« ÎnapoiContinuați »
thorization spelled out in the internal Service instructions referred to in footnote 3, supra.
The construction of administrative regulations calls into play the same rules of interpretation as are applicable to the construction of statutes. Like statutes, administrative rules must be construed to effectuate the intent of the enacting authority. We must look to the plain meaning of the language of the regulation and to the purpose behind its promulgation, Rucker v. Wabash Railroad Company, 418 F.2d 146 (7 Cir., 1969).
The language of the regulations under review does not indicate any purpose to restrict to District Directors the renewal of the voluntary departure privilege, to the exclusion of special inquiry officers. The General Counsel asserts that the 1968 amendments were designed to increase the special inquiry officer's authority, not to diminish it. This conclusion is supported by the meagre documentary evidence available as to the origins of the amendments. We may safely assume that, in view of the contrariety of opinion heretofore expressed, the General Counsel made due inquiry of those in the Service responsible for the promulgation of these regulations, including the Commissioner, before representing to us what their underlying purpose was. In appraising the Service's regulations, we should ordinarily give the Commissioner's words the meaning he tells us he intended they should have, especially where, as here, they are reasonably susceptible of such a construction.
We conclude that the special inquiry officer correctly held that he had power to reopen and to grant voluntary departure under these circumstances.
There is still a distinction, however, between the authority to grant voluntary departure and the authority to specify the terms and conditions of that privilege. The amended regulation empowers a special inquiry officer to specify the limits of the departure time “when first authorizing voluntary departure.” A reasonable construction of this language would be that the special inquiry officer is not permitted to fix the departure time when again authorizing voluntary departure, this being left for the District Director, as heretofore. The Service now urges this view upon us
5 They appear to have their genesis in a letter dated March 1, 1967 to the Commissioner from the Association of Immigration and Nationality Lawyers, recommending that special inquiry officers be given greater authority in this and other regards. The letter was published in the Association's Immigration Bar Bulletin, Vol. XX, No. 1, January-June, 1967, pp. 5–6.
and we think it is correct. Accordingly, we now hold that the special inquiry officer erred in fixing the departure time in this case.
Conceding that the special inquiry officer had authority to grant voluntary departure anew, the General Counsel contends that this relief should have been denied in the exercise of discretion. He points to the troublesome enforcement problems presented by deserting crewmen and to the Board's long-standing policy not to grant voluntary departure to a crewman a second time "in the absence of very strong and persuasive reasons," Matter of M-, 41. & N. Dec. 626 (BIA, 1952).
While the roles of this Board and of the special inquiry officers are essentially adjudicative in nature, we cannot ignore the effect of our decisions on the enforcement of the immigration laws. In determining whether or not to grant discretionary relief from deportation, one of the elements to be considered is whether a grant will encourage other aliens similarly circumstanced to violate the laws. This Board long ago pointed out that under some circumstances effective administration of the immigration laws may require an outright denial of voluntary departure in the first instance, Matter of D-F-, 41. & N. Dec. 589 (A.G., 1952).
Voluntary departure is beneficial both to the Service and to the alien; but if the alien does not depart promptly, as contemplated, the Service becomes involved in further and more costly procedures by his attempts to prolong his illegal stay here and the original benefit to the Service is lost. If, after years of obstruction and delay, the alien is again rewarded with the opportunity for voluntary departure which he has previously spurned, what incentive is there for any alien similarly circumstanced to depart promptly when first given the opportunity? A reasonable rule to apply in crewman cases would be that ordinarily voluntary departure should not be granted anew 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 respondent's control.
It has been contended, in this and other cases, that the Service has abruptly and without notice changed its policy with regard to voluntary departure in crewman cases; and that it is unjust to apply the new policy to crewmen who had failed to depart on advice of their attorneys, who relied on the continuance of the former policy. It has been alleged that before June, 1969 District Directors invariably restored voluntary departure, by the nunc pro tunc device above referred to, whenever a crewman showed he had the documents and transportation needed for immediate departure.
We need not inquire whether these allegations of an invariable practice are correct. It seems clear, from the change effective July 30, 1969 in the Service's Operations Instructions referred to in footnote, 3, supra, that there has indeed been a switch in Seryice policy. It would be wholly unrealistic, however, to expect the Service to adhere to old enforcement policies in the face of changed enforcement problems. In exercising discretion, the special inquiry officers and this Board are entitled to take into account the enforcement needs of the Service in the light of changing circumstances.
