...

Under the circumstances, the rule in Miranda does not apply to the voluntary statement of the respondent which he made prior to his arrival at the immigration office. Officer Lloyd acted within his statutory authority in transporting the respondent to the immigration office for he is enabled "to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of . . . law . . . and is likely to escape before a warrant can be obtained. . ." (8 U.S.C. 1357 (a)(2)). Furthermore, we find no substance to counsel's claim that the respondent did not intelligently and knowingly waive his rights under Miranda. There is a certification in the record signed by Officer Lloyd and another witness that the warning and waiver were read to the respondent, who also read it and affixed his signature thereto in their presence. Exhibit 3 contains a similar warning which was executed by the respondent. There is ample evidence in the record that the respondent speaks and understands the English language (p. 3). We find no support in the record for the respondent's testimony that he did not understand what he was signing when he waived his rights under Miranda (p. 51).

We affirm the finding of the special inquiry officer that the facts of record establish that the respondent was lawfully interrogated and arrested by the immigration authorities and that he has, in fact, violated his status as a student in the United States by accepting full-time employment. We conclude that the deportability of the respondent has been established by clear, convincing and unequivocal evidence.

We affirm the grant of voluntary departure in lieu of deportation and will dismiss the appeal. Since the execution of the order has been stayed during the pendency of this appeal, we will provide for the voluntary departure of the respondent within 30 days from the date of this decision.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the United States voluntarily within 30 days from the date of this decision or any extension beyond that date as may be granted by the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the order entered by the special inquiry officer.

MATTER OF YEUNG

In Deportation Proceedings

A-15750231

Decided by Board March 24, 1970

(1) A special inquiry officer has authority under current regulations to reopen deportation proceedings for the limited purpose of considering a new grant of voluntary departure to an alien who had permitted a prior grant of that privilege to expire; however, such authority does not empower a special inquiry officer to fix the departure time when authorizing voluntary departure anew.

(2) While ordinarily voluntary departure should not be granted anew in crewmen cases in the absence of strong extenuating circumstances—such as the presence of close family relationships in this country or where it appears that the failure to depart was due to circumstances beyond the alien's control-, each case must be determined on its own facts, and in exercising discretion a special inquiry officer must appraise the factors which led to the delay. In the instant case, voluntary departure is granted anew by the special inquiry officer based upon his conclusion that respondent could reasonably have construed as extensions of voluntary departure time the Service letters advising him that he would be permitted to remain in the United States pending Congressional consideration of private bills introduced in his behalf.

CHARGE:

Order: Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]—Nonimmigrant crewman-remained longer than permitted.

1

This appeal raises three questions: (1) whether a special inquiry officer has power under current regulations to reopen deportation proceedings for the limited purpose of considering a

18 CFR 242.22; 8 CFR 244.1 and 244.2.

new grant of voluntary departure to an alien who had permitted a prior grant of that privilege to expire; (2) whether, if he has such power, the special inquiry officer may also fix the departure time; and (3) whether, on the facts of this case, relief should not have been denied in the exercise of discretion.

The facts are not in substantial dispute. Respondent is a 22year-old unmarried male alien who was admitted to the United States as a crewman on January 22, 1966 and has remained here since. At a hearing before a special inquiry officer at which he was represented by counsel, he conceded deportability on the above-stated charge. In an order dated December 20, 1967, the special inquiry officer granted respondent's application for voluntary departure, with an alternate order for his deportation if he failed to depart when and as required by the District Director. His application under section 243 (h) of the Act for withholding of deportation to Hong Kong, the alternate place of deportation, was denied. Respondent did not appeal.

The District Director fixed February 7, 1968 as the limit for voluntary departure. On respondent's failure to depart, a warrant for his deportation was issued on February 9, 1968.2 On the same day, the District Director wrote him that since a private bill in his behalf was under Congressional consideration, he would be permitted to remain in the United States until February 1, 1969, or 30 days following adverse action on the bill, whichever occurs

sooner.

The private bill was not enacted and on February 19, 1969 the District Director wrote respondent that arrangements for his deportation would be made on or about March 2, 1969. In the interim, another private bill had been introduced in respondent's behalf. On February 24, 1969 the District Director wrote respondent that he would be permitted to remain until February 1, 1971 or 30 days following adverse action on the bill whichever occurs sooner. On June 26, 1969 the District Director wrote respondent that adverse action had been taken on the private bill and that steps were being taken to effect his deportation. On July 17, 1969 he was notified to surrender on July 28, 1969 for deportation to Hong Kong.

