0402-16159
Decided by Board April 22, 1952
Voluntary departure (without order of deportation) — Statutory eligibility — Section 19 (c), Immigration Act of February 5, 1917, as amended — Ultimate grant of such relief in each case rests on its merits — General considerations whether discretion to be exercised, if alien here but short period of time and has no family ties mentioned in section 19 (c) (2) (a) of the above act, as amended.
(1) Though eligible by statute for the relief of voluntary departure, without an order of deportation under section 19 (c) of the Immigration Act of February 5, 1917, as amended, the ultimate decision to exercise such discretionary relief is predicated on the merits of the case.
(2) If an alien has been here a relatively short period of time and has no family ties mentioned in section 19 (c) (2) (a) of the above act, as amended, there are some general considerations involved which permit like treatment in substantially similar cases, insofar as the grant of such discretionary relief is concerned.
(3) An alien, who once was granted voluntary departure and who again is found here illegally, does not merit a second chance for such departure in the absence of very strong extenuating circumstances.
(4) A further grant of such voluntary departure within a reasonable time (usually 30 days) is not deemed merited; (1) if previously granted such privilege before hearing but after apprehension in deportation proceedings, and sufficient reason is not given why he did not or could not so depart; or (2) if such privilege is granted at the hearing or the alien then rejects such privilege, and persuasive reason to support contrary action is absent.
CHARGE:
Warrant: Act of 1924 — Remained longer — seaman.
BEFORE THE BOARD
Discussion: The respondent, a native and citizen of Portugal, about 45 years of age, has been ordered deported by the Acting Assistant Commissioner on the above charge. He arrived as a seaman at Norfolk, Va., December 22, 1950, on the S.S. Braga, and was admitted for the usual period of time, not exceeding 29 days. The deportability of the respondent is not questioned.
The only issue raised is whether, as a matter of discretion, voluntary departure within a reasonable time without an order of deportation should be authorized. This is the relief the respondent seeks.
It might be well at this time, broadly, to state the considerations which normally would lead to an order of voluntary departure, as a matter of discretion, in the case of aliens who have been in the United States a relatively short period of time and who do not have here the family ties mentioned in section 19 (c) (2) (a) of the Immigration Act of 1917 (as amended), and also factors which usually militate against the grant of such relief. We wish to caution that what we say here is not to be taken as an invariable rule, but that in each case the decision ultimately must be predicated upon the merits or demerits of that case. Nevertheless, when considering discretionary action, it is of the greatest importance in striving for justice and impartiality that all aliens whose cases are substantially similar receive like treatment. On this basis, we set forth a general guide as an aid toward this end.
In this discussion, it is assumed, and in the case before us it has been established that the statutory requirements for voluntary departure under section 19 (c) of the Immigration Act of 1917 are present. Voluntary departure without an order of deportation within a reasonable time, usually 30 days, ordinarily may be granted an alien of this class (1) who has not previously violated the immigration laws (or if so, that the violation was remote in point of time to facts involved in the current proceeding), (2) who establishes that he has, or very shortly will have the ability to depart at his own expense, either as a passenger or as a seaman, and (3) who makes a reasonable showing that in all good faith he will so depart within the time allotted and no reason is apparent why he will be unable to effect such departure. On the negative side, normally, aliens who entered the country as stowaways, who were smuggled into the United States, or who otherwise entered illegally where there was a design to effect permanent residence in the United States in violation of law, are denied voluntary departure.
The control of seamen has always been a troublesome problem in immigration enforcement. Under the foregoing criteria, a bona fide seaman who overstayed his shore leave ought to be given an opportunity to depart voluntarily, if able and willing to so leave. We recognize that a close factual question is often presented in regard to whether an alien was using the seaman route to gain entry into the United States, or whether the alien at the time of entry was a bona fide seaman, who after admission decided to get a job on shore and stay for a while at least. As an aid in this matter, usually a seaman should have been such occupationally for at least a year before meriting voluntary departure. On the other hand, an alien employed as a seaman who at the time of entry planned to stay here permanently or secure work on shore without having the required immigration visa, should be ordered deported. Even in this respect, an exception may be made and voluntary departure authorized if the alien for many years earned his livelihood as a bona fide seaman.
An alien who once was granted voluntary departure and who again is found here illegally, does not merit a second chance for such departure in the absence of very strong extenuating circumstances.
If an alien, after apprehension in deportation proceedings and prior to the hearing in the deportation case, has been given an opportunity to depart voluntarily within a reasonable time, usually at least 30 days, he does not merit a further grant of departure by the hearing officer unless he gives good and sufficient reasons why he did not or could not depart when granted that opportunity. Likewise, if voluntary departure is granted by the hearing officer at the hearing, or if at that hearing the alien makes it clear he does not wish voluntary departure within a reasonable time, this Board will not grant voluntary departure in the absence of very strong and persuasive reasons to support contrary action. The purpose of this limitation is apparent. An alien should not be permitted to prolong his illegal presence in this country by failure to apply for or accept voluntary departure until he has brought his case, through various procedural steps, to the last authority where such relief may be granted.
In the case before us, there is doubt as to but one element in reference to authorizing a grant of voluntary departure, that is ability promptly to depart. In other respects, the respondent qualifies without question. He came in as a bona fide seaman. While the number of years he has been a seaman is not clearly brought out in the record, he testified that it was nine or ten years since he first came to the United States and has entered many times as a sailor. He had asked for voluntary departure at the conclusion of the first hearing. The hearing officer stated that the respondent had received no assurances or promises of employment on any vessel sailing from the United States and was then being detained by the Immigration Service, and hence concluded that the respondent would not be in a position to depart from the United States if the privilege of so doing were accorded him. A further hearing was given the respondent on the basis of a motion filed by his counsel. Between the first hearing and the second hearing, the respondent had been released on bond. At the second hearing, it was brought out that if voluntary departure had been accorded at the end of the first hearing, the respondent then had sufficient funds so that he could have paid his own way out within a 30-day period.
The respondent testified that he could not pay his own way out at the time of the second hearing, but did express the view that if given a chance he could effect departure within a period of 2 months as a seaman. The normal period of voluntary departure is 30 days, not 2 months. Just because an alien indicates he wishes 2 months to effect voluntary departure, is not in itself a justifiable reason for denying him voluntary departure within a 30-day period where there is reason to believe that the alien is sincere in his desire to go out at his own expense rather than being deported, and a reasonable indication that he likely could do so is present.
We feel in this case under the broad criteria above outlined, that the respondent is entitled to an opportunity of departing voluntarily within a 30-day period. If he does not leave within that time, or such extensions thereof as the field office in its sound judgment may deem appropriate to extend, then an order of deportation will become effective and should promptly be executed.
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 30 days, upon consent of bondsman, and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.