Interim Decision #2471
MATTER OF MCQUAIDE
In Deportation Proceedings
A-20058452
Decided by Board February 11, 1976
Assuming, argulndo, that there may be situations in which a citizen child should be
permitted to iltervene in a deportation proceeding of an alien parent, neither respondent nor her citizen child, through his guardian ad litem, has shown that appropriate
circumstances for intervention exist in the instant case in which there has been no
showing of prejudice to the child, and counsel for respondent has merely asserted that
because of the divorce decree provisions granting respondent custody of her child in the
United States for the three min-school months of the year, respondent cannot
adequately represent the interests of her child.
CHARGE:
Order: Act of 1952—Section 241(a)(2)" [8 1251(a)(2)]—Nonimmigrantremained longer than permitted.
UN BEHALF OF RESPONDENT: ' ON BEHALF OF SERVICE:
James J. Orlow, Esquire George Indelicato
233 Broadway Appellate Trial Attorney
New York, New York 10007
This is an appeal from a decision of an immigration judge, dated June
4, 1975 finding the respondent deportable, granting her voluntary departure and denying a motion to permit her United States citizen child
to intervene in the deportation proceedings. The appeal will be dismissed.
The respondent is a female alien who is a native and citizen of Greeee.
She last entered the United States on February 26, 1973 as a nonimmigrant visitor for pleasure. She had remained longer than the period
authorized. 'Ihe respondent admitted the factual allegations of the order
to show cause. On the basis of these admissions the respondent is
deportable under section 241(a)(2) of the Immigration and Nationality
Act. On appeal, the respondent contests only the amount of time which
she was graced for voluntary departure and the denial by the immigration judge of the motion to permit her United States citizen child to
intervene in these proceedings. The motion was made by the respondent
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and the child's guardian ad litem. Deportability is not in issue on appeal.
The respondent was at one time married to a United States citizen.
The record does not indicate the date of the marriage or the age of her
United States citizen child. On March 4, 1974, the respondent was
divorced from her husband in the family court of Rhode Island. The
decree of divorce sets forth fairly explicit provisions for the custody of
the child which resulted from this marriage.
Under the terms of the decree, the respondent's former husband is to
have custody of the cad for nine months of each year for a period
coterminous with the normal school year. The respondent is to have
custody for the remaining three months of the year. However, the
decree also provides that the respondent is prohibited from removing
the child from the United States. The effect of this decree is that the
respondent may have custody of the child only in the United States. To
this end, the decree provides that the respondent's former husband is
required to pay for the respondent's expenses in traveling to and from
the United States to be with her son.
The respondent contends that her United States citizen child has a
right to intervene in these proceedings, and that because of the custody
provisions of the decree, permission to intervene should be granted_ It
is clear that the deportation of an alien parent does not deprive a
dependent citizen child of a constitutional right. See Aalund v. Marshal, 461 F.2d 710 (C.A. 5, 1972); Perdido v. INS
420 F.2d 1179 (C.A. 5,
1969); Cf. Enciso-Cardoza v. INS,
504 F.2d 1252 (C.A. 2, 1974); Swartz
v. Rogers,
254 F.2d 338 (D.C. Cir., 1958), cert. denied
357 U.S. 928
(1958).
In Agosta v. Boyd,
443 F.2d 917 (C.A. 9, 1971), the Court of Appeals
for the Ninth Circuit found that there was no basis for conferring a right
to intervene in deportation proceedings on a citizen relative of an alien.
See also Cervantes v. INS,
510 F.2d 89,91-92 (C.A. 10,1975), Application of Amoury,
307 F. Supp. 213 (S.D. N.Y., 1969). In EnciscoCardoza, supra, on which the respondent relies, the Second Circuit
indicated in dicta that there could be circumstances in which a United
States citizen child should be permitted to intervene in a deportation
proceeding.
However, even if we assume, arguendo, that there are situations in
which a citizen child should be permitted to intervene, neither the
respondent or her child, through his guardian ad litem, has shown that
appropriate circumstances for intervention exist here. See EnciscoCardoza, supra, at 1254. Counsel for the respondent has merely asserted that because of the custody provisions, the respondent cannot
adquately represent the interests of her child. The respondent ha:s not
explained how the custody provisions have this effect. The respondent
has not made any showing that the respondent and the child do not have
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coextensive interests. The respondent has an interest in minimizing her
separation from her child. The child would appear to have the same
interest. Nothing has been presented to indicate that the respondent's
child would have presented anything at the hearing that the respondent
herself did not present or was able to present. There is simply no
showing of prejudice to the child. Accordingly, the motion to intervene
was properly denied.
The respondent also contends that she should have been granted more
than 30 days voluntary departure. We are satisfied that the immigration
judge did not• abuse his discretion in granting that amount of time. The
respondent may, of course, apply to the district director for an extension of voluntary departure time if she believes that she can establish
compelling reasons for such a grant.
The decision of the immigration judge was correct. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.
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