YEUNG

Interim Decision #203b




                           MATTER OF YEUNG

                      In Deportation Proceedings

                               A-15750231

                  Decided by Board March 24, 1970
(1) A special inquiry officer has authority under current regulations to reopen deportation proceedings for the limited purpose of considering a new
  grant of voluntary departure to an alien who had permitted a prior grant
  of that privilege to expire; however, such authority does not empower a
  special inquiry officer to fix the departure time when authorizing voluntary departure anew.
(2) While ordinarily voluntary departure should not be granted anew in
  crewmen cases in the absence of strong extenuating circumstances—such
  as the presence of close family relationships in this country or where it
  appears that the failure to depart was due to circumstances beyond the alien's control—, each case must be determined on its own facts, and in exercising discretion a special inquiry officer must appraise the factors
  which led to the delay. In the instant case, voluntary departure is granted
  anew by the special inquiry officer based upon his conclusion that respondent could reasonably have construed as extensions of voluntary departure
  time the Service letters advising him that he would be permitted to remain in the United States pending Congressional consideration of private
  bills introduced in his behalf.

CHARGE:

  Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Nonimmigrant crewman—remained longer than permitted.

ON BEHALF OF RESPONDENT:                        ON BEHALF OF SERVICE:
 John L. Murff, Esquire                           William B. Gurock
  225 Broadway                                    Trial Attorney
  New York, New York 10007                        Charles Gordon
  (Brief submitted)                               General Counsel
                                                  (Brief submitted)


  This appeal raises three questions: (1) whether a special inquiry officer has power under current regulations 1 to reopen deportation proceedings for the limited purpose of considering a

  1 8 CFR 242.22; 8 CFR 244.1 and 244.2.



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new grant of voluntary departure to an alien who had permitted
a prior grant of that privilege to expire; (2) whether, if he has
such power, the special inquiry officer may also fix the departure
time; and (3) whether, on the facts of this case, relief should not
have been denied in the exercise of discretion.
   The facts are not in substantial dispute. Respondent is a 22-
year-old unmarried male alien who was admitted to the United
States as a crewman on January 22, 1966 and has remained here
since. At a hearing before a special inquiry officer at which he
was represented by counsel, he conceded deportability on the
above-stated charge. In an order dated December 20, 1967, the
special inquiry officer granted respondent's application for voluntary departure, with an alternate order for his deportation if he
failed to depart when and as required by the District Director.
His application under section 243(h) of the Act for withholding
of deportation to Hong Kong, the alternate place of deportation,
was denied. Respondent did not appeal.
   The District Director fixed February 7, 1968 as the limit for
voluntary departure. On respondent's failure to depart, a warrant
for his deportation was issued on February 9, 1968. 2 On the same
day, the District Director wrote him that since a private bill in
his behalf was under Congressional consideration, he would be
permitted to remain in the United States until February 1, 1969,
or 30 days following adverse action on the bill, whichever occurs
sooner.
   The private bill was not enacted and on February 19, 1969 the
District Director wrote respondent that arrangements for his deportation would be made on or about March 2, 1969. In the interim, another private bill had been introduced in respondent's
behalf. On February 24, 1969 the District Director wrote respondent that he would be permitted to remain until February 1,
1971 or 30 days following adverse action on the bill whichever occurs sooner. On June 26, 1969 the District Director wrote respondent that adverse action had been taken on the private bill
and that steps were being taken to effect his deportation. On July
17, 1969 he was notified to surrender on July 28, 1969 for deportation to Hong Kong.
   On July 24, 1969 respondent filed a motion asking that the voluntary departure privilege be restored and that he be permitted
to surrender and depart under safeguards upon purchasing his
own transportation; or in the alternative, that the deportation
  2 The record does not reflect that respondent was notified of the issuance

of the deportation warrant.

