The respondent, a native and citizen of Greece, admitted the truth of the allegations in the Order to Show Cause and conceded his deportability as a nonimmigrant who remained beyond the authorized period of admission. The only issues on appeal involve his application for voluntary departure.

At the hearing the respondent stated that he had married a lawful permanent resident on November 5, 1975, and that a visa petition had been submitted in his behalf. He claimed that, if he were to return to Greece, he risked being drafted into the army in Greece. He requested that the immigration judge grant him until November 17, 1976, almost one year, in which to depart voluntarily, thereby enabling him to remain here and to apply for adjustment of status once his visa petition was approved. Having found the respondent statutorily eligible for voluntary departure under section 244(e) of the Immigration and Nationality Act and deserving of the relief, the immigration judge stated that the discretion given to him under the Act did not contemplate such a lengthy grant of voluntary departure time. He did, however, give the respondent five months within which to depart voluntarily.

On appeal counsel for the respondent contends that the immigration judge erred in concluding that he was without authority to grant the amount of voluntary departure time requested. Counsel is correct. Neither the statute nor the regulations contain any provision limiting the amount of voluntary departure time which may be given. Although 8 C.F.R. 244.1 provides that the alien applying for the privilege of departing voluntarily must establish that he is willing and has the immediate means with which to depart promptly, it expresses no limitation on the amount of time the immigration judge may grant. That decision lies solely within the discretion of the immigration judge.

The respondent in the present case requested permission to depart voluntarily before November 17, 1976. Inasmuch as that date passed while the appeal was pending, we see no reason to remand the record to the immigration judge for a new decision. Consequently, we shall dismiss the appeal.

Another issue remains to be discussed: whether the taking of an appeal tolls the running of the grant of voluntary departure made by the immigration judge. This issue was raised by the Immigration and Naturalization Service at oral argument, and briefs have been submitted by both parties.

In Matter of Villegas Aguirre, 13 I. & N. Dec. 139 (BIA 1969), we held that a timely appeal not only stays the execution of the immigration judge's decision during the pendency of the appeal but it also tolls the running of the voluntary departure authorization. Our holding in Aguirre, where a 30-day period of voluntary departure was involved, was designed to guard against any possibility that the taking of an

appeal might result in the loss of the privilege of voluntary departure. The application of the rule of Aguirre to the present case would rest in the reinstatement of the five-month grant of voluntary departure as of the date of this decision. The Service urges that we overrule our decision in Aguirre.

The alien in deportation proceedings must be assured that he will not risk losing a grant of voluntary departure by filing an appeal from an adverse decision of an immigration judge. To the extent our decision in Aguirre holds that a grant of voluntary departure made by an immigration judge shall not be jeopardized by taking an appeal, it is affirmed. The fact that the voluntary departure period is tolled during the pendency of the appeal protects the alien's right to appeal. However, in some cases the precise rule as enunciated in Aguirre has had another, less desirable effect: it has provided a mechanism to prolong unduly the departure of deportable aliens. Aguirre dictates that the amount of voluntary departure time which was originally granted by the immigration judge be reinstated after we have rendered our decision. The particular purpose for a lengthy grant may be fulfilled while the case is before us on appeal, or it may no longer exist. To the extent that Aguirre requires that we reinstate the same amount of voluntary departure time, it is disapproved and is modified as follows: If an immigration judge provided for a voluntary departure period of 30 days or less, we shall reinstate the original grant. In those cases in which a period exceeding 30 days has been granted, the respondent will be given 30 days from the date of our decision in which to depart voluntarily. Where the original grant has not yet expired and the remaining period exceeds 30 days, the respondent shall be permitted to depart voluntarily on or before the date specified by the immigration judge.'

At the hearing in the present case, the respondent was granted five months in which to depart voluntarily. He requested almost a year. Over a year has elapsed since the hearing in December 1975. At the time of the original grant, a visa petition had been filed in his behalf by his lawful permanent resident spouse. The petition has since been withdrawn. There is no longer any reason to prolong his departure. Accordingly, the respondent will be given 30 days from the date of this decision to depart voluntarily from the United States.

ORDER: The appeal is dismissed.

FURTHER ORDER: The respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.

We note that the District Director is authorized to extend the period during which the alien may depart the United States voluntarily. (8 C.F. R. 244.2)

MATTER OF ABEBE

In Exclusion Proceedings

A-22126130

Decided by Board March 30, 1977

(1) Applicant applied for admission as a student. He had no visa or other valid entry document and his only travel document was a refugee travel document issued by the Government of Kenya. He was paroled into the country under section 212(d)(5) of the Immigration and Nationality Act for further inspection. His exclusion proceeding was postponed pending an asylum hearing. Asylum was denied; the applicant was ordered excluded, and he appealed.

(2) 8 C.F.R. 108.2 requires departure to be withheld for 30 days after notification of the Department of State of the filing of an application for asylum. It does not require the exclusion hearing itself to be so delayed.

