Discretionary relief — Voluntary departure.
(1) An alien who during the hearing under the warrant of arrest indicates his intention to depart from the United States within 3 weeks, is allowed an opportunity by the hearing officer to make arrangements for such departure, and who thereafter takes no steps within the stated period of time to effectuate his departure from the United States, does not merit a further chance at this form of relief.
(2) An alien should be accorded a reasonable period of time, usually a period not less than 30 days, to effectuate his voluntary departure from the United States ( Matter of M----, 4 IN Dec. 626). However, if he has signified his willingness and intention to depart within 3 weeks, it may be considered that such a period is appropriate to the circumstances of his case. His failure to depart within such period of time, when the opportunity is allowed him, militates against a further grant of this privilege and his deportation will be ordered.
CHARGE:
Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
Discussion: These are appeals from orders of the Assistant Commissioner of November 29, 1951, directing deportation. In his consideration of the cases, the Assistant Commissioner concluded that no discretionary relief was warranted.
These cases have been argued jointly before us by counsel for the respondents and for that reason we will consider the cases together. The only application made to us was that voluntary departure be authorized within the next 30 to 35 days. In both cases the respondents came as visitors, remained here after their temporary admission expired, during the course of the hearing were accorded an opportunity to depart voluntarily, did not do so, and are now asking for a second chance to effect voluntary departure. Before discussing in detail the facts in each case, it is pertinent to quote the standard applicable in situations such as presented in these cases, and found in the Matter of M----, 4 IN Dec. 626, decided by this Board on April 22, 1952. This decision was rendered after the decision by the hearing officer, the Assistant Commissioner and, in fact, after oral argument by counsel before this Board. It, however, is not the announcement of new principles but a restatement of principles which served as a criteria in judging whether voluntary departure should or should not be granted in the case of aliens who have had relatively short residence in the United States. That part of Interim Decision No. 352 ( 4 IN Dec. 626), pertinent to these cases is as follows:
If an alien, after apprehension in deportation proceedings and prior to the hearing in the deportation case, has been given an opportunity to depart voluntarily within a reasonable time, usually at least 30 days, he does not merit a further grant of departure by the hearing officer unless he gives good and sufficient reasons why he did not or could not depart when granted that opportunity. Likewise, if voluntary departure is granted by the hearing officer at the hearing, or if at that hearing the alien makes it clear he does not wish voluntary departure within a reasonable time, this Board will not grant voluntary departure in the absence of very strong and persuasive reasons to support contrary action. The purpose of this limitation is apparent. An alien should not be permitted to prolong his illegal presence in this country by failure to apply for or accept voluntary departure until he has brought his case, through various procedural steps, to the last authority where such relief may be granted.
In each case the respondent was given approximately 3 weeks to effect voluntary departure, and not the 30 days mentioned in the above quotation. However, we said that usually a period of 30 days should be granted. The sole issue before us is whether the facts in each case merit giving the respondents another opportunity to effect voluntary departure. In this connection, we do give consideration to the question of whether the 3-week period was adequate in view of the circumstances of each case.
Considering the facts in each case individually, the respondent V---- M---- entered the United States June 19, 1948, and was admitted as a visitor to August 27, 1948. He was granted an extension to November 27, 1948, and has remained here since that time. There is no question he is subject to deportation, and that is conceded by counsel. The first hearing under the warrant of arrest was accorded V---- M---- September 13, 1951. His counsel was not then present and he indicated he desired an opportunity to have his attorney with him at the hearing. The hearing officer asked him if he waived his right to be represented by counsel, and he replied: "No. I hope to leave from this country in 3 weeks as soon as I get my papers ready." The hearing officer then asked if he was to understand that the respondent V---- M---- was applying for the privilege of departure in lieu of deportation, and the answer was "Yes." He was asked if he had obtained reservation on a steamship or plane. He answered, "Not yet because at first I need the papers and you hold the passport. I even had talked with the Italian consul already." He added he did not have a steamship ticket, but did have the money with which to purchase one. The following question and answer appear:
Q. You are positive that you will depart from the United States within the next 3 weeks?
A. Yes; I will.
The hearing officer then informed the respondent that he was disposed to permit him to depart from the United States if the respondent presented to the hearing officer within the next 2 weeks satisfactory evidence that arrangements had been made for his departure from the United States on or before October 8, 1951.