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 proceedings be reopened to permit a new application for voluntary departure before a special inquiry officer. The District Director declined to restore voluntary departure 3 and a hearing was
held by the special inquiry officer on the motion to reopen.
    The Service's trial attorney opposed reopening on two grounds:
 First, that under the amended Service regulations, the special inquiry officer lacked power to grant voluntary departure anew;
 and second, that in any event this relief should be denied in the
 exercise of discretion because respondent had allegedly resorted
to dilatory practices to ward off his enforced departure. Respondent's attorney contended that not only respondent but also he
himself had been misled by the Service's letters into believing
that what was being granted during the pendency of the private
bills was an extension of voluntary departure time rather than a
stay of execution of a deportation order.
    On July 29, 1969, in a detailed and well-considered opinion, the
 special inquiry officer concluded that he has jurisdiction to grant
voluntary departure anew and that such relief was warranted on
the facts of this case. To avoid the possibility of further appeal
or litigation, the special inquiry officer entered an order which, in
 form, denied the motion to reopen but which provided further
that "if [respondent] leaves the United States within the period
of seven days from the date of this order, namely, on or before
August 6, 1969, the order of deportation will be deemed to have
been simultaneously lifted and the respondent will be deemed to
have departed from the United States under an order of voluntary departure in lieu of deportation." It is this order which is
before us on appeal by the Service's trial attorney.
   In practical effect, despite its negative form the special inquiry
officer's order affirmatively granted voluntary departure anew
and fixed the departure time. Viewed in this light, the order poses
the three issues stated in the opening paragraph of this opinion.
   In presenting the Service's views on this appeal, its General
Counsel has receded from the position taken by the trial attorney
on one of the issues. In his memorandum in lieu of oral argument, the General Counsel states that it is the Service position
that under current regulations the special inquiry officer does
have power to reopen and to grant voluntary departure. The General Counsel insists, however, that in the exercise of discretion as
   3 Presumably, what respondent sought and what the District Director de-

nied was a nunc pro tunc extension of the expired voluntary departure time.
See page 3081 of Service Operations Instruction 243.1, available in the Service's public reading room.

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a general policy the privilege of voluntary departure should be
granted only once, in the absence of very strong extenuating circumstances, which he feels are lacking here. Finally, the General
Counsel argues that under the current regulation, only the District Director has power to fix the departure time when voluntary
departure is thus granted anew.
   The first two questions involve regulations promulgated by the
Commissioner of Immigration and Naturalization governing procedures in deportation cases and the powers of Service officers
with respect to such cases. The authority of the Commissioner to
adopt such regulations cannot be seriously disputed.* What confronts us is the proper construction of those regulations.
   Originally, the special inquiry officer did not fix the time for
voluntary departure, since the regulation empowered him only to
authorize voluntary departure "within such time and under such
conditions as the district director shall direct," 8 CFR 244.1
 (1968 Supp.). District Directors were given unreviewable authority to rule on requests for extension of voluntary departure time,
8 CFR 244.2 (1968 Supp.).
   Effective March 15, 1968, these regulations were amended, 

 (January 31, 1968). As amended, 8 CFR 244.1
now provides that the special inquiry officer may authorize voluntary departure "within such time as may be specified by the special inquiry officer when first authorizing voluntary departure
and under such conditions as the district director shall direct."
Amended 8 CFR 244.2 now provides that, "Authority to extend
the time within which to depart voluntarily specified initially by
a special inquiry officer . . . is within the sole jurisdiction of the
district director." As heretofore, the District Director's decision
is not appealable.
   Conflicting views have been expressed among Service officials
 (including special inquiry officers) as to the effect of these
amendments upon the powers of special inquiry officers. It has
been argued that the amended regulations were designed to divest
special inquiry officers of their power to reopen under 8 CFR
242.22 for the limited purpose of considering a new grant of voluntary departure to an alien who had permitted a prior grant of
that privilege to expire. Under the restricted construction thus
contended for, the defunct privilege could be resurrected only by
a District Director, through the device of a nuns pro tune extension of the already expired departure time, pursuant to the au-
  4see Immigration and Nationality Act, sections 101(b) (4), 103(a) (b), and
242 (b) ; 8 CFR 2.1.

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Interim Decision #2036
 thorization spelled out in the internal Service instructions referred to in footnote 3, supra.
    The construction of administrative regulations calls into play
 the same rules of interpretation as are applicable to the construction of statutes. Like statutes, administrative rules must be construed to effectuate the intent of the enacting authority. We must
 look to the plain meaning of the language of the regulation and to
 the purpose behind its promulgation, Rucker v. Wabash Railroad
 Company, 

 (7 Cir., 1969) .
    The language of the regulations under review does not indicate
 any purpose to restrict to District Directors the renewal of the
 voluntary departure privilege, to the exclusion of special inquiry
 officers. The General Counsel asserts that the 1968 amendments
 were designed to increase the special inquiry officer's authority,
 not to diminish it. This conclusion is supported by the meagre
 documentary evidence available as to the origins of the
 amendments.' We may safely assume that, in view of the contrariety of opinion heretofore expressed, the General Counsel made
 due inquiry of those in the Service responsible for the promulgation of these regulations, including the Commissioner, before representing to us what their underlying purpose was. In appraising
 the Service's regulations, we should ordinarily give the Commissioner's words the meaning he tells us he intended they should
 have, especially where, as here, they are reasonably susceptible of
such a construction.
    We conclude that the special inquiry officer correctly held that
he had power to reopen and to grant voluntary departure under
these circumstances.
   There is still a distinction, however, between the authority to
grant voluntary departure and the authority to specify the terms
and conditions of that privilege. The amended regulation empowers a special inquiry officer to specify the limits of the departure
time "when first authorizing voluntary departure." A reasonable
construction of this language would be that the special inquiry officer is not permitted to fix the departure time when again authorizing voluntary departure, this being left for the District
Director, as heretofore. The Service now urges this view upon us
   5 They appear to have their genesis in a letter dated March 1, 1967 to the

