Interim Decision #1944
MATTER OF ARAO
In Deportation Proceedings
A-14441808
Decided by Board February 20, 1969
(1) A finding as to whether an alien's overstay is justified is not germane
to a determination of deportability under section 241(a) (2) of the Imndgration and Nationality Act.
(2) Where an alien has been granted voluntary departure with a provision
for the automatic entry of an order of deportation upon failure to depart
within the authorized period, due process does not require reopening of
the deportation hearing to afford the alien an opportunity to request additional time within which to depart voluntarily, or to show why she failed
to depart, or that failure to depart is justified.
CHARGE:
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmigrant (exchange visitor)—remained longer.
ON BEHALF OF RESPONDENT: Richard W. Lowery, Esquire
Shapiro and Small
77 W_ Washington Street
Chicago, Illinois 60602
(Brief filed)
The respondent, a native and citizen of the Republic of the
Philippines, appeals from an order entered by the special inquiry
officer on October 30, 1968, granting her voluntary departure in
lieu of deportation as an alien who after admission as an exchange visitor has remained in the United States longer than permitted. The order further provides that in the event the respondent failed to depart on or before November 30, 1968, or any
extension beyond such date, the privilege of voluntary departure
would be withdrawn without further notice or proceedings and
she would be deported to the Philippines. Counsel on appeal
maintains, among other things, that the order entered by the special inquiry officer directing the respondent's deportation without
further hearing in the event she failed to depart on or before November 30, 1968, violates the due process and equal protection
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Interim Decision #1944
clauses of the Constitution, and for this reason the proceeding
should be terminated.
The respondent, a female alien, was admitted to the United
States at the port of Honolulu, Hawaii, on or about June 19,
1965, as an exchange visitor for further training as a nurse pursuant to the Mutual Educational and Cultural Exchange Act of
1961. She was authorized to remain in the United States until
March 21, 1968. She has remained in the United States beyond
March 21, 1968 and counsel concedes that she is deportable as
charged in the order to show cause.
Counsel during the hearing of October 30, 1968 requested the
privilege of voluntary departure for the respondent and offered to
explain why she became subject to the charge of having remained
beyond the period, for which she was admitted (p. 2). Counsel
stated for•the record that the respondent's employer had filed a
third preference petition for her which was approved; that she
then applied to the Department of Health, Education and Welfare
for a recommended waiver of the two-year foreign residence requirement pursuant to section 212(e) of the Act: that her application and all motions to reconsider were denied and that while
these motions were being considered the authorized period for
which she was admitted expired (p. 3).
The special inquiry officer advised counsel that he would be
permitted to question the respondent regarding her eligibility for
voluntary departure (p. 3). Counsel replied that since the special
inquiry officer was "more familiar with the necessary questions"
he preferred that the special inquiry officer question the respondent as to her eligiblity. The special inquiry officer upon completion of his interrogation of the respondent concerning her eligibility for voluntary departure asked counsel whether he wished to
question the respondent further or present additional evidence
for the record. Counsel declined the opportunity to present additional evidence (p. 5). The special inquiry officer then entered the
order granting the respondent the privilege of voluntary departure
without expense to the Government, on or before November 30,
1968, or any extension beyond this date that may be granted for
the District Director, with a further provision for deportation to
the Philippines if the respondent failed to depart when and as required (p. 5). Counsel reserved the right to appeal this order (p.
6).
Counsel on appeal contends that the special inquiry officer via
late(' due process in concluding that deportability is established
by the respondent's admission that she remained in the United
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Interim Decision #1944
States beyond the period for which she was admitted without inquiry as to why she overstayed. Counsel maintains that the special inquiry officer should have afforded the respondent an opportunity to present evidence as to whether her overstay was
justified by "unusual circumstances" and then make a ruling
upon this issue. Counsel in this connection relies upon 22 CFR
68.5 (b) 1 which provides a two-year guideline for the authorized
stay of exchange visitors who are graduate nurses and also authorizes an exception when there are "unusual circumstances."
The respondent's admission of the facts alleged in the order to
show cause and her concession that she is deportable establish deportability by clear, unequivocal and convincing evidence. A finding of deportability under these circumstances is sanctioned by 8
CFR 242.16 (b) . There is no substance to counsel's claim that respondent was denied an opportunity to establish why she overstayed. Counsel was in fact afforded such an opportunity and
made a full presentation of the facts but later declined to present
further evidence on this issue.
The respondent was not prejudiced by the special inquiry
officer's failure to rule as to whether her overstay was justified. A
finding of whether an overstay is "justified" is not germane to an
alien's deportability under section 241 (a) (2) of the Act. Such a
finding would be inconsistent with and unsupported by the evidence. It has been conclusively established in this case that the
respondent has remained longer than permitted without legal justification.
Moreover, the respondent was pot prejudiced in any way by the
special inquiry officer's failure to state that her overstay was justified_ The special inquiry officer did not hold the respondent's overstay against her. He complied with counsel's request and
granted voluntary departure, the maximum relief for which she
is eligible. The "unusual circumstances" provision of 22 CFR
63.5(b) (supra 1 ) has no application to a deportation proceeding.
It merely implements the basic purpose of the exchange visitor
program set forth in the Mutual Educational and Cultural Exa Title 22 CPR 63.5 (b) :
To insure that exchange visitors remain in the United States only so long
as is necessary to satisfy their objectives and the intent of the Act, the following general limitations on the period of stay of exchange -visitors are
hereby established. Exceptions to these limitations will be permitted only in
unusual circumstances:
(1) Participants:
(i) Graduate nurses-two years.
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Interim Decision #1944
217, 219, fn.1 (1963) ; Gomez-Fernandez v. INS,
, 11 L.ed. 2d 273.
The respondent has an opportunity to avoid the entry of an
order of deportation by departing within the time limit set by the
order which will be entered in this case. Furthermore, there is no
showing in this record that the respondent made any attempt to
avoid the automatic entry of an order of deportation prior to her
appeal by .applying for an extension under 8 CFR 244.2. She has
been accorded a fair hearing pursuant to section 242 (b) of the
Inunigration and Nationality Act and has been granted the maximum relief available under the circumstances of her case. We find
no violation of the due process and equal protection of the law
clauses of the Constitution in the decision and order entered by
the special inquiry officer on October 30, 1968. The appeal will be
dismissed and our order will provide for the respondent's voluntary departure within 30 days from the date of our decision.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.
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