The hearing was continued on October 8, 1951. Respondent's counsel was present. Counsel on behalf of the respondent stated that the respondent desired to have his stay in the United States adjusted, and that the respondent had not made application for his ticket to Italy or to any other country. The respondent when testifying said he had renewed his passport but did not go to any travel agency to obtain passage out of the United States. The following question and answer appear in the record:
Q. What is your intention at the present time with respect as to the length of time you wish to remain in this country?
A. Just as Mr. Metro said before. I intend to remain here in the United States just to find out about my first — I had one extension denied — and that is the reason for it.
The respondent has not been employed in the United States, and it is said by counsel that he is studying commercial art though not in any recognized school.
The facts in the case of the respondent D---- M---- M---- are substantially the same. D---- M---- M---- was admitted at New York, March 2, 1949, as a visitor to June 1, 1949. He received one extension to September 1, 1949. In this case likewise it is perfectly clear the respondent is subject to deportation, and that is not contested. D---- M---- M---- too was granted a first hearing on September 13, 1951. His counsel was not present. He also was asked if he wished to be represented by counsel during the hearing, and replied "Yes." He was then asked if he waived his right to be represented by counsel, and he answered: "No. I would like to say that I expect to leave the United States in 2 or 3 weeks because I will leave on an Italian boat — I prefer an Italian boat — and any way I will leave the United States and that is absolutely right." The hearing officer asked D---- M---- M---- if he understood he was making application for voluntary departure. D---- M---- M---- said "Yes." The hearing officer then said that he would grant the respondent an opportunity to depart within 3 weeks; otherwise the hearing would be continued. The hearing was continued on October 10, 1951. Counsel was present. In this case as in the case of V---- M---- counsel made a statement for the record in which he said that D---- M---- M---- wished to have his stay in the United States, if legally possible, adjusted. Counsel also said that D---- M---- M---- had not made application for his ticket to Italy or to any other country. The hearing officer asked the respondent D---- M---- M---- if there was any reason why he did not leave the United States, and he replied: "Yes; because I am trying to stay here as long as possible and the legal way, if the law will permit." D---- M---- M---- likewise testified he had not been employed in the United States, but receives funds from his family abroad.
As to both respondents who have none of the family ties in this country mentioned in section 19 (c) of the Immigration Act of 1917, as amended, and have been here but a few years, adjustment of status to permanent residents is impossible. There is not even a colorable basis for adjustment of status to a permanent residence basis, and a claim that the respondents wished to remain to litigate this issue must be regarded as frivolous. True, the hearing officer did not authorize the usual 30-day period for voluntary departure, but his reason for granting 3 weeks is apparent. Each respondent said he would depart within that time. Other than securing an extension of passport validity, no steps were taken by either respondent to arrange for voluntary departure. If initially given 30 days to depart, the result obviously would have been the same.
In argument before us as to why the respondents did not depart when given an opportunity to do so, counsel says that the respondents acted on bad advice given by some unknown third party. Counsel is very vague and unconvincing in this explanation.
In both of these cases, we feel that each respondent had a fair opportunity, in view of the circumstances in their respective cases, to effect voluntary departure and did not take reasonable steps to do so. Therefore, we believe the order of deportation should not be disturbed.
Order: It is ordered that the appeals be dismissed.
Dissent: ROBERT E. LUDWIG, Member
I disagree with the decision of the majority directing that the respondents named above be deported. In my opinion the request of counsel that they be granted a period of 30 days within which to depart without the issuance of an order of deportation and at their own expense should be granted.
