Interim Decision #1699
MATIER OF VORRIAS
In Deportation Proceedings
A-15154704
Decided by Board February 9,1967
As discretionary relief is the only issue in respondent's case, motion to reopen deportation proceedings predicated on Wavaby Y. Incnbigration and .3.7aturcai2a-
tion Service,
(1966), is denied since the Woodby standard is
applicable solely to the question of deportability and has no bearing on the
matter of discretionary relief. • •
CHARGE:
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Nonimmigrant crewman—Remained longer.
Orr BEHALF OF RESPONDENT : ON BEHALF OF SERVICE:
Barrett O'Hara, II, Esquire Irving A. Appleman
33 South Clark Street Appellate Trial Attorney
Chicago, Illinois 60603 (Memorandum of law filed)
This case has previously been before us and on September 21, 1966,
we sustained the respondent's appeal from an order of the special
inquiry officer denying him the privilege of voluntary departure and
ordering his deportation from the United States to Greece on the
charge contained in the order to show entisri. The Board WAS persuaded
that the respondent's application for voluntary departure was of sufficient merit and granted him such privilege. In view thereof, a full
recital of the facts is not deemed necessary herein.
A motion to reopen and reconsider these proceedings has been submitted by counsel urging that in light of the recent decision of the
United States Supreme Court in Wood by v. Immigration and Naturalization Service, 17 L.ed. 2d 362 (December 12, 1966), the Government has not met its burden of proof in the instant case requiring
that it must "establish the facts supporting deportability by clear,
unequivocal and convincing evidence." Thus, counsel for the respondent moved that the proceedings in this case be terminated.
In a Memorandum of Law, the Service outlined the respondent's
own testimony of record conceding that he was an alien; that he was
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Interim Decision * 1699
a native and citizen of Greece; that he was admitted to the United
States as a nonimmigrant crewman; and that he remained beyond
the period of time permitted for his stay in the United States; and
other testimony as to the manner and circumstances of his entry, and
as to his conduct following entry. The Service contended, however,
that since it is clear from the record that the only issue on which there
was any controversy was that of diseretio ► ary relief, and the record
makes it abundantly clear under any burden of proof that the respondent is in fact deportable, it fails to see any relevancy between
the instant case and the authority relied upon by counsel for the respondent. Also, although the respondent was granted the maximum
relief available to him in the circumstances of this case, to wit, voluntary departure, nevertheless, "he seems bent on a determined effort
to protract his legal stay in the United States." The Service requested that the instant motion be denied.
In pie T I oacrb case, supra, the Supreme Court held that the Government has the burden of proving,the facts supporting deportability
by clear, unequivocal and convincing evidence. The decision, however,
applied solely to the question of deportability and has no bearing on
the matter of discretionary relief, the only issue herein_ An alien has
the burden of demonitriding ant lie is worthy of such relief. The only
exercise of discretion available to the Board in the circumstances of
this case was voluntary departure and the respondent's application
for this privilege was granted by our earlier decision herein. We are
persuaded, therefore, from our review of this entire matter that the
contentions of respondent are without merit. Accordingly, the motion
of the respondent to reopen this matter is hereby denied.
ORDER: It is ordered that the motion be and the same is hereby
denied.
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