Interim Decision #2243
MATTER OF ANAYA
In Deportation Proceedings
A-20505711
A-20507231
Decided by Board November 23, 1973
(1) An alien has no "right" to remain indefinitely in the United States in
violation of the immigration laws merely because of the existence of citizen
children.
(2) The granting of the indefinite voluntary departure privilege to natives of
the Western Hemisphere with citizen ties in the United States is a matter
within the sole discretion of the district director and is not reviewable by the
Board of Immigration Appeals.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(aX2)J—Entered without
inspection (both respondents).
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
F. B. Godinez, Esquire Paul C. Vincent
P. O. Box 1216 Appellate Trial Attorney
Lubbock, Texas 79408
Bernabe Q. Maldonado
Trial Attorney
This is an appeal from an immigration judge's order of May 21,
1973 directing the respondents' deportation to Mexico on the
charge contained in the Order to Show Cause. Deportability on the
stated charge is conceded. The appeal is directed to the denial of
an application for voluntary departure in lieu of deportation. The
appeal will be dismissed.
The respondents, husband and wife, are natives and citizens of
Mexico. At the deportation hearing, it was established that they
are the parents of two United States citizen children, and that
they have registered with the United States consul in Juarez and
have received a priority date of April 23, 1973 for the issuance of
immigrant visas. The record also indicates that as of the time of
the hearing no visas were being issued to Western Hemisphere
natives with priority dates after August 1, 1971. For the purposes
of this case, we shall assume that December 1974 approximates
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the date when immigrant visas will become available to the
respondents.
The respondents requested that they be granted until December
1974 within which to depart voluntarily, so that they might remain
in the United States until they could obtain immigrant visas. The
trial attorney opposed the respondents' request on the ground
that the amount of time was unreasonable. The immigration judge
offered the respondents voluntary departure if they would agree
to depart within 90 days. Through counsel, the respondents announced their intention to remain in the United States until
December 1974. Counsel argued that the respondents had a
"right" to remain in the United States because of their citizen
children and stated that they would insist on the December 1974
departure date in order to perfect an appeal on that point. The
trial attorney took the position that the respondents' attitude
represented an unwillingness to depart promptly as required by
the regulations governing voluntary departure. The immigration
judge agreed with the trial attorney. After warning counsel that
he was foreclosing a determination that the respondents were
ready and willing to depart promptly, the immigration judge
reluctantly ordered the respondents' deportation.
On appeal, the respondents attack the immigration judge's
refusal to grant them voluntary departure. They contend that
they have a "right" to remain in the United States until December
1974 because their deportation will constructively deport their
United States citizen children, thereby depriving the children of
their constitutional rights. The short answer to this contention is
that "whatever rights the child[renj may have under the Constitution do not authorize the respondents to remain here in violation
of the immigration laws." Matter of Lopez, Interim Decision No.
2224, at 2 (BIA 1973). Furthermore, it is well established that the
parents' deportation will not deprive the minor citizen children any
constitutional rights. U.S. ex rel. Hintopoulos v. Shaughnessy, 353
U.S. 72 (1957); Perdido v. INS,
420 F.2d 1179, 1181 (CA. 5, 1969);
Dayao v. Staley,
303 F. Supp. 16 (S.D. Tex. 1969), affd per curiam,
424 F.2d 1131 (C.A. 5,1970); Mendez v. Major,
340 F.2d 128,131-32 (8
Cir. 1965); Aalund v. Marshall, 461 F24 710, 714 (CA_ 5, 1972);
Application of Amoury,
307 F. Supp. 213, 216 (S.D.N.Y. 1969).
We have held that what is a reasonable time for voluntary
departure must depend on the circumstances of each case. Matter
of Ocampo-Ocampo,
13 I. & N. Dec. 707 (BIk1971). The immigration judge decided that the amount of time requested by the
respondents was unreasonable and that a reasonable period was
90 days. We conclude that this determination by the immigration
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judge was based on the proper considerations and was entirely
reasonable.
Insisting upon their "right" to remain until December 1974, the
respondents refused to agree to depart within 90 days. The
regulation governing the grant of voluntary departure states that:
... if the alien establishes that he is willing and has the immediate means
with which to dapaTt promptly from the United States, an immigration judge
in his discretion may authorize the alien to depart voluntarily from the
United States in lieu of deportation.... (8 CFR 244.1 (emphasis added).)
The immigration judge was correct in determining that the
respondents' attitude foreclosed a finding that they were "willing
to depart promptly" as required by the regulation. Thus, his denial
of the privilege of voluntary departure was correct.
The respondents also allege that the denial of voluntary departure was an unconstitutional discrimination. Their counsel has
submitted a letter written by the Associate Commissioner of
Operations of the Immigration and Naturalization Service, dated
April 3, 1973. That letter states in part:
Effective immediately, under the changed policy, a Western Hemisphere
native will, as a matter of discretion, be granted extended voluntary departure if he is admissible to the United Statcb as au immigrant and he is an
immediate relative of a United States citizen as defined in section 201(b) of the
Immigration and Nationality Act, as amended,....
The respondents admittedly do not qualify as immediate relatives, because their citizen children are under 21 years of age.
They maintain, therefore, that they are being discriminated
against solely on the basis of their citizen children's age.
As used in that letter, the term "extended voluntary departure"
means a grant of indefinite voluntary departure, that is, voluntary
departure with no date specified. The policy delineated, in the
letter is not directed to immigration judges, since they do not have
the authority to grant indefinite voluntary departure. Matter of
Chamizo, 13 I. & N. Dec. 435 (BIA 1969). Therefore, the Service
policy mentioned in the letter has no relation to the correctness of
the immigration judge's decision in the present case.
Indefinite voluntary departure is a matter within the sole
discretion of the District Director and may be granted without the
institution of deportation proceedings or upon an application for
an extension of the time initially set by an immigration judge for
voluntary departure. 8 CFR 242.5(b); 8 CFR 244.2. We have no
authority to review such an exercise of discretion by a District
Director. 8 CFR 242.5(b); 8 CFR 244.2; Matter of Geronimo,
13 I. &
N. Dec. 680 (BIA 1971); Matter of Wong,
13 I. & N. Dec. 258 (BIA
1969). Therefore, we have no power to consider the respondents'
challenge to the Service policy laid down in the letter. Further-
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more, we note that federal courts have rejected constitutional
challenges to the age requirement of section 201(b). Perdido v.
INS, 420 F.2d 1179, 1181 (CA. 5, 1969); Faustino v. INS,
432 F.2d
429 (C.A. 2, 1970), cert. denied,
401 U.S. 921 (1971); Application of
Amoury,
307 F. Supp. 213, 216-17 (S.D.N.Y. 1969).
Based on the foregoing, we find that the decision of the immigration judge was correct The appeal will accordingly be dismissed.
ORDER: The appeal is dismissed.
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