The majority in its decision in effect restates Interim Decision No. 352 of April 22, 1952, in support of the position that it has taken in directing that these respondents be deported. Careful examination of Interim Decision 352 shows that it has no application to the instant case.
Although the majority decision goes over some of the facts in the case, there are other equally pertinent facts which have not been discussed which should be controlling. Of particular importance is the fact that these respondents appeared at the Immigration Office at Newark, N.J., of their own volition and in order to inquire about their immigration status and with a desire of complying with the immigration laws. A warrant of arrest was issued with respect to V---- M---- on December 15, 1950, and with respect to the alien D---- M---- M---- on June 7, 1951. Both aliens were called before Inspector Boteilho for hearing on September 13, 1951. Both aliens stated that they did not wish to proceed without an attorney and refused to waive their right to be represented by counsel. Alien V---- M---- stated as follows:
Q. Am I to understand that you are now applying for the privilege of voluntary departure in lieu of deportation?
A. Yes.
Q. Have you obtained reservation on a steamship or plane?
A. Not yet because at first I need the papers and you hold the passport. I even had talked with the Italian consul already.
Q. On what ship do you expect to depart from this country?
A. Maybe I go back to Italy or maybe I will go some other place. I will go by boat.
Q. Do you have a steamship ticket?
A. Not yet. I have to buy it.
Q. Do you have any money with which to buy a steamship ticket?
A. Yes.
Q. You are positive that you will depart from the United States within the next three weeks?
A. Yes; I will.
Q. In view of the fact that you do not waive your right to be represented by counsel during this hearing, I will adjourn the hearing to October 8, 1951, at 10:00 a.m., at this office at which time you should be accompanied by your counsel. If you are not accompanied by counsel the hearing will then be resumed without counsel. Do you understand that?
A. Yes.
Q. However, since you have asked for the privilege of voluntary departure without expense to the Government I am disposed to permit you to depart from the United States if you present to me as soon as possible and within the next two weeks satisfactory evidence that arrangements have been made for your departure from the United States on or before October 8, 1951. Is that understood?
A. Yes.
Alien D---- M---- M---- statement follows:
Q. Do you waive your right to be represented by counsel during this hearing?
A. No. I would like to say that I expect to leave the United States in two or three weeks because I will leave on an Italian boat — I prefer an Italian boat — and any way I will leave the United States and that is absolutely right.
Q. Am I to understand then that you are making application at this time for the privilege of voluntary departure from the United States?
A. Yes.
Q. As you are not represented by counsel and do not waive appearance of counsel during this hearing, I will adjourn this hearing until October 8, 1951, at 9 a.m., at this office at which time the hearing will be resumed whether or not you are represented by counsel. However, if you present to me evidence to indicate that you will depart from this country within the next 3 weeks, I am disposed to authorize such voluntary departure. Do you understand?
A. Yes sir.
It is noted that in this statement neither alien was definitely given the privilege of departing. The hearing officer merely stated that he was disposed to permit such departure. In the file as exhibit 3 in each case is an agreement signed by the alien, the hearing officer and the officer in charge. The pertinent part thereof following. Since it is identical in each case it is quoted but once:
"I further state that I have been informed of my right to adjudication of the issues in my case on the basis of the hearing which has been accorded me, but that it is my desire to depart from the United States voluntarily without further proceedings under such warrant of arrest and I hereby waive such further proceedings.
V---- M---- D---- M---- M----
The application above is hereby approved under authority of
8 C.F.R. 150.3, conditioned upon your showing to the undersigned on or before September 25, 1951, that you have appropriate travel documents and transportation to the country of your destination.
Hearing Officer.
Since this apparently was prepared after the hearing officer's statement during the course of the hearing it is presumed that it takes precedence over the statement contained therein that the hearing officer was "disposed to grant respondent 2 weeks within which to present evidence of his intention to depart."
Particular attention is called to the fact that exhibit 3 granted the respondent but 12 days within which to present evidence of possession of travel documents and transportation.
