T-2729599
Decided by the Board April 12, 1954
Voluntary departure — Ultimate grant dependent upon facts in individual case where alien here short period of time — Seaman.
While Matter of M----, 4 IN Dec. 626, points out general considerations to be applied in the grant of voluntary departure, it is not concerned with individuals who have dependent family ties in the United States and should not be taken as an invariable rule. In each instance the decision must be based on the merits or demerits of the individual case. Even though marriages occur after the institution of deportation proceedings, in the absence of some unusual factors, departure without an order of deportation should be authorized because of considerations due the spouse who is a citizen or a lawful resident.
BEFORE THE BOARD
Discussion: The Assistant Commissioner, Inspections and Examinations Division, Immigration and Naturalization Service on February 24, 1954, certified this case to the Board for final decision pursuant to the applicable regulations. The issue involved is whether or not the privilege of voluntary departure should be afforded the respondent.
The respondent, a 26-year-old married male, native and citizen of Greece, has resided continuously in the United States since his admission at Philadelphia, Pa., on February 21, 1952, as a seaman, at which time it was his intention to reship foreign in pursuit of his calling. The hearing officer upon conclusion of the hearing conducted under the warrant of arrest found that the respondent is a person of good moral character and was therefore eligible for the discretionary relief of voluntary departure but concluded that such relief should not be granted in view of the ruling in the Matter of M----, 0402-16159, 4 IN Dec. 626, B.I.A., April 22, 1952.
Upon conclusion of the hearing conducted under the warrant of arrest, the hearing officer entered an order directing the respondent's deportation from the United States on the charge stated in the warrant of arrest. Thereafter, on January 6, 1953, the hearing officer denied a motion requesting reconsideration or in the alternative for entry of an order granting voluntary departure and preexamination. On February 9, 1953, the hearing officer denied another motion requesting the aforementioned relief. This Board on May 20, 1953, dismissed the appeal from the aforementioned order of the hearing officer, concluding that since the respondent had less than 5 years residence in the United States when the warrant of arrest was served, the order of the hearing officer was final. Subsequent thereto, two motions for reconsideration were denied by the special inquiry officer on June 17, 1953, and January 4, 1954.
The respondent was taken into custody under the warrant on September 19, 1952. He was married to a citizen of the United States on October 17, 1952. A child was born on December 18, 1953. The wife, we are informed, was but 16 years of age at the time of her marriage. She is a very frail person who must depend upon her husband, the respondent, for support.
The special inquiry officer felt himself bound by the decision of this Board of April 22, 1952, in the Matter of M---- ( supra). There we pointed out general considerations to be applied in the grant of voluntary departure. That decision was not concerned with a case of an alien who had a dependent family in the United States. Moreover, the decision was stated in broad and general terms, and we took pains to point out that what was there said was not to be taken as an invariable rule but that in each instance the decision must be based on the merits or demerits of the case. Even though marriages occur after the institution of deportation proceedings, in the absence of some unusual factors we have felt that departure without an order of deportation should be authorized because of consideration due to the wife, a citizen or a lawful resident. In the instant case, there could be no doubt that dictates of humanity and fairness to the young wife and her child prescribe that the respondent ought to be given an opportunity to adjust his immigration status as rapidly as possible so that he may continue to fulfill his duties toward his family. The case having been certified to us for consideration by the Assistant Commissioner, we have jurisdiction to act. Under a recent change in policy, preexamination may also be authorized.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart voluntarily from the United States without expense to the Government, to any country of his choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer-in-charge of the district deems appropriate, conditioned upon consent of surety.
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.
It is further ordered that the alien's preexamination be authorized.