On July 24, 1969 respondent filed a motion asking that the voluntary departure privilege be restored and that he be permitted to surrender and depart under safeguards upon purchasing his own transportation; or in the alternative, that the deportation

2 The record does not reflect that respondent was notified of the issuance of the deportation warrant.

proceedings be reopened to permit a new application for voluntary departure before a special inquiry officer. The District Director declined to restore voluntary departure and a hearing was held by the special inquiry officer on the motion to reopen.

The Service's trial attorney opposed reopening on two grounds: First, that under the amended Service regulations, the special inquiry officer lacked power to grant voluntary departure anew; and second, that in any event this relief should be denied in the exercise of discretion because respondent had allegedly resorted to dilatory practices to ward off his enforced departure. Respondent's attorney contended that not only respondent but also he himself had been misled by the Service's letters into believing that what was being granted during the pendency of the private bills was an extension of voluntary departure time rather than a stay of execution of a deportation order.

On July 29, 1969, in a detailed and well-considered opinion, the special inquiry officer concluded that he has jurisdiction to grant voluntary departure anew and that such relief was warranted on the facts of this case. To avoid the possibility of further appeal or litigation, the special inquiry officer entered an order which, in form, denied the motion to reopen but which provided further that "if [respondent] leaves the United States within the period of seven days from the date of this order, namely, on or before August 6, 1969, the order of deportation will be deemed to have been simultaneously lifted and the respondent will be deemed to have departed from the United States under an order of voluntary departure in lieu of deportation." It is this order which is before us on appeal by the Service's trial attorney.

In practical effect, despite its negative form the special inquiry officer's order affirmatively granted voluntary departure anew and fixed the departure time. Viewed in this light, the order poses the three issues stated in the opening paragraph of this opinion. In presenting the Service's views on this appeal, its General Counsel has receded from the position taken by the trial attorney on one of the issues. In his memorandum in lieu of oral argument, the General Counsel states that it is the Service position that under current regulations the special inquiry officer does have power to reopen and to grant voluntary departure. The General Counsel insists, however, that in the exercise of discretion as

3 Presumably, what respondent sought and what the District Director denied was a nunc pro tunc extension of the expired voluntary departure time. See page 3081 of Service Operations Instruction 243.1, available in the Service's public reading room.

a general policy the privilege of voluntary departure should be granted only once, in the absence of very strong extenuating circumstances, which he feels are lacking here. Finally, the General Counsel argues that under the current regulation, only the District Director has power to fix the departure time when voluntary departure is thus granted anew.

The first two questions involve regulations promulgated by the Commissioner of Immigration and Naturalization governing procedures in deportation cases and the powers of Service officers with respect to such cases. The authority of the Commissioner to adopt such regulations cannot be seriously disputed. What confronts us is the proper construction of those regulations.

Originally, the special inquiry officer did not fix the time for voluntary departure, since the regulation empowered him only to authorize voluntary departure "within such time and under such conditions as the district director shall direct," 8 CFR 244.1 (1968 Supp.). District Directors were given unreviewable authority to rule on requests for extension of voluntary departure time, 8 CFR 244.2 (1968 Supp.).

Effective March 15, 1968, these regulations were amended, 33 Fed. Reg. 2381 (January 31, 1968). As amended, 8 CFR 244.1 now provides that the special inquiry officer may authorize voluntary departure "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." Amended 8 CFR 244.2 now provides that, "Authority to extend the time within which to depart voluntarily specified initially by a special inquiry officer. . . is within the sole jurisdiction of the district director." As heretofore, the District Director's decision is not appealable.

Conflicting views have been expressed among Service officials (including special inquiry officers) as to the effect of these amendments upon the powers of special inquiry officers. It has been argued that the amended regulations were designed to divest special inquiry officers of their power to reopen under 8 CFR 242.22 for the limited purpose of considering a new grant of voluntary departure to an alien who had permitted a prior grant of that privilege to expire. Under the restricted construction thus contended for, the defunct privilege could be resurrected only by a District Director, through the device of a nunc pro tunc extension of the already expired departure time, pursuant to the au

4 See Immigration and Nationality Act, sections 101 (b) (4), 103 (a) (b), and 242 (b); 8 CFR 2.1.