Hearings were resumed on October 8, 1951, 25 days later at which time counsel was present. Respondent V---- M---- stated that he had proceeded with arrangements to depart to the extent of having his passport renewed. No inquiry was made of respondent D---- M---- M---- with regard to what effort he had made. Both respondents renewed their request that they be permitted to leave the United States voluntarily and at their own expense and stated that they were ready to leave at once. The hearing examiner in his summary of the case at which time he denied the request for voluntary departure stated as follows:
You were granted the privilege upon your request of voluntarily departing from the United States, such departure to have been within 3 weeks of the opening of this hearing. You have failed to depart from this country.
This statement of the hearing examiner is incorrect. According to exhibit 3 which has been quoted, the aliens were granted 12 days within which to present evidence of possession of travel documents and transportation. Nothing whatever was stated with regard to the actual date upon which departure should take place.
The state of the record with regard to what was required of the alien is so confusing as to make impossible a definite conclusion. Certainly it would be far more confusing to the respondents, aliens of no background in the immigration laws and regulations and even though they speak English it is not their native tongue. We have first the hearing examiner's statement in the hearing that the aliens would be granted 2 weeks in which to present evidence that arrangements had been made for their departure but at the same time a further statement that the hearing was adjourned until October 8. We have second, a statement in exhibit 3 that the aliens would be granted 12 days within which to present evidence of possession of transportation and travel documents, and we have third, the statement in the hearing officer's summary to the effect that the aliens had been granted 3 weeks within which to depart from the United States.
We do not have here the case of aliens who have played fast and loose with the immigration laws, we have the cases of two aliens who entered the United States lawfully as temporary visitors under section 3 (2) of the 1924 act. They were art students and came here for the purpose of studying art, particularly in the commercial field. The only violation of the law consists of overstaying the time of their admission. They have never worked, having been supported exclusively by funds sent them by their parents. In the utmost of good faith they appeared to the immigration office in Newark, N.J., for the purpose of making inquiry concerning their status. Interim Decision No. 352 ( supra), contemplates that an alien may be granted at least 30 days within which to leave the United States. This is granted even in flagrant cases provided the respondent did not intend to remain permanently in the United States at the time of arrival. This case is not a flagrant one, nor were the respondents granted 30 days within which to depart. In fact they were granted no specific time within which to depart. The record shows that in one instance the hearing examiner said 2 weeks and at another time, 12 days within which to present documents and transportation. At the time of the hearing he stated they had been granted 3 weeks in which to depart but in no place in the record is this statement otherwise supported. The case is not controlled by Interim Decision No. 352 and the action of the majority is directly contrary in both the spirit and the letter of that decision.
Of interest is the Board's decision in Matter of E----, A-8190438, June 3, 1952, where the respondent, a Greek seaman entered the United States on February 5, 1950. He alleges that he attempted to reship from the United States, but that evidence to say the least is weak. He purchased an automobile in May 1951 and has been employed continuously since his arrival. The hearing examiner granted the respondent 10 days within which to leave the United States. Due to his failure to comply with that therewith a further grant of time within which to depart was denied and he was ordered deported. The Board in its decision has held that a grant of 10 days was insufficient, reversed the decision and directed that respondent be given a full period of 30 days within which to depart. This was done notwithstanding the fact that the alien flagrantly violated the terms of his admission not only by overstaying his time but by immediately accepting employment. It is presumed that had he not been apprehended his illegal status would still be undiscovered.
In the instant case, in view of the technical matter of the violation of the immigration law on the part of these respondents, the indefinitness and confusion involved in the time they were allegedly granted within which to present evidence of intention to depart and continued desire to leave at once and at their own expense, it is my opinion that the request of counsel that they be permitted to leave immediately should be granted.
Attention is also called to the fact that their departure at their own expense would save the Government in appropriation the cost of their deportation, which according to current rates would amount to at least $500.