Each case must, of course, be determined on its own facts and in exercising his discretion the special inquiry officer must appraise the factors which led to the delay. Litigation, whether administrative or judicial, usually results in some delay. Yet, as the special inquiry officer in this case pointed out, not all litigation is by that token frivolously dilatory.
The special inquiry officer has concluded that the respondent could reasonably have construed the Service letters concerning the private bills as extensions of voluntary departure time, and that respondent's failure to depart under these circumstances cannot be considered a deliberate defiance of constituted authority. It cannot be said, of course, that the Service letters must be construed as misleading in all circumstances. In this case, however, in view of the peculiar facts and the chronology of the events, we cannot say that the special inquiry officer's conclusion was without foundation. We will, accordingly, not disturb his grant of voluntary departure in this case. We must remand, however, for the entry of a proper order with respect to the time and conditions of departure.
ORDER: It is ordered that the proceedings be remanded to the special inquiry officer for the entry of an order consistent with the views expressed in the foregoing opinion.
MATTER OF CAMPTON
In Deportation Proceedings
Decided by Board April 3, 1970
Respondent, who is a crewman by occupation, and whose last entry was
sought and gained solely in pursuit of his occupation, having served on a pleasure craft for which he was receiving remuneration but no regular salary, is statutorily ineligible for adjustment of status under section 245, Immigration and Nationality Act, as amended, notwithstanding his admission as a temporary visitor for pleasure upon presentation of a valid nonimmigrant visa. (Matter of Rebelo, Int. Dec. No. 1926, distinguished.]
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251]—Nonimmigrant
(temporary visitor for pleasure)-remained longer.
ON BEHALF OF RESPONDENT: Robert O. Wells, Jr., Esquire
Long, Mikkelborg, Wells & Fryer
The 39-year-old respondent is a single male alien, a native and national of Australia. He completed an apprenticeship course for the trade of baker and pastry cook in his native land in 1951, and for the next seven years operated his own bakery shop in Tasmania. He sold that business in 1958, and since then has centered his life around racing and/or pleasure yachts.
The respondent's immigration record since 1958 shows many entries into the United States as a crewman, as a transit alien, and as a temporary visitor. But our concern here is limited to his more recent entries.
On April 28, 1967, the respondent obtained a nonimmigrant visa of the B-2 type (temporary visitor for pleasure) at the United States Consulate in Mazatlan, Sinaloa, Mexico. That document was valid for multiple application for admission at United States ports until April 27, 1971. He was admitted to this country with it on April 30, 1967, for a period of six months. He remained beyond the authorized period of his admission, but was given permission to depart voluntarily on or before January 2, 1968, and he left for Canada on January 1, 1968.
The respondent last arrived in the United States at Blaine, Washington, by automobile, on March 4, 1968. On September 20, 1968, these deportation proceedings were instituted against him by the issuance and service of an order to show cause containing, inter alia, the following factual allegations:
4. You were admitted as a nonimmigrant visitor for pleasure (B-2) to
March 4, 1968; 5. You failed to comply with the conditions of your nonimmigrant status by
accepting employment and you were directed to depart from the United
States on or before August 6, 1968; 6. You have remained after August 6, 1968; and charging him, on the basis thereof, with being subject to deportation under section 241 (a) (2) of the Immigration and Nationality Act (8 U.S.C. 1251), in that: After admission as a nonimmigrant under section 101 (a) (15) of said act (8 U.S.C. 1101) you have remained in the United States for a longer time than permitted.
On September 30, 1968, a special inquiry officer granted the respondent the privilege of voluntary departure, but provided for his deportation from the United States to Canada, alternatively to Australia, on the above-stated charge, in the event of his failure to so depart. That decision became final for want of an appeal but the respondent who, on July 31, 1968, had become the beneficiary of an approved sixth preference visa petition, did not depart as authorized. Instead, on April 4, 1969,2 he successfully moved for a reopening of his deportation proceedings for the purpose of filing and prosecuting an application for adjustment of his status to that of a permanent resident.
On September 18, 1969, a second special inquiry officer left undisturbed the order entered by the prior special inquiry officer a year earlier, after finding that the respondent was a crewman and, thus, ineligible for relief under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255), which reads: The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney
1 A visa number was not then available to him. 2 By this time a visa number had become available.