Order to Show Cause has been issued. It is
her position; however, that nothing prevents the immigration judge
from "ceding" that jurisdiction when practical and equitable considera-
tions dictate. Thus, under the immigration judge's theory, the District
Director could be forced to assume jurisdiction over a pending adjust-
ment application simply because an immigration judge chooses to relin-
which ha requested consideration of an adjustment application based upon a sixth prefer-
ence petition.This motion was still pending when the immediate relative petition was
substituted.
Section 242 governs the institution, conduct, and resolution of deportation proceedings.
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quish it. We do not believe that an issue as fundamental as jurisdiction is
subject to act hoc resolution, especially given the explicit mandate of the
regulation in question.
Further, we agree with the Immigration and Naturalization Service
that a sua spouts remand by an immigration judge impinges upon the
District Director's exclusive authority to control the prosecution of
deportable aliens. It has long been held that when enforcement officials
of the Immigration and Naturalization Service choose to initiate proceed-
ings against an alien and to prosecute those proceedings to a conclusion,
the immigration judge is obligated to order deportation if the evidence
supports a finding of deportability on the ground charged. Integral to a
determination of whether an alien, although indisputably deportable, is
to be ordered deported is whether or not he is eligible for any form of
relief from deportation. See 8 .C.F.R. 242.17. See Lopez-Telles v. INS,
564 F.2d 1302 (9 Cir. 1977); Guan Chow Tok v. INS, 538 F.2d 36 (2 Cir.
1976); Matter of Merced, 14 I&N Dec. 644 (BIA 1974); Matter of
Geronitrw, 13 I&N Dec. 680 (BIA 1971). See also Matter of Chamizo, 13
16c14 Dec. 435 (BIA 1969).
Aside from 8 C.F.R. 242.7, which authorized the District Director, in
certain specified instances, to cancel an Order to Show Cause and thereby
terminate proceedings prior to their commencement or to request dis-
missal or remand of a case after proceedings have begun, there is no
provision in the regulations which authorizes the termination, whether
conditional or final, of deportation proceedings. On the contrary, the
regulations emphatically require the prompt completion of the deporta-
tion hearing if no action to terminate or remand is taken by the District
Director. See 8 C.F.R. 242.7.
In conclusion, we find that the immigration judge's decision togrant
the respondent's motion to remand and thereby conditionally divest
herself of jurisdiction over his adjustment application is in clear deroga-
tion of the carefully defined jurisdictional schemeset out in the regula-
tions pertaining to section 245. Further, the immigration judge's con-
cern that an alien must be allowed to move fora remand of his adjustment
application if the Service and the alien are to stand before her as equals
is misplaced. While an alien is given the right to submit an application
for relief under section 245, no authority of which we are aware sug-
gests that he also has the right to dictate the procedures whereby his
application is adjudicated. -
Finally, we have noted the immigration judge's commendable interest
in improving the efficiency of existing adjudicatory procedures. However,
the fact remains that the suggested improvements are at variance with
the applicable regulations. Thus, in the absence of regulatory amendment,
we cannot sanction the inucedures followed below.
ORDER: The decision of the immigration judge is reversed.

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