Interim Decision #1233
MATTER OF CHANG
In DEPORTATION Proceedings
A-8227986
Decideclby the Board July 41962
A special inquiry officer's order directing deportation if the alien failed to depart
voluntarily within the time allowed became final when respondent did not
appeal within the time allowed. (8 CFR 243.1) Upon failure to depart as
notified, sespondent was served with a final order of deportation issued
pursuant to the 1952 Act at a time when he was ineligible for suspension of deportation under section 244(a) of that Act. He is, therefore, precluded from
qualifying for suspension of deportation under any of the subsections now
in effect.
CHARGES
Warrant: Act of 1924--no immigration visa
Lodged: Sec. 241 (a) (9) of the I. & N. Act (8 U.S.C. 1251(a) (9) )—Failed to
comply with conditions of admission—seaman.
The case comes forward on appeal from the order of the special
inquiry officer dated May 14, 1962, denying respondent's motion to.
reopen the deportation proceedings to permit application for suspension of deportation under sexton 244 of the Immigration and Nationality Act..
The record relates to a native and citizen of China, 49 years old, male,.
who last entered the United States at the port of New York on May 5,
1951, and was admitted as a seaman under section 3 (5) of the Immigration Act of May 26, 1924, for the amount of time the ship remained in
port, not to exceed 29 days. A warrant of arrest was served on the
respondent on February 18, 1952. He was accorded a deportation
hearing during the course of which he was represented by counsel
and at the conclusion of the hearing on May 11, 1953, the special inquiry officer entered an order finding the respondent to be subject to
deportation solely on the lodged charge set forth above and granted
him the privilege of voluntary departure in lieu of deportation, with
the further order that if he failed to depart as required, the privilege
of voluntary departure should be withdrawn without further notice
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Interim Decision #1233
or proceedings and the alien deported from the United States in the
manner provided by law on the lodged charge. By letter dated June 9,
1953, counsel for the respondent was supplied with a copy of the hearing record, decision and order of the hearing officer and was informed
that the order was final unless an appeal was taken to the Board of
Immigration Appeals within five days. No appeal was taken. On
July 17, 1953, the respondent and his counsel were notified by mail
that the respondent should arrange to depart from the United States
on or before August 19, 1953, and that if he did not avail himself of
the voluntary departure privilege extended to him, he would be deported from the United States forthwith pursuant to law. Apparently the respondent failed to depart voluntarily and on August 20,
1053, a warrant of deportation was issued. The warrant of deportation however was erroneously based upon the warrant charge instead
of the lodged charge upon which respondent had been ordered
deported.
It does not appear that the deportation of the respondent was ever
effected. On April 5, 1962, counsel for the respondent filed a motion
to reopen the proceedings in order that the respondent might be permitted to make an application for suspension of deportation under
section 244 of the Immigration and Nationality Act, as a,mended,
supporting the motion with an affidavit of the respondent to the effect
that on February 1, 1962, he married a naturalized citizen of the
United States, that he has resided in the United States since 1951,
and alleging that if he were deported to Hong Kong, he would suffer.
unusual hardship.
All the subsections of section 211(a) of the Immigration and Nationality Act which relate to suspension of deportation, except subsection (1) which is no longer applicable, contain, as a condition precedent to eligibility, the clause that the alien "has not been served with
a final order of deportation issued pursuant to this Act in deportation
proceedings up to the time of applying to the Attorney General for
suspension of deportation." In the instant case the respondent was
given voluntary departure with an alternate order of deportation by
the special inquiry officer on May 11, 1953, and on June 9, 1953, was
informed by the District Director of the order of the special inquiry
officer and was given five days after receipt within which to appeal.
No appeal was taken.
By regulations, 8 CFR 243.1, an order of deportation, including an
alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under part
242, shall become final upon (1) dismissal of an appeal by the Board
of Immigration Appeals, (2) upon waiver of appeal, or (3) upon
expiration of the time alloted for an appeal when no appeal is taken..
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Interim Decision #1233
The respondent herein failed to appeal and the order of the special
inquiry officer became final. Upon his failure to depart us notified
by August 19, 1953, a final order of deportation pursuant to the Immigration and Nationality Act had been served upon the respondent
prior to the time of the application for suspension of deportation us
provided by sections 244(a) (2), (3), (4) and (5) of the Act. The
purpose of the requirement therein that the alien shall not have been
served with a final order of deportation precludes suspension of deportation where the alien, . is not eligible for such relief at the time of
such final order.-
In the instant case the respondent, who last entered the United
States on May 5, 1951, was, at the time of his deportation hearing on
May 11, 1953, nui, eligible for suspension of deportation. A final order
of deportation under the Act has been entered? Under the circumstances the respondent is precluded from now applying for suspension
of deportation. The appeal 'front the order of the special inquiry
officer denying the motion to reopen will be dismissed.
ORDER: It is ordered that-the appeal from the order of the special
inquiry officer dated May 14, 1962, denying the motion to reopen the
proceedings' e and the same is 'hereby dismissed.
1 Matter of C—L--, 7 I. & N. Dec. 137; Matter of 0—, 7 I. & N. Dee. 457.
Notice is taken of the fact that the warrant of deportation was based upon
an erroneous ground, to wit, the warrant charge instead of the lodged charge.
However, 8 ME 243.1 and 8 CPR 2432 illustrate the distinction between a final
order of deportation and a warrant of deportation. The error in the warrant
of deportation may be corrected administratively.
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