YANEZ-JAQUEZ

Interim Decision #2032

MATTER OF YANEZ-JAQUEZ

In Deportation Proceedings A-105326C7 Decided by Board March 26, 1970

The six-month period specified in section 106(a) (1) of the Immigration and Nationality Act, as amended, for the filing of a petition for judicial re- view is not a limitation on the power of the Service to execute a final de- portation order during that period when judicial review has not been sought. CHARGE: Order: Act of 1952—Section 241 (a ) (4) [8 U.S.C. 1251 (a) (4 ) ]—Convicted of a crime involving moral turpitude, to wit, pass- ing a forged instrument (1968), committed within five years after entry (1967), and sentenced to confinement therefor in a prison or corrective in- stitution for a year or more. ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Albert Armendariz, Esquire William E. Weinert 593 Magoffin Avenue Trial Attorney El Paso, Texas 79901 (Brief filed)

Counsel for respondent has moved for reconsideration of our order dated January 16, 1970, Interim Decision No. 2019. We have carefully reexamined the record in the light of the matters assered in the motion. We are satisfied that our decision of Janu- ary 16. 1970 was correct. The motion for reconsideration will he denied. Counsel has requested, in the alternative, that if we deny the motion we should stay execution of the deportation order "during the full period allowed by law" for the filing of a petition for re- view under section 106 (a) of the Immigration and Nationality Act, 8 U.S.C. 1105a (a). He asserts that the statute "grants the [respondent] and his Counsel a full six months after the final de- cision of this Board to formulate and file his appeal to the Fed- eral Judiciary" and complains that "the local immigration author- ities attempt to deport the alien involved prior to the six-month

Interim Decision #2032 period." Implicit in this contention is the notion that the six- month period specified in section 106(a) (1) of the Act is a limita- tion on the power of the Service to execute a final deportation order. The provision in question is not susceptible of such a construc- tion. The six-month period is clearly a limitation only on the right to bring a direct review action in the Court of Appeals, Lia- dakis v. INS, 339 F.2d 447 (4 Cir., 1964); Lopez v. INS, 356 F.2d 986 (3 Cir., 1966) , cert. denied 385 U.S. 839; Yamada v. INS, 384 F.2d 214 (9 Cir., 1967). There is nothing in the statute to indi- cate that Congress intended that deportation should be deferred for the six-month period and section 106(a) (7) specifically pro- vides that, [N]othing in this section shall be construed to re- quire the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judi- cial review of the order granted by this section ..." Under section 106(a) (3), there is an automatic stay of depor- tation once the review action is begun and the petition for review is served on the appropriate Service officer. If an attorney needs a respite to formulate and file his petition for review under sec- tion 106(a), he has an adequate remedy in an application to the District Director for a stay of deportation under 8 CFR 243.4. A stay by this Board under such circumstances is unwarranted. ORDER: The motion for reconsideration is denied.