Interim Decision #2242 

MATTER OF PALMA 

. In Deportation Proceedings 

A-7140179 

Decided by Board November 9, 1973 

An alien's departure from the United States in 1973 while under a final order of 

deportation served to execute the outstanding deportation order, thereby 

mooting the deportation proceedings. Accordingly, a motion to reopen the 

deportation proceedings to apply for suspension of deportation cannot be 

granted, notwithstanding the alien's departure was followed by reentry the 

same day (Fleuti v. Rosenberg, 374 U.S. 449 (1963), inapplicable). 

CHARGE: 

Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1361(0)(2)]—Entered without 

inspection 

ON BEHALF OF RESPONDENT: Robert L. Milland, Esquire 

El Paso Legal Assistance Society 

109 North Oregon Street, Suite 919 

El Paso, Texas 79901 

On April 26, 1962, an immigration judge found the respondent 

deportable as charged in the Order to Show Cause and ordered his 

deportation. Appeal from that decision was waived and the deportation order became finaL On May 2, 1973, an immigration judge 

granted a motion to reopen the deportation proceedings so that 

the respondent could apply for suspension of deportation. Unknown to the immigration judge, the respondent had departed 

from the United States on April 8, 1973, returning the same day. 

The Immigration and Naturalization Service moved to vacate the 

order to reopen. In an order dated May 23, 1973, the immigration 

judge granted the Service's...motion to vacate on the ground that 

the respondent's departure from the United States had executed 

the outstanding deportation order, thereby mooting the deportation proceedings. The respondent has appealed from that order. 

The appeal will be dismissed. 

Section 101(g) of the Immigration and Nationality Act states: 

For the purpose of this Act any alien ordered deported ... who has left the 

United States, shall be considered to have been deported in pursuance of law, 

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Interim Decision #2242 

irrespective of the source from which the expenses of his transportation were 

defrayed or of the place to which he departed. 

8 CFR 243.5 states, in part: 

... Any alien who has departed from the United States while an order of 

deportation is outstanding shall be considered to have been deported in pursuance of law. 

• • 

The respondent has conceded that he departed the United 

States on April 8, 1973, while he was under an order of deportation. It is well established that an alien's departure while under an 

order of deportation executes that order pursuant to section 101(g) 

of the Act. Mrvica v. Esperdv, 376 U.S. 560, 563-64 (1964); Matter of 

Solis-Davila, 13 I. & N. Dec. 694 (INA 1971), affd Solis Davila v. 

INS, 456 F.2d 424 (C.A. 5, 1972). Consequently, the respondent was 

deported pursuant to the law. 

Since the respondent's departure executed the deportation order, there are no longer any deportation proceedings pending 

which could be reopened. Therefore, the immigration judge was 

correct in his determination that the order to reopen should be 

vacated. CE Beryhoefer v. Johnson, 285 F.2d 762 (C.A. 5, 1961); 8 

CFR 3.2. 

The respondent argues that the deportation order was not 

executed because he did not make a meaningful departure for 

immigration purposes under the doctrine of Rosenberg v. Fleuti, 

374 U.S. 443 (1063). The respondent's reliance on Fleuti is inappropriate. 

Unlike Fleuti who left the country free of any sanctions imposed 

by the immigration laws, the respondent departed while under an 

outstanding order of deportation. In Aleman-Fiero v. INS, 481 

F.2d 601 (C.A. 5, 1973), it was held that such an individual was not 

entitled to the benefits of Fleuti. Furthermore, the court in 

Aleman -Fiero pointed out that the issue in Fleuti was not what 

constituted a departure but whether Fleuti was within the exemption from the term "entry" under section 101(aX13). That section 

expressly provides that "no person whose departure from the 

United States was occasioned by deportation proceedings ... shall 

be held to be entitled to such exemption." - 

We conclude that the immigration judge's decision was correct. 

The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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