Matter of Yeung, Interim Decision Number 2036

• Decision Date: 24 March 1970
• Docket Number: Interim Decision Number 2036,A-15750231
• Parties: MATTER OF YEUNG In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

13 I&N Dec. 528

MATTER OF YEUNG

In Deportation Proceedings

Interim Decision Number 2036

A-15750231

Board of Immigration Appeals.

Decided by Board March 24, 1970

(1) A special inquiry officer has authority under current regulations to reopen deportation proceedings for the limited purpose of considering a new grant of voluntary departure to an alien who had permitted a prior grant of that privilege to expire; however, such authority does not empower a special inquiry officer to fix the departure time when authorizing voluntary departure anew.

(2) While ordinarily voluntary departure should not be granted anew in crewmen cases in the absence of strong extenuating circumstances—such as the presence of close family relationships in this country or where it appears that the failure to depart was due to circumstances beyond the alien's control—, each case must be determined on its own facts, and in exercising discretion a special inquiry officer must appraise the factors which led to the delay. In the instant case, voluntary departure is granted anew by the special inquiry officer based upon his conclusion that respondent could reasonably have construed as extensions of voluntary departure time the Service letters advising him that he would be permitted to remain in the United States pending Congressional consideration of private bills introduced in his behalf.

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

ON BEHALF OF RESPONDENT: John L. Murff, Esquire, 225 Broadway, New York, New York 10007, (Brief submitted)

ON BEHALF OF SERVICE: William B. Gurock, Trial Attorney

Charles Gordon, General Counsel, (Brief submitted)

This appeal raises three questions: (1) whether a special inquiry officer has power under current regulations¹ to reopen deportation proceedings for the limited purpose of considering a new grant of voluntary departure to an alien who had permitted a prior grant of that privilege to expire; (2) whether, if he has such power, the special inquiry officer may also fix the departure time; and (3) whether, on the facts of this case, relief should not have been denied in the exercise of discretion.

The facts are not in substantial dispute. Respondent is a 22-year-old unmarried male alien who was admitted to the United States as a crewman on January 22, 1966 and has remained here since. At a hearing before a special inquiry officer at which he was represented by counsel, he conceded deportability on the above-stated charge. In an order dated December 20, 1967, the special inquiry officer granted respondent's application for voluntary departure, with an alternate order for his deportation if he failed to depart when and as required by the District Director. His application under section 243(h) of the Act for withholding of deportation to Hong Kong, the alternate place of deportation, was denied. Respondent did not appeal.

The District Director fixed February 7, 1968 as the limit for voluntary departure. On respondent's failure to depart, a warrant for his deportation was issued on February 9, 1968.² On the same day, the District Director wrote him that since a private bill in his behalf was under Congressional consideration, he would be permitted to remain in the United States until February 1, 1969, or 30 days following adverse action on the bill, whichever occurs sooner.

The private bill was not enacted and on February 19, 1969 the District Director wrote respondent that arrangements for his deportation would be made on or about March 2, 1969. In the interim, another private bill had been introduced in respondent's behalf. On February 24, 1969 the District Director wrote respondent that he would be permitted to remain until February 1, 1971 or 30 days following adverse action on the bill whichever occurs sooner. On June 26, 1969 the District Director wrote respondent that adverse action had been taken on the private bill and that steps were being taken to effect his deportation. On July 17, 1969 he was notified to surrender on July 28, 1969 for deportation to Hong Kong.

On July 24, 1969 respondent filed a motion asking that the voluntary departure privilege be restored and that he be permitted to surrender and depart under safeguards upon purchasing his own transportation; or in the alternative, that the deportation proceedings be reopened to permit a new application for voluntary departure before a special inquiry officer. The District Director declined to restore voluntary departure³ and a hearing was held by the special inquiry officer on the motion to reopen.

The Service's trial attorney opposed reopening on two grounds: First, that under the amended Service regulations, the special inquiry officer lacked power to grant voluntary departure anew; and second, that in any event this relief should be denied in the exercise of discretion because respondent had allegedly resorted to dilatory practices to ward off his enforced departure. Respondent's attorney contended that not only respondent but also he himself had been misled by the Service's letters into believing that what was being granted during the pendency of the private bills was an extension of voluntary departure time rather than a stay of execution of a deportation order.

On July 29, 1969, in a detailed and well-considered opinion, the special inquiry officer concluded that he has jurisdiction to grant voluntary departure anew and that such relief was warranted on the facts of this case. To avoid the possibility of further appeal or litigation, the special inquiry officer entered an order which, in form, denied the motion to reopen but which provided further that "if [respondent] leaves the United States within the period of seven days from the date of this order, namely, on or before August 6, 1969, the order of deportation will be deemed to have been simultaneously lifted and the respondent will be deemed to have departed from the United States under an order of voluntary departure in lieu of deportation." It is this order which is before us on appeal by the Service's trial attorney.

In practical effect, despite its negative form the special inquiry officer's order affirmatively granted voluntary departure anew and fixed the departure time. Viewed in this light, the order poses the three issues stated in the opening paragraph of this opinion.

In presenting the Service's views on this appeal, its General Counsel has receded from the position taken by the trial attorney on one of the issues. In his memorandum in lieu of oral argument, the General Counsel states that it is the Service position that under current regulations the special inquiry officer does have power to reopen and to grant voluntary departure. The General Counsel insists, however, that in the exercise of discretion as a general policy the privilege of voluntary departure should be granted only once, in the absence of very strong extenuating circumstances, which he feels are lacking here. Finally, the General Counsel argues that under the current regulation, only the District Director has power to fix the departure time when voluntary departure is thus granted anew.

The first two questions involve regulations promulgated by the Commissioner of Immigration and Naturalization governing procedures in deportation cases and the powers of Service officers with respect to such cases. The authority of the Commissioner to adopt such regulations cannot be seriously disputed.⁴ What confronts us is the proper construction of those regulations.

Originally, the special inquiry officer did not fix the time for voluntary departure, since the regulation empowered him only to authorize...