Interim Decision #2307
MATTER OF ONYEDIRTA
In Deportation Proceedings
' A-19701496
A-20607204
DecidedIby Board July. 25) 1974
Respondents, who failed to depart within, the time initially granted to depart voluntarily,
subsequently filed a motion to reopen seeking a new grant of voluntary departure. The
Board of Immigration Appeals - has jurisdiction to grant the form of relief sought;
however, in the absence of respondents' demonstration of any compelling reason • or
circumstance for their failure to, depart within the period of time initially granted, the
motion is denied.
CHARGES: •'
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Failed to maintain status
(male respondent)
JUL or 191)2- 9ection 241(a)(2) [8 1251(2)(2b —Noiimmigrant —remained
longer than permitted (femal6 respondent)
Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Nonimmigrant—remained
longer (male respondent)
ON BEHALF OF RESPONDENTS: Martin Held, Esquire
1725 K Street, N.W.
Washington, D. C. 20036
The alien respondents, husband and wife, are natives of Nigeria. In
decisions dated June 6, 1973, the respondents were found deportable by
an immigration judge as nonimmigrants who had remained beyond the
authorized length of their stays. They were accorded the privilege of
voluntary departure; however, they failed to depart from the United
States within the period of time authorized by the immigration judge.
They subsequently filed a motion to reopen the proceedings, seeking
forms of relief over which neither the Board nor the immigration judge
has jurisdiction. The immigration judge denied that motion, and, in an
order dated April 30, 1974, we dismissed the respondents' appeal from
that denial. The respondents have submitted a second motion seeking
reopening. The motion 141 be denied.
The present motion requests reopening for the pnrpose of permitting
the respondents to apply for a new grant of voluntary departure. The
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Interim Decision #2307
motion is accompanied by a partially completed brief whose preparation
was evidently begun in connection with the respondents' earlier motion
to reopen. The respondents have not directly attempted to justify or to
explain their failure to take advantage of the immigration judge's initial
grant of voluntary departure.
The respondents are not seeking an extension of voluntary departure,
a request which could not properly be entertained by an immigration
judge. See Matter of Albano, 13 I. & N. Dee. 59 (BIA 1968); Matter of
Wong,
13 I. & N. Dec. 258
(BIA 1969). Instead, they desire a new grant
of voluntary departure. An immigration judge does possess the power
to make such a grant, although the departure period must be set by a
district director. Matter of Yeung,
13 I. & N. Dec. 528
(BIA 1970).
Accordingly, we do have jurisdiction to grant the form of relief which
the respondents presently seek.
However, in order to warrant a new grant of voluntary departure, an
alien must demonstrate the existence of compelling reasons or circumstances for his failure to depart within the time originally allotted.
Were we to require less justification on the part of an alien, there would
be little motivation for the alien to depart promptly and the result would
be additional delay in the deportation process. Bee Fan Wan Keung v.
INS, 434 F.2 d 301 (C.A. 2, 1970); Matter of Arao, 13 L & Dee. 156, at
159 (BIA 19139).
The respondents have not shown any compelling reasons or circumstances for their failure to depart within the period of time initially
authorized by the immigration judge. They have failed to make out a
prima facie case for reopening these proceedings. The motion will be
denied.
ORDER: The motion is denied.
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