MANGASER

Interim Decision #2957




                         MATTER OF MANGASER

                         In Deportation Proceedings

                                   A-21098138

                     Decided by Board August 12, 198.9

   Under the Immigration and Nationality Act Amendments of
1981, 

 Stat. 1611, a nonimmigrant exchange
alien (as defined in section 101(a)(15)(J) of the Act, 

(a)(15)(J) (1982)), is barred by section 244(f)(2) of the Act, 

(0(2) (1982), from eligibility for suspension of deportation regardless of whether or not he is subject to or has fulfilled
the 2-year foreign residence requirement of section 212(e) of the
Act, 

(e) (1982). Matter of Pereyra, 

(BIA 1978), superseded.
CHARGE:
 Order: Act of 1952—Sec. 241(a)(2) [

(aX2)]—Nonimmigrant—remained longer than permitted
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE:
 Wiliam Z. Reich, Esquire                           James W. Grable
 Serotte, Reich, and Goldstein                      Chief Legal Officer
  300 Delaware Avenue
  Buffalo, New York 14202-1872

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members


  The respondent has submitted a motion to reopen deportation
proceedings in order to permit him to apply for suspension of deportation, or, in the alternative, for reinstatement of voluntary departure, and for a stay of deportation pending a decision in the
matter. The Service opposes the motion. The motion will be
denied.'
  A summary of the protracted history of the case is in order. The
respondent, a 35-year-old married native and citizen of the Philip-

    The Board denied the request for a stay of deportation on July 20, 1983, in response to the respondent's telephonic request of the same date.

                                         28
                                              Interim Decision #2957

pines, was admitted initially to this country on July 10, 1976, as a
nonimmigrant exchange alien as defined in section 101(aX15XJ) of
the Act, 

(a)(15)(J) (1982), for the purpose of pursuing
postgraduate medical training. His spouse and eldest son entered
the United States on the same date on "J-2" visas. The respondent's "J-1" visa and his dependents' "J-2" visas where renewed in
July 1980 to July 31, 1981. The respondent's last entry into the
United States was on July 14, 1980. He completed his postgraduate
medical training in June 1981. In the same month, the respondent's spouse filed an "H-1" petition and application for change of
nonimmigrant status under section 248 of the Act, 

(1982).
   On March 4, 1982, the Service requested the respondent to
appear at its Buffalo district office to discuss his immigration
status. The respondent appeared at the district office on March 12,
1982, at which time he requested pre-hearing voluntary departure
pending resolution of his wife's application for change of nonimmigrant status, then on appeal before the regional commissioner. The
Service, on the above date, granted him the privilege of voluntary
departure to May 11, 1982. The respondent, on the same grounds,
requested an extension of his voluntary departure data which the
Service, in its discretion, granted on May 21, 1982, setting July 5,
1982, as the new deadline for departing the United States.
  In June 1982, the regional commissioner reversed the district director's decision regarding the respondent's wife's application for
change of nonimmigrant status and granted her "H-1" status as a
temporary worker until July 1, 1983.
  The Service, in error, prematurely issued an Order to Show
Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form
I-221S), dated July 2, 1982, charging the respondent with deportability pursuant to section 241(a)(2) of the Act, 

(a)(2)
(1982), as a nonimmigrant who had remained in the United States
longer than permitted. On July 27, 1982, the Service issued a superseding Order to Show Cause against the respondent on the same
grounds. At the deportation hearing on August 20, 1982, the respondent argued that the Order to Show Cause should be cancelled
because he never received a formal response to his June 29, 1982,
letter to the district director requesting an additional extension of
his voluntary departure date. The immigration judge found no
merit in the respondent's assertion and found him deportable as
charged. lu lieu of deportation, he granted the respondent voluntary departure until September 20, 1982.
  The respondent appealed the immigration judge's decision to this
Board. On April 6, 1983, we dismissed the appeal, noting first that
                                  90
Interim Decision #2957

the respondent's pending request for extended voluntary departure
was outside the jurisdiction of both the immigration judge and the
Board; and second, that such a pending request did not preclude a
finding of deportability. We granted the respondent 30 days' voluntary departure in accordance with our decision in Matter of Chouliaris, 