(3) Since the Kenya refugee travel document was not issued pursuant to 8 C.F. R. 223a.2, it was not a refugee travel document as contemplated in Service regulations and 8 C.F.R. 236.3(e) which provides that certain holders of refugee travel documents may not be excluded was not applicable.

(4) Since applicant was paroled into the United States under section 212(d)(5) of the Act, he was not "lawfully in" the United States and therefore Article 32 of the Protocol Relating to the Status of Refugees did not apply to him.

EXCLUDABLE:

Act of 1952-Section 212(a)(20) [8 U.S. C. 1182(a)(20)]—Immigrant-no visa Act of 1952-Section 212(a)(26) [8 U.S.C. 1182(a)(26)]—Nonimmigrant student nonimmigrant visa

ON BEHALF OF APPLICANT: Harvey Kaplan, Esquire

Greater Boston Legal Services

793 Tremont Street

Boston, Massachusetts 02118

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

In a decision dated November 19, 1976, the applicant was found excludable as an alien seeking to enter the United States to study without a nonimmigrant visa or any other valid entry document. The applicant has appealed from the decision of the immigration judge. The appeal will be dismissed.

The applicant is a 22-year-old native of Ethiopia. He fled to Kenya in

July 1976, apparently fearing persecution for political reasons. He was granted a refugee travel document by the Government of Kenya pursuant to the U.N. Convention Relating to the Status of Refugees of 1951. On August 17, 1976, he arrived in New York seeking admission as a student. He was paroled into the United States for inspection in Boston. He was thereafter placed in exclusion proceedings.

On October 8, 1976, the applicant appeared before the immigration judge and stated that he wished to file an application for political asylum in the United States. In accordance with Operations Instructions 108.1(c), the exclusion hearing was postponed until the District Director issued his decision on the asylum request. On November 1, 1976, the District Director denied the applicant's request for asylum and informed him that the exclusion hearing would be held on November 19.

Counsel for the alien contends that the District Director denied his client's request for asylum because he incorrectly assumed that the applicant could return to Kenya. It is alleged that the District Director should have considered whether the applicant would be subject to persecution if he is forced to return to Ethiopia.

Counsel presumably recognizes that no appeal lies from the decision of the District Director upon a request for asylum. 8 C.F.R. §108.2. He instead argues that the immigration judge did not have jurisdiction in the exclusion proceeding because of the alleged failure of the District Director to make a proper decision upon the request for asylum. We reject this argument. We also reject counsel's contention that 8 C.F.R. $108.2 requires the immigration judge to wait for 30 days following the date when the District Director notified the Department of State of his decision upon the request for asylum before commencing the exclusion hearing. That regulation only states that "departure shall not be enforced until 30 days following the date of notification." The conduct of an exclusion hearing obviously precedes and is distinct from the enforcement of departure.

Counsel also contends that the alien was not excludable because of 8 C.F.R. $236.3(e). That regulation states, in pertinent part:

Aliens who are the holders of valid unexpired refugee travel documents may be ordered excluded only if they are found to be inadmissible under section 212(a)(9), (10), (12), (23), (27), (28), (29), or (31) of the Act, and it is determined that on the basis of the acts for which they are inadmissible there are compelling reasons of national security or public order for their exclusion.

Counsel recognizes that 8 C.F.R. §223a.2 defines "refugee travel document" as "a document issued by the Service on Form I-571 in implementation of Articles 28 of the U.N. Convention of July 28, 1951, and in accordance with the provisions of this part."

The applicant's refugee travel document was issued by the Government of Kenya, not by the Service.

Nevertheless, counsel contends that the Service must recognize the refugee travel document issued in Kenya as the equivalent of one issued by the Service. Counsel argues that this is compelled by the U.N. Convention of 1951 which the United States adhered to when it signed the Protocol Relating to the Status of Refugees of 1967.

Counsel particularly cites Article 32 of the Convention, which provides: "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security and public order." (Emphasis added.)

It is obvious that the applicant is not "lawfully in" the United States. Since he was paroled into the United States, he is not even "in" this country for purposes of immigration law, much less "lawfully in." Section 212(d)(5) of the Immigration and Nationality Act. Leng May Ma v. Barber, 357 U.S. 185 (1958); Kaplan v. Tod, 267 U.S. 228 (1925); Low v. Attorney General, 479 F.2d 820 (9 Cir.), cert. denied 414 U.S. 1039 (1973); Luk v. Rosenberg, 409 F.2d 555 (9 Cir.), cert. dismissed 396 U.S. 801 (1969).

Counsel's interpretation of Article 32 of the Convention has been repeatedly rejected. Chim Ming v. Marks, 505 F.2d 1170 (2 Cir. 1974); Kan Kam Lin v. Rinaldi, 361 F. Supp. 177 (D. N.J. 1973), aff'd 493 F.2d 1229 (3 Cir. 1974); Matter of Dunar, 14 I. & N. Dec. 310, 315-16 (BIA 1973).

ORDER: The appeal is dismissed.