F-075662
Decided by the Board September 25, 1953
Voluntary departure — Section 244 (e) Immigration and Nationality Act — Deportability must be based on one of the grounds enumerated therein in order to establish ineligibility under that section.
An alien should not be held ineligible for voluntary departure under section 244 (e) of the Immigration and Nationality Act as one deportable under section 241 (a) (5) of that act for failure to comply with section 265 of the act, unless his deportation is ordered on that ground.
CHARGE:
Warrant: Act of 1952 — Stowaway.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding respondent statutorily ineligible for voluntary departure and ordering his deportation on the ground stated above.
Deportability is conceded. The sole question concerns the respondent's legal eligibility for voluntary departure. He is not eligible for suspension of deportation.
The special inquiry officer found that the respondent had failed to comply with section 265 of the Immigration and Nationality Act requiring that an alien notify the Attorney General of his current address in January 1953; that the respondent was aware of this provision of law, but failed to register through fear that registration would result in his apprehension. Such a failure to register is a ground for deportation (Immigration and Nationality Act, section 241 (a) (5)) and one deportable on such a ground is ineligible for voluntary departure with an exception not applicable herein ( Matter of M----, 0300-430947, May 6, 1953, Int. Dec. No. 438). Although the alien has not been found deportable on such ground and in fact has not even been charged with deportability on that ground, the special inquiry officer has found him statutorily ineligible for voluntary departure, as if the alien had been ordered deported on the charge in question. This is error. We believe that an alien should not be held ineligible for voluntary departure as one deportable on the ground that he had failed to comply with section 265 unless his deportation on that ground is ordered.
The alien herein is not one who has been ordered deported on the ground in question. Since this is so, a finding that the alien is statutorily ineligible for voluntary departure as one deportable under section 241 (a) (5) is not proper. We will therefore order proceedings reopened for further appropriate proceedings.
Order: It is ordered that action in accordance with the foregoing be taken.