Matter of Wang

• Decision Date: 05 November 1980
• Docket Number: A-14957191,Interim Decision Number 2834
• Citation: 17 I&N Dec. 565
• Parties: MATTER OF YIH-HSIUNG WANG In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 565

MATTER OF YIH-HSIUNG WANG

In Deportation Proceedings

Interim Decision Number 2834

A-14957191

Board of Immigration Appeals.

Decided by Board November 5, 1980

(1) The Board of Immigration Appeals has no appellate jurisdiction over a District Director's denial of pre-hearing voluntary departure or his denial of a respondent's post-hearing request for an extension of his voluntary departure period, and any challenges to such denials must be raised in Federal Court. See 8 C.F.R. 242.5(b) and 244.2.

(2) The voluntary departure of a respondent from the United States pursuant to an immigration judge's order after the District Director's denial of his request for an extension of the voluntary departure period imparts a finality to the deportation proceedings and results in the alien's departure being considered "in pursuance of law." See section 101(g) and 106(c) of the Immigration and Nationality Act.

(3) The respondent, who voluntarily departed from the United States accompanied by counsel, could not thereafter successfully move to reopen the prior deportation proceedings to raise issues which should have been presented prior to departure. Mendez v. INS, 563 F.2d 956 (9 Cir.1977), distinguished.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student— remained longer than permitted

ON BEHALF OF RESPONDENT: Frank S. Pestana, Esquire, Kidwell & Pestana, 4214 Beverly Boulevard, Suite 223, Los Angeles, California 90004.

ON BEHALF OF SERVICE: Gerald S. Hurwitz, Appellate Trial Attorney.

William F. Nail, Trial Attorney.

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members.

The respondent appeals from the October 29, 1979, decision of the immigration judge denying his motion to reopen deportation proceedings. The appeal will be dismissed.

The respondent is a 29-year-old native and citizen of China. He first entered the United States in March 1966 as a nonimmigrant student. He departed the United States for short periods in 1971 and 1974. He apparently reentered on both occasions in a nonimmigrant student status. In February 1977, the respondent's United States citizen brother filed a visa petition on his behalf that was approved in September 1977. In August 1977, the respondent married a lawful permanent resident, who also filed a visa petition on his behalf. This "second-preference" visa petition was approved in February 1978.

The respondent had worked without Service permission in 1977 and was ineligible for adjustment of status under the provisions of section 245 of the Act, 8 U.S.C. 1255. See section 245(c)(2). The approved "second-preference" visa petition, therefore, was forwarded to the United States Consulate at Winnipeg, Canada, for processing. The consulate apparently declined to accept jurisdiction over the case unless the Service would provide assurances that the respondent would be permitted to remain in the United States pending the processing of the application for permanent residence. The District Director having jurisdiction over the respondent's case, however, refused to grant "voluntary departure prior to commencement of hearing," the procedure under which certain aliens are permitted to remain in the United States until visa processing is completed at a consulate. See 8 C.F.R. 242.5 (1977); Operations Instruction 242.10(a)(1) (1977). This decision was discretionary and, by regulation, no administrative appeal was permitted from the denial. See 8 C.F.R. 242.5(b) (1977).

An Order to Show Cause was issued in May 1978 charging the respondent with being deportable under section 241(a)(2) as an "overstayed" student. At proceedings held on July 25, 1978, the respondent, who was represented by counsel, conceded deportability. He was granted some 3 months in which to voluntarily depart from the United States, the sole discretionary relief requested. No appeal was taken from this decision. Subsequent to the deportation hearing, the respondent sought an extension of the voluntary departure period so that the processing of the visa in Winnipeg could be accomplished. The District Director, who had declined to grant such relief prior to the issuance of the Order to Show Cause, continued in his refusal. This discretionary decision not to extend the voluntary departure period was within the sole jurisdiction of the District Director and was not reviewable administratively. See 8 C.F.R. 244.2 (1977). On October 27, 1978, the last day of the voluntary departure period granted by the immigration judge, the respondent, accompanied by counsel, departed from the United States to Mexico.

On November 11, 1978, the respondent apparently reentered the United States without inspection. Thereafter, on April 10, 1979, through counsel, he moved to reopen the July 1978 deportation proceedings. The respondent sought either the opportunity to apply for suspension of deportation pursuant to section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1), or an additional grant of voluntary departure so that processing of the visa in Winnipeg could be accomplished. The immigration judge denied the motion on October 29, 1979,...