CHAMIZO

Interim Decision #2016

MATTER OF CHAMIZO

In Deportation Proceedings A-11385946 Decided by Board November 28, 1969

Since the Service regulations require that in deportation proceedings an order be entered which will result in the proceedings being processed to a final conclusion, the special inquiry officer's grant of indefinite voluntary departure, without more, after a finding of respondent's deportability, was in error, and the case is remanded by the Board to the special inquiry of- ficer to set a time within which such voluntary departure shall take place, to include an alternate order of deportation, and for a decision on re- spondent's application for withholding of deportation under section 243(h) of the Immigration and Nationality Act. CHARGE: Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry without inspection. ON BEHALF Or SERVICE: R. A. Vielhaber Appellate Trial Attorney Henry J. Scroope, Jr. Trial Attorney (Brief filed)

The special inquiry officer has certified his decision to use for consideration and final determination. In his decision of Septem- ber 4, 1968, he found the respondent deportable as charged and denied her application for adjustment of status to that of a per- manent resident pursuant to the provisions of section 1 of the Act of November 2, 1966, P.L. 89-732 (commonly referred to as the Cuban Refugee Act). He granted the respondent the privilege of voluntary departure but did not set any date within which such departure must be effected. Because of granting voluntary departure for an indefinite period of time, he did not enter an al- ternate order of deportation. There was pending before him an application for withholding of deportation to Cuba pursuant to section 243(h) of the Immigration and Nationality Act, but such application was not acted upon in view of his decision. Although

Interim Decision #2016 the case is before us on rectification by the special inquiry officer, the Immigration and Naturalization Service filed a separate ap- peal to the decision contending that it was wrong on the law and the facts. The respondent is a 42-year-old married female alien, a native and citizen of Cuba, who arrived in the United States at Laredo, Texas on October 15, 1959, having entered the country without being properly inspected and admitted as an alien. At the original deportation hearing, held on November 19, 1959, she admitted all of the allegations of fact contained in the order to show cause ind conceded deportability. At that time, she was ordered de- )orted from the United States. No discretionary relief was ;ranted because none was requested. The proceedings were re- )pened in 1967 so that respondent could apply for adjustment of ;tatus under the recently enacted Cuban Refugee Act. Public Law 89-732 provides as follows: Notwithstanding the provisions of section 245(c) of the Immigration and Tatonality Act, the status of any alien who is a native or citizen of Cuba ,

nd who has been inspected and admitted or paroled into the United States ubsequent to January 1, 1959 ... may be adjusted by the Atttorney General .. to that of an alien lawfully admittted for permanent residence ... (em- hasis supplied). Since the respondent admittedly entered the United States ithout inspection, she was not eligible for adjustment of status nder this law and the special inquiry officer was correct in deny- ig her application. Her entering without inspection also renders deportable as charged.' We will not disturb the special inquiry officer's decision to ex- nd to the respondent the privilege of voluntary 'departure. We I, however, find error in his granting such voluntary departure

r an indefinite period of time and his failure to enter an alter- le order of deportation. When voluntary departure is granted irsuant to the provisions of section 244 (e) of the Act, it is r:umbent upon the special inquiry officer in accordance with 8 iT 244.1 to set a time within which such departure shall take ice, and he is further required by 8 CFR 242.18(c) to enter an der which will lead to a final concluding of the deportation pro- Hlings. These sections of law are as follows: 8 CFR 244.1 ?ursuant to Part 242 of this chapter and section 244 of this Act, a special uiry officer in his discretion may authorize the suspension of an alien's )ortatiton, or if the alien establishes that he is willing and has the immedi-

See Matter of Estrada-Betancourt, 12 I. & N. Dec. 191 (B.I.A., 1967).

Interim Decision #2016 ate means with which to depart promptly from the United States, a special inquiry officer in his discretion may authorize the alien to depart voluntarily from the United States in lieu of deportation within such time as may be specified by the special inquiry officer when first authorizing voluntary de- parture, and under such conditions as the District Director shall direct. (em- phasis supplied) 8 CFR 242.18(c) Order of the Special Inquiry Officer The order of the special inquiry officer shall direct the respondent's depor- tation, or the termination of the proceedings, or such other disposition of the case as may be appropriate. When deportation is ordered, the special inquiry officer shall specify the country, or countries in the alternate, to which respondent's deportation shall be directed. The special inquiry officer is au- thorized to issue orders in the alternate or in combination as he may deem necessary. We hold that 8 CFR 242.18 (c) requires that in deportation pro- ceedings an order be entered which will result in the proceedings being processed to a final conclusion, whether by the deportation of the alien, the termination of proceedings or the granting of some form of discretionary relief as provided in the Act. 2 Further, we interpret 8 CFR 243.1 as indicating that it is incumbent upon the special inquiry officer to include an alternate order of deporta- tion in his order. 8 CFR 243.1 Final Order of Deportation Except as otherwise required by section 242 (c) of the Act for the specific purposes of that section, an order of ,deportation, including an alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under Part 242 of this chapter shall become final upon dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken ... (emphasis supplied) As in the instant case, the granting of voluntary departure without an alternate order of deportation leaves the proceedings unresolved and incomplete. We point out also that the District Director is charged with the duty under 8 CFR 243.2 of carrying out the deportation of aliens found deportable by the issuance of a warrant of deportation. In the instant case he is powerless to act since there has been no final administrative order of deporta- tion on which a warrant could be based, although respondent has been found deportable as charged. We shall remand the case for the special inquiry officer to enter a proper order in accordance with this opinion. The grant of vol- 2 See Matter of lrie, 10 I. & N. Dec. 372 (B.I.A., 1963).

Interim Decision #2016 untary departure must provide for a definite time within which to depart and be coupled with an alternate order of deportation in the event respondent does not depart within that time. If re- spondent desires any extension of the time within which to de- part, her request should be made to the District Director, who has the sole authority under 8 CFR 244.2 to grant such an exten- sion. The record reflects that the respondent requested the discre- tionary relief of temporary withholding of deportation to Cuba pursuant to section 243(h), Immigration and Nationality Act, but the special inquiry officer, although stating that he would look upon the request with favor, did not act on it, undoubtedly be- cause his grant of indefinite voluntary departure had the same ef- fect of allowing respondent to remain in the United States. Since the special inquiry officer's order will now contain an alternate order of deportation, we will direct that the special inquiry officer now give consideration to the application for withholding of de- portation and incorporate his finding in his order. ORDER: It is ordered that the case be remanded to the special inquiry officer for further proceedings in accordance with this opinion.