Interim Decision #1830 

Mazur OF BraTimps-SA.EN2 

In Deportation Proceedings 

A-11377975 

Decided by Board December 22, 1967 

.Respondent's departure from the 'United States under an order issued in depor. 

tation proceedings granting him voluntary departure but providing for his 

deportation if he failed to depart as required, was not a departure under an 

order of deportation but under a grant of voluntary departure; hence, such 

departure did not break the continuity of his residence for the purposes of 

Section 249 of the Immigration and Nationality Act, as amended. 

CHARGE: 

Osuas: Act of 1952—Section 241(a) (2) (8 U.Z.C. 1201(a) (2)3—Entered 

without inspection. 

ON BERATE or RESPONDENT: ON BFMATZ OF SERVICE: 

Arnulfo Guerra, Ilsquirs Bernabe Q. Maldonado 

Roma, Texas Trial Attorney 

(Brief Sled) 

The special inquiry officer certified his order denying respondent's 

application for adjustment of status under section 249 of the Act. The 

facts are fully stated by the special inquiry officer. The issue presented 

is whether au alien who departed from the United States voluntarily 

after an order was issued in deportation proceedings giving him the 

privilege of departing voluntarily but providing for his deportation 

if he failed to depart as required, has broken the continuity of domestic residence required by section 249 of the Act. 

The special inquiry officer found that respondent's timely -departure 

on January 7, -1959 under an order issued in deportation proceedings 

giving him voluntary departure, but requiring his deportation if he 

did not depart as required was under an order of deportation and 

therefore broke the continuity of his residence. 

The special inquiry officer is in error. Respondent's departure was 

not under an order of deportation; it was under a grant of voluntary 

departure. The order of deportation was conditioned upon the alien's 

failure to depart. The condition never came into 'being; therefore, the 

order of deportation never became effective. 

593 
Interim Decision #1830 

In Matter of Young, Int. Dec. No. 1429, the Board held that an alien 

who departed voluntarily pursuant to an order of voluntary departure 

made in deportation proceedings had not broken the continuity of 

his residence in the United States for the purpose of section 249. The 

special inquiry officer sought to distinguish the instant case from 

Young by reliance on language there that Young had not left as "the 

result of exclusion or expulsion proceedings" (at p. 4) while in the 

instant case a deportation order was outstanding. The language in 

Young is general but a careful reading of the case shows that the 

deciding factor in the case was the absence of a departure which could 

be regarded as having executed an order and warrant of deportation. 

It is clear there was a deportation proceeding there and that it had 

brought about Young's departure. 

The special inquiry officer believed that the provisions of 8 CFR 

243.5 distinguish the instant case from Young; however, he does not 

explain his conclusion and we are puzzled by it since this regulation 

provides that an alien who departed when an order of deportation is 

outstanding shall be considered deported "except that an alien who 

departed before the expiration of the voluntary departure time 

granted in connection with an alternate order of deportation shall not 

be considered to have been so deported." The regulation does not 

require respondent to be considered as one who was deported; rather, 

it requires him to be considered as one who was not deported. 

lJnder; the law and regulations respondent was not deported; there 

is no reason to 'treat him as if he were. Deportation terminates residence in the United States. It prevents the deportee from obtaining a 

visa for return, unless he gets permission, and it makes his reentry a 

felony if he returns without permission. On the other hand, voluntary 

departure permits the return of a qualified alien to the United States 

for either temporary or permanent residence. There is no inconsistency 

in permitting an alien illegally in the United States to depart to obtain documents which will enable him to reenter legally for permanent 

residence, and considering him as retaining his domestic residence. 

Mrvica v. Esperdy, 376 U.S. 560, does not apply because the alien 

there was deported. He "was not intended to be readmitted as a resident" (at p. 567). The Court refused to consider what the situation 

might have been "in the absence of a valid deportation" (at p. 567). 

The trial attorney contends that respondent's departure under the 

order of voluntary departure was an abandonment of residence (even 

though he returned on the same day) because he could not have known 

when he would return since it would take an indefinite period to obtain 

the immigrant visa. We think the reasoning is strained. The record 

594 
Interim Decision 4t1880 

shows respondent never intended to abandon his residence in the 

United States. 

The special inquiry officer stated. that if the respondent's residence 

was not broken by his departure on January 7, 1959 he was clearly 

eligible for relief. We agree with the special inquiry officer. Respondent has been in the United States since he was a small child, he is married to a legally resident alien, has two United States citizen children, 

and is highly regarded by his employer and neighbors. Respondent's 

application will be granted. 

ORDER: It is ordered that the order of the special inquiry officer of 

September 7, 1967 be and the same is hereby withdrawn. 

It is further ordered that respondent's application for lawful admission for permanent residence, limier section 249 of the Immigration Nationality Act be and the same is hereby granted.