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.

IN THE MATTER OF A— I——— C—

In DEPORTATION Proceedings

A-6606596

Decided by the Central Office April 22, 1952

Status-Section 4 (e) student-Inducted into United States military serviceEffect on terms of admission and student status.

(1) An alien admitted as a student under section 4 (e) of the Immigration Act of 1924 who is thereafter inducted into the United States Army is not considered as having failed to fulfill the conditions of his admission, provided such induction occurred while he was lawfully maintaining his status as a student.

(2) The status of student who has been inducted into the United States Armed Forces under the conditions above described is considered as suspended for the period of time he was in the Armed Forces. If during his military service, he makes a short visit to another country in the Western Hemisphere and returns to the United States without presenting an immigration visa or other permit to enter, he will not be found deportable under the Immigration Act of 1924, for the reason that this would have imposed a greater burden on him than he would have had to meet had he applied for admission as a student. (3) After an honorable discharge from the Armed Forces, such a student should be allowed a reasonable time to make arrangements with an approved school for the continuation of his studies and resumption of his student status.

CHARGES:

Warrant: Act of 1924-No immigration visa.

Act of 1918-No passport.

BEFORE THE CENTRAL OFFICE

Discussion: The subject is a 25-year-old single male, a native and citizen of the Philippines, who was admitted to the United States on September 19, 1946, at San Francisco, Calif., as a student under section 4 (e) of the Immigration Act of 1924. He continued in his student status under various extensions of stay, the last of which was dated July 21, 1950, and in which his stay was extended to March 12, 1951. Prior to the expiration of this last stay, to wit: On September 28, 1950, he was inducted into the United States Army and was a member thereof until his honorable discharge on August 17, 1951. While a member of the Army he was stationed at El Paso, Tex., and while on an off-duty pass, he crossed the border into Mexico on March

2, 1951, returned the same day. It is on the basis of this last arrival in the United States that the warrant of arrest was issued.

It is the view of this Service that a student under section 4 (e) of the Immigration Act of 1924, who is inducted into the Armed Forces. of the United States shall not be considered as having failed to fulfill the conditions of his admission, provided such induction occurs while he is in a legal status, and the legality of his status shall be considered as suspended during the period of his military service. The respondent was maintaining his status as a student at the time of his induction. His status therefore is considered as suspended for the period of time he was in the Armed Forces; i. e., from September 2, 1950, to August 17, 1951. It follows that he should not be required on return from Mexico to present either an immigration visa or passport, for this would impose upon him a greater burden by reason of his military service, than he would have to meet had he applied for admission as a student. It is therefore concluded that the proceedings under the warrant of arrest should be terminated.

Respondent through his counsel has applied for permission to continue his studies in the United States. It is believed that as a corollary to the policy enunciated above, that the alien returning from duty in the Armed Forces after an honorable discharge, should be continued for a reasonable time in his student status to arrange for the continuation of his studies. What constitutes a reasonable time must of necessity depend upon the circumstances in each case.

In the case under consideration, the warrant of arrest was issued before the alien was discharged and the hearing was held shortly after his discharge. The hearing officer found the alien subject to leportation. With these conditions facing him, it cannot be considered as unreasonable that the respondent has not made commitments for additional schooling. It is believed therefore that the respondent should be given a reasonable time, not to exceed 6 months from the date of notification of this order, to make arrangements with an approved school for the continuation of his studies, and maintenance of his student status.

Order: It is ordered that the proceedings under the warrant of arrest be terminated.

18 C. F. R. 175.203 (d) waives the requirement of an immigration visa for students returning from short visits to Western Hemisphere countries. The respondent did possess a valid Philippine passport but the record shows he was admitted on presentation of his off-duty pass and was not asked to present the passport. So far as returning to the school was involved, his off-duty pass showed that he was returning to the only establishment to which the Government would permit his return at that time.

IN THE MATTER OF C

In VISA PETITION Proceedings

VP-446985

A-7283133

Decided by Board April 23, 1952

Visa petition-Beneficiary wife/niece-Section 9, Immigration Act of 1924— Marriage in Rhode Island-Cohabitation in Pennsylvania thereafter.

(1) A marriage between uncle and niece of the Hebrew faith in Rhode Island (1950) is lawful in that State.

(2) A celebration of such a marriage in Pennsylvania is unlawful.

(3) An uncle and niece lawfully marry in Rhode Island and thereafter cohabit in Pennsylvania, where such a marriage is considered voidable rather than void ab initio. Absent any authority to the contrary, the assumption is unwarranted that it was the intention of the legislature of the State of Pennsylvania to criminally prosecute persons lawfully married in Rhode Island because they cohabit in Pennsylvania where the celebration of such marriages is unlawful, and under the circumstances it would hardly seem reasonable that the State of Pennsylvania would criminally prosecute the parties to such marriage prior to the litigation of its validity.

(4) It is well established that the marriage of an uncle and his niece is considered lawful for immigration purposes if valid where performed and if the State in which they intend to reside does not regard the cohabitation of such persons therein as criminal (37 Op. Atty. Gen. 102, 1933).

BEFORE THE BOARD

Discussion: This case presents an appeal from orders entered by the Assistant Commissioner on July 13, 1951, and December 20, 1951, denying a petition for the issuance of an immigration visa filed pursuant to section 9 of the Immigration Act of 1924 for the purpose of securing nonquota status for the above-captioned beneficiary as the wife of a naturalized United States citizen within the meaning of section 4 (a) of the same act. The orders entered by the Assistant Commissioner are predicated upon a finding that the petitioner/husband, a resident of Pennsylvania, and the beneficiary/wife, a native of Germany, would be subject to criminal prosecution in the State of Pennsylvania, the situs of their proposed cohabitation, because their marriage is not recognized as valid in that State. Counsel in his exceptions to the order relies primarily on article IV, section 1, of the