Interim Decision #1971
MATTER OF WONG
In Deportation Proceedings
A-15878180
Decided by Board May 2, 1969
(1) The Board of Immigration Appeals has no jurisdiction to extend the
time for voluntary departure, such authority being vested in the District
Director (8 CFR 244.2).
(2) Motion to reopen deportation proceedings to permit application for an
extension of voluntary departure time is denied where such motion does
not recite any new facts, the motion fails to set forth prior judicial litigation in the case in compliance with 8 CFR 3.8, and the alien, after admission as a crewman, has remained unlawfully in the United States, an
order of deportation having been outstanding more than three and onehalf years, during which time his justified deportation has been delayed by
numerous administrative and judicial reviews, the latest being March
1969.
DEPORTABLE: Act of 1952—Section 241(a) (2) 18 U.S.C. 1251(a) (2))—Admated as nonimmigrant crewman under section 101(a) (15).
The respondent, a native of China and a citizen of the Republic
of China on Formosa, moves for a reopening of the deportation
proceeding to permit application for an extension of time within
which to depart voluntarily. The motion alleges that the respondent is employed as a "specialty cook" and that his employer has
agreed to submit in his behalf a visa petition for sixth preference
classification.
The resiondent last entered the United States as a nonimmigrant 'crewman on May 5, 1965. Deportation proceedings have
been pending since the issuance of an order to show cause on October 4, 1965. The original decision of the special inquiry officer,
dated October 5, 1965, found the respondent deportable but
granted him voluntary departure in lieu of deportation. When the
respondent failed to depart as required, a. warrant of deportation
-
was issued on August 26, 1966 and is outstanding. During the
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Interim Decision # 1971
more than three and a half years which have intervened since the
issuance of the order to show cause, the case has been before this
Board on two occasions and before the federal courts in New
York on three occasions'
The motion now before us has been submitted by counsel other
than the one who originally represented the respondent before
this Board and during his litigation before the courts. Present
counsel entered his appearance on April 23, 1969. His motion
seeks a reopening of the proceeding to permit application for an
extension of time within which to depart voluntarily. The authority to extend the time within which to depart voluntarily is
within the sole jurisdiction of the District Director (8 CFR
244.2) . Furthermore, according to the record before us, the privilege of voluntary departure is no longer available to the respondent as a warrant of deportation has been outstanding since August of 1966. Counsel's motion does not recite any new facts
which warrant our reopening the proceedings (8 CFR 3.8).
The record in this case has another aspect in addition to the
fact that this Board has no jurisdiction to extend the time for
voluntary departure. We note that counsel, an experienced immigration lawyer, who has recently entered the case, has overlooked
the provisions of 8 CFR 3.8, the pertinent part of which reads:
Motions to reopen or reconsider shall state whether the validity of the deportation order has been or is the subject of any judicial proceeding and, if
so, the nature and date thereof, the court in which such proceeding took
place or is pending, and its result or status.
The motion submitted by counsel makes no reference to prior
litigation in the respondent's case notwithstanding the fact that
the respondent challenged this Board's decision of April 26, 1968,
by a petition filed in the Court of Appeals for the Second Circuit
in May of 1968. The Court of Appeals dismissed the petition on
March 7, 1969 and directed that its mandate issue forthwith so
that the respondent may "be deported to Hong Kong without further delay," Wong Kam Cheung v. INS (supra') .
We call counsel's attention to this provision of the regulations
because the respondent's original counsel of record also failed to
mention prior litigation in a motion considered by this Board on
appeal in February of 1968. This fact caused the Board to enter
an order overruling the special inquiry officer, which we withdrew on our own motion on February 23, 1968, when it was
I See Wong Kara Cheung v. Eeperdy, 66 Civ. 3969 (S.D.N.Y., unreported);
Wong Kam Cheung v. Esperdy, 274F. app. 485 (S.D.N.Y., 1967) Wong
Kam Cheung v. INS, 408 F.2d 35, Docket No. 32346 (2 Cir., March 7, 1969).
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Interim Decision #1971
brought to our attention that the United States District Court for
the Southern District of New York had ruled adversely on the
same issue then before the Board on appeal. 274 F. Supp. 485.
The failure of counsel now of record to refer to prior litigation
has additional significance in light of the decision by the Court of
Appeals for the Second Circuit as recently as March 7, 1969. The
court in its decision referred to the fact that this Board had
withdrawn its decision of February 9, 1968 because of the failure
of alien's counsel "to advise the Board that the respondent
[alien] had been in court in this case." The court also referred to
the "many previous attempts at delay and the frivolous reasons
advanced for the belated motion to withdraw [the order deporting the respondent to Hong Kong]."
We realize the counsel now of record has the obligation to
apply for any administrative relief for which he believes his
client may be eligible. This case, however, is a prime example of
the type of litigation referred to in House Report No. 1086, supporting the enactment of
Public Law 87-301, which created a
separate statutory form of judicial review for deportation and
exclusion cases. The Committee on the Judiciary stated that it
had been disturbed in recent years by the "growing frequency" of
judicial actions instituted by aliens whose • cases "have no legal
basis or merit" and are brought solely for the purpose of "preventing or delaying indefinitely their deportation from this
country." 2
The respondent has now resided unlawfully in the United
States for four years. During this time, he has resorted to numerous administrative and judicial reviews for the sole purpose of
delaying his justified deportation as an alien crewman who remained in the United States beyond the time for which he was
admitted. He is now detained pending completion of travel arrangements for his deportation to Hong Kong. Assuming that
present counsel is familiar with both the administrative and judicial reviews that preceded his representation of the respondent,
we can only conclude that the motion now before us was brought
solely for the purpose of further delay. Under the circumstances,
we will deny the motion.
ORDER: It is directed that the motion be and the same is
hereby denied.
2 See page 2967, volume 2, U.S. Code Cong. and Admin. News, 1961.
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