Interim Deeidion #1478
Manna or Mamma' -
In •DeportationProCeedings:.
A-13932037
Decided by Board Arai 8, 1986
Since the grant of voluntary departure is a matter of discretion and admini istratIve grace, respondent's refusal at the deportation hearing to answer
questions directed to him bearing on his application for voluntary departure
is a factor which the special inquiry officer may consider in the exercise of
-such discretion.
Carrams:
Order: Set of 1952—Section 241(a) (1) ES U.S.C. 1251(a) (1))—NonimmiSrant-=No appropriate nonimmigrant documentation.
The respondent, a native and citizen of Italy, appeals -from an
order entered by the special inquiry officer on March 8, 1965 directing
his deportation on the charge stated in the -order to show cause. An
application for voluntary departure. in lieu of deportation was denied. Exceptions have been taken to the denial of the respondent's
application for voluntary departure.
• The respondent concedes that he is an alien who entered the
United States at an unknown port along the Canadian border on or
about May 1, 1961 and that he intended to visit in the United States
at the time of his-last entry (pp. 2 and 3). The respondent refused
to admit allegation No. 5 of the order to show cause, to wit,;You
were not in possession of a valid nonimmigrant visitor visa." An
affidavit executed by the respondent on March 17, 1965 and entered
in evidence as exhibit 2 reads in part as follows: "I did not have any
paper or document which would permit me to enter the United
States. I just had my Italian Passport (when) I entered the United
States . . . at night on April 30, or May 1, 1964 as a passenger on a
train from Montreal, Canada." We conclude on the basis of the
respondent's admission that he is deportable as oharged in the order
to show cause. -
The'respondent applied for the privilege of volutary departure in
Interim Decision #1478
lieu of deportation. • The special inquiry officer assumes that the respondent is statutorily eligible 'for that•privilege. Voluntary depaiture is denied because of the respbedent's" unwillingness to answer
questions at the hearing. The special inquiry officer cites the case of
Kim v. Rosenberg, 363 13.S. 405, 4 Lid. 2d 1299, June 13, 1960, as
authority for refuiing as a matter of discretion to grant the application for voluntary departure.
Counsel on appealmaintains that the rule set forth in the Supreme
Court's decision in the case of Kim T. Rosenberg (stipra) is not applicable to the insteht ease. and that it was error onr the part of the
Special inquiry officer to rely upon it as a ground lei deifying discretionary relief. Counsel maintains tbat Kim's refusal to answer
questions concerning whether he was a membei of the ComMunist
Party had a direct bearing on his "statutory eligibility for suspension
of deportation whereas the respondent herein has met the burden of
establishing his statutory eligibility for voluntary departure. Counsel urges that if the respondent had submitted to a detailed interrogation with regard to his entry without documents ha risked
making harmful admissions which could later be used against him .
in a criminal prosecution.
The issue before us may be compared with that before the Supreme Court in the case of Orloff v. Willoughby,
, 97
Led. 842. Orloff in habeas corpus proceedings sought his discharge from the Army or in the alternative the grant to him of a
commission as a medical officer. After Orloff's induction, under a
special law relating to doctors, he applied for a -commission and
when asked concerning membership in the Communist Party of the
United States or other organisations on. the list designated by the
-Attorney General as subversive, he claimed his privilege against
self-incrimination. The commission was denied him but he was retained in the Army and assigned to medical work in a noncommi.s-
sion status. The Court held that the grant of a commission ion at a
medical officer is discretionary with the President of the 'United
States. The Court in its opinion said:
It is argued that Orloff is being punished for having claimed a privilege
which the Constitution guarantees. No one, at least no one on this court
which has repeatedly sustained assertion by Communists of the privilege
against self-incrimination, questions or doubts all Orloff's right to withhold
facts about Dims= on this ground. No one believes be can be punished for
doing so. But the question is whether he can at the same time take the position that to tell the truth about himself would incriminate him and that
even so the President must appoint him to a post of honor and trust. We
have no hesitation in answering that gnestion "no". (845 U.S. at p. 91, 97
Led. 848.)
Interim Decision #1478
• The grant of voluntary departure is -a matter of discretion and of
administrative grace on the part of the sovereign. An applicant for
administrative grace must upon the request of the Attorney General
or one acting in his behalf, supply such information that is within
his knowledge and has direct bearing on his application for dis- •
cretionary relief. We do not question the respondent's claim that he
was justified in his refusal to answer the questions directed to him
by the special inquiry officer. His refusal to answer the questions
propounded to him, however, is a factor which may be considered
by the special inquiry officer in exercising the discretion granted by
the statute. Under the circumstances we find no error -on the part
of the special inquiry officer in relying upon the case of Kim v.
Rosenberg (supra) in denying the respondent's application for voluntary departure. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same it hereby
dismissed.
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