factual allegations of the order to show cause and conceded deportability. Both applied for voluntary departure. The respondent testified that he had lived in Spain the first fourteen years of his life, then had fled to France where he remained close to a year. He was given residence rights in Chile, where he had resided for approximately 30 years before entering the United States. The special inquiry officer found both the respondent and his wife deportable and asked them to designate a country to which they desired to be sent if deportation should be required. Both designated Spain and the special inquiry officer stated that he would direct deportation to Spain if deportation should be required (Tr. p. 7). He entered an order granting then until July 13, 1971 to depart voluntarily, with an alternate order for deportation to Spain if they failed to depart. No alternate country of deportation was specified by the special inquiry officer. Appeal was waived and the order became final. Respondent thereafter retained counsel, who on July 31, 1971 filed an unsupported motion to reopen. In it, he asserted that respondent "no longer has any ties, family or otherwise, in [Spain]"; that neither Spain nor Chile would be an appropriate country of deportation, since he is neither Fascist nor Communist; and that he would be subject to persecution if deported to either country. The motion concluded, "The respondent will present evidence in the form of oral testimony, affidavits and numerous newspaper articles to support his claim to such anticipated persecution." The Service opposed the motion, pointing out that both respondent and his wife had designated Spain at the deportation hearing and that neither had then asserted any claim of persecution if sent to that country. In the brief order before us on appeal, the special inquiry officer denied the motion for the reasons advanced by the Service. The motion does not comply with the requirements of 8 CFR 242.22 and 103.5. It does not state the new facts to be proved at a reopened hearing and is unsupported by affidavits or other evidentiary material. The conclusory allegation that "persecution would result" is not sufficient. Neither is the generalized statement that the respondent will present evidence in the form of oral testimony, etc., at a reopened hearing. Insofar as Spain is concerned, insufficient facts have been offered to warrant reopening. The allegations with respect to Chile are not only insubstantial but irrelevant; that country has not been named even as an alternate destination. In his brief on appeal, counsel raises an additional point not heretofore considered. He charges that the special inquiry officer did not comply with the provisions of the regulation requiring him to inform the respondent of the right to apply for withholding under section 243 (h) of the Act. That regulation, 8 CFR 242.17 (c), provides in pertinent part as follows: The special inquiry officer shall notify the respondent that if he is finally ordered deported his deportation will in the first instance be directed pursuant to section 243 (a) of the Act to the country designated by him and shall afford the respondent an opportunity then and there to make such designation. The special inquiry officer shall then specify and state for the record the country, or countries in the alternative, to which respondent's deportation will be directed pursuant to section 243 (a) of the Act if the country of his designation will not accept him into its territory, or fails to furnish timely notice of acceptance, or the respondent declines to designate a country. The respondent shall be advised that pursuant to section 243 (h) of the Act he may apply for temporary withholding of deportation to the country or countries specified by the special inquiry officer and may be granted not more than ten days in which to submit his application. (Emphasis supplied.) The statutory scheme, as implemented by the regulations, seems clear. The deportable alien is given the first choice. Both the statute, section 243 (a), and the regulation quoted above give him the power to "designate" the country of deportation. If the alien. Notification of the right to apply for section 243 (h) withholding is required only with respect to the country or countries tion to alternate countries. The regulation authorizes the special inquiry officer to "specify" the alternate country or countries, which are obviously different from the one "designated" by the aiien. Notification of the right to apply for section 243 (h) withholding is required only with respect to the ctuntry or countries "specified" by the special inquiry officer. Notification of this right is not compelled with respect to the country "designated" by the alien; presumably, given the power of choice, a deportable alien would not choose a country where he fears he will be persecuted. The better practice might be to ask the alien whether he fears persecution in any of the countries named, either as the first or alternate destination, regardless of whether the country is "designated" by the alien or "specified" by the special inquiry officer, and to advise him of his right to apply for section 243 (h) withholding in any named country. The regulations, however, do not require it. We find no basis, on this record, to conclude that the 2 We note that some special inquiry officers have adopted this course. The practice is not uniform. respondent has been prejudiced by failure of the special inquiry officer to give him this advice which the regulation does not require. The facts thus far presented do not make out even a prima facie showing that the respondent is likely to be persecuted in Spain within the meaning of section 243 (h). ORDER: The appeal is dismissed. MATTER OF MARALLAG In Deportation Proceedings A-17833582 Decided by Board November 5, 1971 Respondent's deportation hearing was properly held in absentia where she was notified of the time and place of hearing, she had a reasonable opportunity to be present, and she has shown no reasonable cause for her failure to attend (section 242 (b), Immigration and Nationality Act). CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant visitor-remained longer. ON BEHALF OF RESPONDENT: John L. Weir, Esquire 483 Castro Street San Francisco, California 94114 ON BEHALF OF SERVICE: Stephen M. Suffin Respondent appeals from the special inquiry officer's order requiring her deportation. The appeal will be dismissed. We find respondent deportable, but we will grant voluntary departure. The deportation hearing was held in absentia. Exhibits introduced at the hearing establish that the respondent, a 29-year-old single female, a native and citizen of the Philippines, admitted as a temporary visitor for pleasure on April 5, 1971 for a period ending May 15, 1971, did not receive an extension of stay. The record establishes respondent's deportability. In a brief submitted on appeal counsel contended that he could not be present at the deportation hearing because he was busy. He stated that respondent "was not able to receive a notice" of the hearing. There is no further explanation and no affidavit from respondent on the matter. The trial attorney stated counsel did not ask for an adjournment. In the brief, counsel requested additional time within which to file a brief. The request was granted by the special inquiry officer. The other further communication from counsel is a letter dated September 17, 1971 in which he asked that action in the deportation proceeding be held in abeyance pending the outcome of the respondent's petition for a third preference visa. (A letter in the file reveals respondent's petition has now been denied because she lacked a labor certification.) The trial attorney has filed a brief requesting that the finding of deportability be upheld. He stated that the Service would not oppose a grant of voluntary departure. The hearing was properly held in absentia. Respondent had a reasonable opportunity to be present and she showed no reasonable cause for her failure to attend, section 242 (b) of the Act (8 U.S.C. 1252 (b)). The record establishes that the Service notified the respondent by certified mail of the deportation charges and of the time and place of hearing. A receipt is in evidence showing the Service notice was received at the respondent's address. The trial attorney stated that counsel also had been notified of the time and place of the hearing. There was no reason to postpone the hearing because respondent had filed a petition for a third preference visa, Bowes v. District Director, 433 F.2d 30 (9 Cir., 1971). ORDER: The special inquiry officer's order is withdrawn. Further order: The alien is permitted to depart from the United States voluntarily without expense to the Government, to any country of her choice, within such period of time, in any event not less than 30 days, and under such conditions as the officer-in-charge of the District deems appropriate. Further Order: In the event of failure so to depart, the respondent shall be deported from the United States to the Philippines on the charge set forth in the order to show cause. |