Interim Decision #2405
MATTER OF CHERY AND FIASAN
In Deportation Proceedings
A-20187285
A-19653626
Decided by Board July 2, 1975
Orders to show cause charging respondents with deportability wider section 241(a)(2) of
the Inunigrat.on and Nationality Act for having remained longer than permitted after
admission as nonimmigrant visitors were not defective for failure to include a reference
to 8 CFR 214.1(a). The orders to show cause, which concisely set forth the specific
nonimmigrant classification under which respondents were admitted to the United
States, the specific period(s) of authorized admission, the acts or conduct in violation of
law and a description of the statutory provisions(s) alleged to have been violated, were
sufficiently explicit to inform respondents so as to enable them to mount a defense.
CHARGES:
Order: Ad if 1952 -Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—nonimmigrant visitor-
-remained longer than permitted (both respondents)
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Brian R. Hersh, Esquire Henry J. Scroope, Jr.
Allan Seserman, Esquire Trial Attorney
602 Biscayne Building
19 West Flag er Street Paul C. Vincent
Miami, Florida 33130 Appellate Trial Attorney
These cases present an appeal by the Service from a decision of the
immigration judge on August 26, 1974, ordering the charges therein be
dismissed without prejudice The appeal will be sustained and these
cases remanded to the immigration judge for further consideration.
We have carefully reviewed the contentions of both parties on appeal
and conclude that the decision below was not correct in holding the
orders to show cause defective for failure to include a reference to 8
CFR 214.1(a;•. We have no quarrel with the immigration judge's exposition (pp. 4-6) of the legal principles involved in this matter. It is with the
application of these principles to these eases that we differ.
8 CFR 242.1 provides, inter alia, that every proceeding under the
immigration laws "to determine the deportability of an alien in the
United States is commenced by the issuance and service of an order to
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show cause by the Service." The order to show cause states "Upon
inquiry conducted by the Immigration and Naturalization Service, it is
alleged that:" and informs the alien of the nature of the proceedings and
the legal authority under which the proceedings are conducted. It sets
forth a concise set of factual allegations of the acts or conduct in violation
of the law, and a description of the statutory provision(s) alleged to have
been violated. Its purposes are to obtain direct jurisdiction over the
person of the alien, to advise him of his alleged violation with sufficient
precision to allow him to defind himself, and to set in motion and inquiry
in which the Service must establish that a violation occurred, and the
alien has a opportunity to defend himself. See Matter of Ho, 12 I. & N.
Dec. 516 (BIA 1967); aff'd sub nom. Ho Yeh Sze v. INS,
389 F.2d 978
(c..A. 2,.1968); cert. denied
390 U.S. 1040 (1968).
The order to show cause in the case of Andre Chery states that he is a
native and citizen of Haiti, that he entered the United States at Miami,
Florida, on or about May 13, 1973; that he was admitted as a nonimmigrant visitor for pleasure until May 16, 1973, without authorization of
the Service. The order to show cause in the case of Mahmudul Hasan
states that he is a native of Malaysia and a citizen of Pakistan; that he
entered the United Staes at New York on or about January 10, 1970;
that he was admitted as a nonimmigrant student until June 29, 1970 and
was thereafter authorized to remain in the United States until October
10, 1978; and that he has remained in this country beyond October 10,
1973 without authorization of the Service. In each instance the order to
show cause then informs the alien that on the basis of these allegations
he is charged with being in the United States in violation of the Immigration and Nationality Act (Section 241(a)(2)) and hence deportable,
specifically for having entered as a nonimmigrant under section 101-
(a)(15) of that Act and having remained longer than permitted.
We regard these allegations as sufficiently explicit to inform the alien
in each instance what actions were in violation of the law, and what law
he violated, so as to enable him to mount a defense. It tells him that,
according to the government, he came as a nonimmigrant for a specific
period of time. Common sense would dictate that a visitor to this
country is not allowed to remain here forever, even apart from the
statutory references in the order to show cause or the provisions of the
published regulations (8 CFR 214.1(a)). The Act contemplates that an
alien who is legally entitled to remain in the United States will have a
status permitting his presence here (Section 291). Each alien was informed of the time periods in question. If they were erroneously stated,
or if authorization for longer stays existed, then each had notice sufficient to allow him to clarify his position. We see no "vagueness" in this,
as found by the immigration judge.
In reaching this conclusion we are bolstered by the fact that in
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thousands of cases in which these basic factual allegations, and charge
have been used, since the Act of May 19, 1921 (42 Stat 5) recognized a
nonimmigrant category, not once, to the best of our knowledge, has any
substantial c:aallenge along these lines come to the attention of this
Board. Not only is this long standing administrative practice entitled to
weight, (Nazareno et al., v. Attorney General of the United States, 512
F.2d 936, 940 (CADC 1975)), but, more importantly, in this instance, it
is a clear indication of an absence of confusion or misunderstanding. We
are satisfied that the orders to show cause were clear and specific and
termination on this ground was not warranted, cf. Matter of Loo,
15 I. &
N. Dec. 127 (BIA 1974).
Further, in response to the contentions of counsel that the respondents were denied due process and that section 241(a)(2) of the Immigration and Nationality Act, as amended, is void for vagueness and
overbreadth, we find satisfactory compliance with procedural due process requirements, and neither this Board nor the immigration judge
may rule on the constitutionality of the statutes which we administer.
See Matter of Chavarri—Alva,
14 I. & N. Dec. 298 (BIA 1973); Matter of
Santana, 13 & N. Dee. 362 (BIA 1969); Matter of
4 I. & N. Dec.
556 (BIA 1951).
The respondents have admitted all the factual allegations contained in
the order to show cause. They are nonimmigrants; they have remained
longer than authorized; and they are here without authorization.
Deportability has been established by clear, convincing and unequivocal
evidence. The appeal is sustained and the cases remanded for further
consideration of applications for discretionary relief.
ORDER: The appeal of the Service is sustained.
Further order: These cases are remanded to the immigration judge
for further proceedings consistent with the foregoing opinion.
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