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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 departure, and under such conditions as the District Director shall direct. (emphasis supplied)

8 CFR 242.18(c)

Order of the Special Inquiry Officer

The order of the special inquiry officer shall direct the respondent's deportation, 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 authorized 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 proceedings 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 deportation 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 deportation 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 Irie, 10 I. & N. Dec. 372 (B.I.A., 1963).

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 respondent desires any extension of the time within which to depart, her request should be made to the District Director, who has the sole authority under 8 CFR 244.2 to grant such an extension.

The record reflects that the respondent requested the discretionary 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 because his grant of indefinite voluntary departure had the same effect 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 deportation 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.

MATTER OF SINGH

In Section 246 Proceedings

A-11430285

Decided by Board December 19, 1969

The running of the five-year limitation provision of section 246 of the Immigration and Nationality Act is tolled by the service upon the alien of "notice of intention to rescind” adjustment of status issued by the District Director in accordance with the provisions of 8 CFR 246.1.

RESCISSION GROUNDS: Marriage not valid for nonquota status, and quota visa not available.

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The above-captioned case concerns an interpretation of the five-year limitation provision of section 246 (a) of the Immigration and Nationality Act (8 U.S.C. 1256 (a))1 insofar as it relates to the rescission of an adjustment of a nonimmigrant alien's immigration status to that of a permanent resident alien. The special inquiry officer, on December 6, 1968, concluded that it is

1 The limitation provision of section 246 (a) insofar as it relates to a rescission of an adjustment of status under section 245 of the Act reads as follows:

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 . . . of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling deportation in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act to the same extent as if the adjustment of status had not been made.

impossible to enter an order of rescission "at any time within five years after the status of [the respondent] has been adjusted" under section 245 and terminated the proceeding. He relies upon Quintana v. Holland, 255 F.2d 161 (3 Cir., 1958). The trial attorney appeals on the ground that service of a "Notice of Intention to Rescind" within the five-year period is sufficient to toll the running of the statute.

The respondent is a native and citizen of India who was admitted to the United States at the port of New York on January 10, 1959 as a nonimmigrant student. He married a United States citizen at Reno, Nevada on July 24, 1963. An application for permanent residence status was granted on October 18, 1963. The notice of intention to rescind charges that the respondent's marriage to a United States citizen was entered into solely for the purpose of enabling him to acquire the status of a permanent resident of the United States because he never cohabited in a husband and wife relationship with his citizen wife.

The notice of intention to rescind was mailed to the respondent on September 12, 1968 by "certified mail-return receipt requested" (ex. 1). The return receipt shows that it was received by the respondent on September 19, 1968. Counsel by letter dated October 11, 1968 requested a hearing before a special inquiry officer. The hearing was held on December 6, 1968, during the course of which, counsel moved for termination of the proceeding on the ground that the proceeding is not in accord with "precedent decisions of the Board of Immigration Appeals and the Service" since "more than five years elapsed from the granting of permanent resident status on October 18, 1963, and the date of any entry of any decision in connection with the rescission proceeding" (p. 3).

Counsel in his brief on appeal relies upon Quintana v. Holland, 255 F.2d 161 (3 Cir., 1958), the Assistant Commissioner's decision in Matter of T—, 8 I. & N. Dec. 96 (1958), and an unreported decision by this Board in Matter of Ettlinger, A-12548706 (1966 and 1968). One of the issues presented in Matter of Twas whether appellate rights preserved for the alien under 8 CFR 246 prevented final disposition of the case within the fiveyear period of limitation provided by the statute. The Assistant Commissioner ruled that since the alien's application for adjustment of status was granted on June 11, 1953, the entry of an order by rescission by the District Director on June 3, 1958 tolled the five-year-period of limitation provided by the statute notwith

standing that the appellate rights to which the alien was entitled have prevented final disposition of the case within the five years.2

A similar issue was before us in Matter of Ettlinger (supra). Ettlinger's status was adjusted on October 6, 1961 and the special inquiry officer's order of rescission was entered on August 17, 1966, within the five-year period of limitation. We noted in our opinion of December 1, 1966 that the case of Quintana v. Holland is distinguishable. The case was again before us in deportation proceedings on February 7, 1968. We remanded in order to have the special inquiry officer reconsider the evidence in light of the burden of proof of clear, unequivocal and convincing evidence pursuant to the Waziri decision of the Ninth Circuit (392 F.2d 55, 1968) and the Rodriques decision of the Third Circuit (389 F.2d 129, 1968). We said in our opinion, "Reconsideration for the purpose of applying this burden of proof does not affect our prior holding that the rescission order of the special inquiry officer on August 17, 1966 was timely, and that thereafter the statute of limitations in section 246 was tolled."

We find little support for either counsel's position or that of the special inquiry officer in Matter of T—, or Ettlinger, because in those cases the issue was whether appellate rights when exercised granted the alien an immunity if the appellate proceeding was not completed within the five-year period of limitation. In this case we are concerned with whether the service of a notice to rescind or the date of the decision of the special inquiry officer tolls the running of the statute.

The Court of Appeals in Quintana v. Holland (supra) had before it a case involving the rescission of suspension of deportation on the ground that the alien's membership in the Communist Party made him ineligible therefor. Quintana's deportation was suspended by the Immigration Service on December 3, 1947, and reported to the Congress on December 15, 1947. He paid the fee on July 22, 1948, and on July 6, 1949 a congressional resolution approved suspension of deportation. The District Director notified Quintana on July 9, 1953 of his intention to rescind the grant of suspension of deportation. Following hearings in 1954 and 1955, the District Director on March 30, 1955 approved a recommendation for rescission of suspension of deportation. The Acting Regional Commissioner approved on April 11, 1955. Congress on

2 Quintana v. Holland (supra) was decided on May 23, 1958 and the Assistant Commissioner made no reference to the decision of the Third Circuit Court of Appeals in his decision of July 31, 1958.

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