SAMAI

Interim Decision # 2756




                                MATTER OF SAMAI

                          In Deportation Proceedings
                                     A-21424247

                     Decided by Board January 16, 1980

(1) Sufficient notice of hearing and an opportunity to prepare a defense to deportation is
  a basic prOcedural right. Yin Fong Cheung v. IN$, 

 (D.C. Cir.
  1969).
(2) An objection raised for the first time on appeal concerning improper notice of the
  deportation hearing was not untimely made, since the respondent was previously
  unrepresented and had not made a knowing waiver of his procedural rights.
(3) Where the failure to observe 8 C.F.R. 242.1(b) and 103.5a(b) requiring a minimum
  period before a deportation hearing can be held after service of the Order to Show
  Cause deprived the unrepresented alien of a fair hearing, the Board remanded for a de
  novo hearing and entry of a new derision.

CHARGE
  Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—remained longer than permitted
ON BEHALF OF RESPONDENT:    Richard W. Williams, Esquire
                            283 Greenwich Avenue
                            Greenwich, Connecticut 06830
BY: Milhollan, Chairman; Maniatie, Appleman, Maguire, and Farb, Board Members


  The respondent has appealed from the decision of an immigration
judge, dated September 11, 1978, finding him deportable as charged
and denying his request for voluntary departure in lieu of deportation.
The appeal will be sustained and the record will be remanded.
  The respondent is a 32-year-old native and citizen of Iran who last
entered the United States on July 22, 1977, as a nonimmigrant student.
On September 5, 1978, an Order to Show Cause was issued, charging
the respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant
who had remained in the 'United States beyond the period of his
authorized stay. The Order to Show Cause was served on the respondent by certified mail, return receipt requested. The respondent received
the Order to Show Cause on September 8, 1978. See Exhibit 1.
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                                                          Interim Decision #2756
   8 C.F.R. 242.1(b) specifies that a deportation hearing may not be held
less than 7 days after service of an Order to Show Cause except where
the issuing officer determines that the public interest, safety, or security so requires, or at the request of the respondent. 8 C.F.R. 103.5a(b)
specifies:
  Whenever a person has the right or is required to do some act within a prescribed
  period after the service of a notice upon him and the notice is served by mail, 3 days
  shall be added to the prescribed period_ Service by mail in complete upon mailing.

  Implementation of the regulations cited above required that the
earliest proper hearing date which the Order to Show Cause served by
mail on September 5, 1978, might contain was September 15, 1978. At
the scheduled hearing on September 8, the immigration judge did not
mention the irregularity of the notice to the then unrepresented respondent. On appeal, respondent alleged, without contradiction by the
Service, that the public interest, safety, or security had not made it
necessary to shorten the notice period, and he contended that holding
the hearing in less than 7 days had deprived him of a fair hearing.
  The existence of the regulation relieves us of the need to calculate in
each individual case how much notice is sufficient when, as here; the
regulation is violated. There was no knowing waiver and the objection
at the appeal stage was not untimely in the circumstances. Sufficient
notice of hearing and an opportunity to prepare a defense to deportation is a basic procedural right. Nu Fong Cheung v. INS, 

 (D.C. Cir. 1969). The record will be remanded for a de novo
hearing and the entry of a new decision.
   On remand, the immigration judge should reconsider the respondent's request for voluntary departure if it can be shown that the
punishment actually imposed for the respondent's conviction for petty
theft brings that conviction within the petty offense exception to
section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9). See generally Matter of
Urpi-Sancho, 

 (BIA 1970).
   ORDERS The immigration judge's decision of September 11, 1978,
is vacated and the record is remanded for a de novo hearing and the
entry of a new decision.




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