14 I. & N. Dec. 486 - PALMA

Interim Decision #2242




                           MATTER OF PALMA
                    . In Deportation Proceedings
                                 A-7140179

                  Decided by Board November 9, 1973
An alien's departure from the United States in 1973 while under a final order of
  deportation served to execute the outstanding deportation order, thereby
  mooting the deportation proceedings. Accordingly, a motion to reopen the
  deportation proceedings to apply for suspension of deportation cannot be
  granted, notwithstanding the alien's departure was followed by reentry the
  same day (Fleuti v. Rosenberg,

374 U.S. 449

(1963), inapplicable).
CHARGE:
Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1361(0)(2)]—Entered without
inspection
ON BEHALF OF RESPONDENT: Robert L. Milland, Esquire
El Paso Legal Assistance Society
109 North Oregon Street, Suite 919
El Paso, Texas 79901

On April 26, 1962, an immigration judge found the respondent
deportable as charged in the Order to Show Cause and ordered his
deportation. Appeal from that decision was waived and the deportation order became finaL On May 2, 1973, an immigration judge
granted a motion to reopen the deportation proceedings so that
the respondent could apply for suspension of deportation. Unknown to the immigration judge, the respondent had departed
from the United States on April 8, 1973, returning the same day.
The Immigration and Naturalization Service moved to vacate the
order to reopen. In an order dated May 23, 1973, the immigration
judge granted the Service's...motion to vacate on the ground that
the respondent's departure from the United States had executed
the outstanding deportation order, thereby mooting the deportation proceedings. The respondent has appealed from that order.
The appeal will be dismissed.
Section 101(g) of the Immigration and Nationality Act states:
For the purpose of this Act any alien ordered deported ... who has left the
United States, shall be considered to have been deported in pursuance of law,

486
Interim Decision #2242
irrespective of the source from which the expenses of his transportation were
defrayed or of the place to which he departed.
8 CFR 243.5 states, in part:
... Any alien who has departed from the United States while an order of
deportation is outstanding shall be considered to have been deported in pursuance of law.
• •
The respondent has conceded that he departed the United
States on April 8, 1973, while he was under an order of deportation. It is well established that an alien's departure while under an
order of deportation executes that order pursuant to section 101(g)
of the Act. Mrvica v. Esperdv,

376 U.S. 560, 563-64

 (1964); Matter of
Solis-Davila,

13 I. & N. Dec. 694

 (INA 1971), affd Solis Davila v.
INS,

456 F.2d 424

 (C.A. 5, 1972). Consequently, the respondent was
deported pursuant to the law.
   Since the respondent's departure executed the deportation order, there are no longer any deportation proceedings pending
which could be reopened. Therefore, the immigration judge was
correct in his determination that the order to reopen should be
vacated. CE Beryhoefer v. Johnson,

285 F.2d 762

 (C.A. 5, 1961); 8
CFR 3.2.
  The respondent argues that the deportation order was not
executed because he did not make a meaningful departure for
immigration purposes under the doctrine of Rosenberg v. Fleuti,

374 U.S. 443

 (1063). The respondent's reliance on Fleuti is inappropriate.
   Unlike Fleuti who left the country free of any sanctions imposed
by the immigration laws, the respondent departed while under an
outstanding order of deportation. In Aleman-Fiero v. INS,

481 F.2d 601

 (C.A. 5, 1973), it was held that such an individual was not
entitled to the benefits of Fleuti. Furthermore, the court in
Aleman Fiero pointed out that the issue in Fleuti was not what
        -


constituted a departure but whether Fleuti was within the exemption from the term "entry" under section 101(aX13). That section
expressly provides that "no person whose departure from the
United States was occasioned by deportation proceedings ... shall
be held to be entitled to such exemption." -
  We conclude that the immigration judge's decision was correct.
The appeal will be dismissed.
  ORDER: The appeal is dismissed.




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