Interim Decision #1580
11.Axaxn or Nnatorrs
Section 215 Proceedings
A-14418456
Decided by Regional Commissioner Apra 12, 1965
The departure of a permanent resident alien who seeks to abandon her residence here and return to her native country will not be prevented since it
has not been established under the Drovitdons of
22 US 41111
(g) that she is
"needed" in a criminal proceeding in a court in the 'United States when she
is not the subject of such proceedings, it has been determined the Government does not intend to present her therein as a witness, and it is not
. known whether she will be Used as a witness by the defendant.
This matter. is before the Regional Commissioner under the authority contained in 22 CFR 46.5(d) frn. final decision on the special
inquiry officer's order of. March 26, 1966, recommending that the
alien not be prevented. froni.deparbing from the United States of her
own volition and at her own expense.
The applicant is-a, married German citizen, born September 12,
1947, at Magdeburg, Germany. Ifer husband is a United States citizen serving with the armed forces in Vietnam. The alien was admitted to the United States for permanent residence on September
26, 1965. She now wishes to abandon her residence in this country
and return to her parents' home in Germany, where her infant son
is also residing. She has stated that her mother, who has been caring for the child, is ill and must undergo surgery; that she is fearful
she may lose custody of her son if she is not there to look after him.
Under the provisions of 22 CFR 46.3(g), the departure of an alien
who is needed in the United States-as a witness in, or as a party to,
any criminal ease undei investigation or pending in a court in the
United States shall be deemed prejudicial to the interests of the
United States and may be temporarily prevented. The applicant
herein was served with a notice of temporary prevention of departure on March 4, 1966, on the basis of representations by the United
States Attorney's office for the District of Connecticut that her pres-
.
599
Interim Decision #1580
ence is required in a criminal case presently pending in the United
States District Court for the District of Massachusetts.
Subsequent to the service on the alien of the written notice temporarily preventing her departure, the office of the United States
Attorney for the District of Massachusetts in a letter dated March
14, 1966 to the United States Attorney at Hartford stated; in part, as
follows:
Although this office does not intend to present Mrs. Nimmons as a witness on
behalf of the Government, we believe that since the second count of the indictment recites a capital offense, all efforts should be expended to have her available at the time of trial. At the present time we have no way of knowing
whether the defendant will use this witness in his behalf.
hearing in. this matter was conducted before a special inquiry
officer in accordance with the provisions of 22 CFR 46.5. In his decision, the Special inquiry officer has indicated that there are no deportation proceedings presently pending' against the applicant and,
on the basis of the record, there appears to be no chaios on which
she inight•be fewad deportable. He has further Tinted that the alien
is not the subject of criminal' proceedings but may possibly be used
therein as a witness. In this connection, the special inquiry officer
has called attention to the fact that the departure of an alien can be
temporarily prevented when such 'alien' is "needed in the United
States as a witness in, Or as a party to, any criminal case under inVestigation: or pending in'a 'court in the United States . ." (Emphasis supplied.) The special inquiry officer has determined that the
applicant. wishes 'to depart and live permanently with her parents
and child'in Germany; that she has sufficient funds to defray the
cost of her passage; that it has not been established she is "needed"
as a witness in a criminal case; that she'ehould not be deprived of
her right to return to her native land. on; the basis of Mere conjecture
that 'she might be called as witness for the defendant in a 'pending
criminal prosecution. "
The record in this matter has been carefully reviewed in the light
of the special inquiry officer's fiindinge of fact and conclusions of law.
We concur in his recommended order that the applicant should not
be prevented from departing froth the United States of her own
volition and at her own expense. Aiitording,ly, the following order
will be entered.
ORDER :,It is ordered that the make of temporary prevention of
departure dated March 4, 1966, be and the same is hereby canceled.