Commissioner from the Association of Immigration and Nationality Lawyers, recommending that special inquiry officers be given greater authority
in this and other regards. The letter was published in the Association's Immigration Bar Bulletin, Vol. XX, No. 1, January—June, 1967, pp. 5-6.


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 and we think it is correct. Accordingly, we now hold that the special inquiry officer erred in fixing the departure time in this case.
    Conceding that the special inquiry officer had authority to
 grant voluntary departure anew, the General Counsel contends
 that this relief should have been denied in the exercise of discretion. He points to the troublesome enforcement problems presented by deserting crewmen and to the Board's long-standing
 policy not to grant voluntary departure to a crewman a second
 time "in the absence of very strong and persuasive reasons,"
 Matter of M—, 

 (BIA, 1952).
    While the roles of this Board and of the special inquiry officers
 are essentially adjudicative in nature, we cannot ignore the effect
 cf our decisions on the enforcement of the immigration laws. In
 determining whether or not to grant discretionary relief from deportation, one of the elements to be considered is whether a grant
 will encourage other aliens similarly circumstanced to violate the
 laws. This Board long ago pointed out that under some circumstances effective administration of the immigration laws may require an outright denial of voluntary departure in the first instance, Matter of D—F—, 

 (A.G., 1952).
    Voluntary departure is beneficial both to the Service and to the
 alien; but if the alien does not depart promptly, as contemplated,
the Service becomes involved in further and more costly procedures by his attempts to prolong his illegal stay here and the
original benefit to the Service is lost. If, after years of obstruction and delay, the alien is again rewarded with the opportunity
for voluntary departure which he has previously spurned, what
incentive is there for any alien similarly circumstanced to depart
promptly when first given the opportunity? A reasonable rule to
apply in crewman cases would be that ordinarily voluntary departure should not be granted anew in the absence of strong extenuating circumstances, such as the presence of close family relationships in this country, or where it appears that the failure to
depart was due to circumstances beyond the respondent's control.
   It has been contended, in this and other cases, that the Service
has abruptly and without notice changed its policy with regard to
voluntary departure in crewman cases; and that it is unjust to
apply the new policy to crewmen who had failed to depart on advice of their attorneys, who relied on the continuance of the former policy. It has been alleged that before June, 1969 District
Directors invariably restored voluntary departure, by the nunc
pro tunc device above referred to, whenever a crewman showed

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he had the documents and transportation needed for immediate
departure.
    We need not inquire whether these allegations of an invariable
practice are correct. It seems clear, from the change effective
July 30, 1969 in the Service's Operations Instructions referred to
 in footnote, 3, supra, that there has indeed been a switch in Service policy. It would be wholly unrealistic, however, to expect the
 Service to adhere to old enforcement policies in the face of
 changed enforcement problems. In exercising discretion, the special inquiry officers and this Board are entitled to take into account the enforcement needs of the Service in the light of changing circumstances.
    Each case must, of course, be determined on its own facts and
in exercising his discretion the special inquiry officer must appraise the factors which led to the delay. Litigation, whether administrative or judicial, usually results in some delay. Yet, as the
 special inquiry officer in this case pointed out, not all litigation is
 by that token frivolously dilatory.
    The special inquiry officer has concluded that the respondent
 could reasonably have construed the Service letters concerning
 the private bills as extensions of voluntary departure time, and
that respondent's failure to depart under these circumstances
 cannot be considered a deliberate defiance of constituted authority. It cannot be said, of course, that the Service letters must be
construed as misleading in all circumstances. In this case, however, in view of the peculiar facts and the chronology of the
events, we cannot say that the special inquiry officer's conclusion
was without foundation. We will, accordingly, not disturb his
grant of voluntary departure in this case. We must remand, however, for the entry of a proper order with respect to the time and
conditions of departure.
   ORDER: It is ordered that the proceedings be remanded to the
special inquiry officer for the entry of an order consistent with
the views expressed in the foregoing opinion.




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