 (BIA. 1977).
  On June 16, 1983, the respondent's wife filed for an extension of
her "H- 1" status to June 80, 1984. Her application was subsequently granted. The respondent again requested and received an extension of his date of voluntary departure from the district director
until July 1, 1982. The respondent again failed to depart the
United States.
  The Service issued a warrant of deportation on July 8, 1983, pursuant to the outstanding order of deportation. On the same date,
the respondent was directed to surrender for deportation on July
21, 1983, at Buffalo, New York. By letter dated July 18, 1983, the
respondent requested the district director to withdraw the warrant,
reinstate voluntary departure, or alternatively to postpone deportation pending the instant application for reopening of deportation
proceedings for presentation of a suspension application based on
the respondent's completion of 7 years' continuous physical presence in the United States- The district director, by letter dated
July 19, 1983, denied the request. On July 20, 1983, the respondent
filed the instant motion with the Office of the Immigration Judge
in Buffalo, New York. Failing, the same date, to obtain a telephonic stay of deportation from this Board, the respondent filed an application for a writ of habeas corpus in a United States district
court.
   A party seeking to reopen deportation proceedings must state the
new facts which he intends to establish and provide appropriate affidavits or other supportive evidentiary material. 

(a)
(1983). Motions to reopen will not be granted when a prima facie
case of eligibility has not been established. INS v. Wang, 

 (1981); Matter of Sipus, 

 (BIA 1972); Matter of
Lam, 

 (l3lA 1972).
   To establish prima fade eligibility for suspension of deportation,
the respondent must show that he satisfies the statutory requirements of section 244(a) of the Act, 

(a) (1982). We find
that this respondent has clearly failed to establish prima facie eligibility for suspension of deportation under section 244(a) of the
Act. Section 244(f)(2) of the Act specifically provides:
 The provisions of subsection (a) shall not apply to an alien who-



                                        30
                                                       Interim Decision #2957

    (2) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(aX15XJ), or has acquired the status of such a nonimmigrant
  exchange alien after adTrtission, in order to receive graduate medical education or
  training, regardless of whether or not the alien is subject to or has fulfilled the
  two-year foreign residence requirement of section 212(e).
The respondent herein was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15XJ). Thus,
he is statutorily ineligible for suspension of deportation.
   The respondent asserts that he is not barred from eligibility for
suspension of deportation under section 244(0(2) of the Act because
he was granted a waiver of the 2-year foreign residence requirement under section 212(e) of the Act, 

(e) (1982). He
submits that there is a "Congressional intent to distinguish between [foreign medical graduates] who entered prior to January 10,
1977, and to preserve their pre-existing remedies for relief from deportation." This Board's decision in Matter of Pereyra, 

 (BIA 1978), and the administrative regulations regarding section 212(e) waivers are cited as support for this position. See 8                       .


C.F.R. § 212.7(c)(10) (1982).
   Matter of Pereyra, however, interpreted section 244(±) prior to the
enactment of the Immigration and Nationality Act Amendments of
1981. It is clear under the present provisions of the law that individuals who were admitted on "J-1" visas are statutorily ineligible
for suspension of deportation regardless of whether or not they are
subject to or have fulfilled the 2-year foreign residence requirement
of section 212(e). Thus, neither Matter of Pereyra, nor the regulations concerning section 212(e) waivers, provide any support for the
respondent's position. The statutory language is clear and unambiguous. The respondent has identified no legislative history suggesting an interpretation at variance with the natural purport of
the statute's language. Moreover, it cannot even be asserted that
this respondent had a "pre-existing remedy" for relief from deportation under section 244(a) available at the time of enactment of
the 1981 amendments to the Act. He had clearly been in the
United States for less than 7 years at that point.
  The respondent alternatively seeks a new grant of voluntary departure. However, we have long held that in order to warrant a
new grant of voluntary departure, a respondent "must demonstrate
the existence of compelling reasons or circumstances for his failure
to depart within the time originally allotted." See Matter of Onyedibin, 

 (BIA 1974). The respondent has not shown any
compelling reason for his failure to depart within the voluntary departure period previously granted by the immigration judge and
the generous extensions granted by the district director. A further

                                        9,1
Interim Decision #2957

grant of voluntary departure is not warranted under such circumstances.
   Accordingly, the motion to reopen will be denied.
   ORDER: The motion to reopen is denied.




                               32