Interim Decision 4t1689 

MAI 'EtC or Pimmyrnr. 

In Deportation Proceedings 

A-14997703 

Decided by Board January 80, 1967 

Notwithstanding statutory eligibility for voluntary departure, in the absence of 

other annealing factors such relief is denied, as a matter of discretion, in the 

case of respondent, a 24-year-old single Male, whose first anti only entry into 

the United States was made as a stowaway, in knowing and intentional violation of the immigration laws ; who has been here only abotit one year ; and who 

has no close family ties in this country. 

CHARGE: 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable 

at entry—Stowaway. 

ON BEHALF OF RESPONDENT: ON BEHALF or SERVICE: 

Peter 3. Needham, Esquire R. A. Vielhaber 

53 State Street Appellate Trial Attorney 

Boston, Massachusetts 02109 

(Brief filed) 

Respondent appeals from the decision of the special inquiry officer 

finding' im depoi4table as charged and denying voluntary departure in 

the exercise of discretion. 

Respondent is a 24-year-old single male alien, a native and citizen of 

Portugal, who entered the Tjnitecl States at Baltimore, Maryland on or 

about October 13, 1965 as a stowaway on 'a ship which he had boarded 

surreptitiously in Lisbon, Portugal. The record shows that he knew 

the ship was coming to the United States and stowed away on it for 

that reason. Deportability as charged in the order to show cause was 

conceded at the hearing. 

It has been established that respondent worked as a fisherman for 

seven years and thereafter served in the Portuguese navy, receiving 

his honorable discharge therefrom on August 3, 1965. Respondent 

testified that for some time it had been his hope to come to the United 

States so that he could obtain employment and remain hare (Tr. pp. 

12,13). He learned of the particular ship he boarded by reading the 

maritime papers to see which ships were coming to the United States. 

He hoarded the ship late on the day it sailed, hid himself below until 

it sailed, and then transferred to a lifeboat. He remained hidden in 

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the lifeboat during the entire passage from Portugal to the United 

States, using the food and supplies with which the lifeboat was normally stocked. He left the ship very early in the morning after its 

arrival in the United States and simply walked out unobserved. He 

then travelled to Newark, New Jersey where he had relatives and apparently began to work ashore immediately after his arrival (Tr. pp. 

18-15) . 

The record shows that respondent has no criminal record either in 

the United States or in Portugal and there is nothing to indicate that 

he has ever engaged in subversive activities. He has testified that he 

has sufficient passage money to effect his departure from the United 

States if permitted to leave voluntarily, and that he would be willing 

and able to depart within the time set by the Government. Although 

the majority of his family including his mother, father and sisters 

are in Portugal, he has some cousins and friends in the United States 

and it is indiVated 'that he has a fiancee, a Miss Susan Gomez, who lives 

in New Bedford, Massachusetts, and whom he hopes to marry in the 

near future. 

Respondent was apprehended at a bus station in Philadelphia. When 

he was first spoken to by an officer of the Immigration Service there, 

he did not tell the officer that he was Portuguese but said instead that 

he was Spanish and testified that his reason for this was the following: "I thought since there are so many Spanish speaking and 

Puerto Ricans here, he would let me go." (Tr. la, 15). He apparently 

also advised the immigrant inspector that he had immigrant papers 

in another bag on another' us, as part of his effort "to see if they would 

let me go." (Tr. p. 16). 

The special inquiry officer rendered an oral decision at the hearing, 

finding respondent deportable, and in effect finding him statutorily 

eligible for voluntary departure. He summarized the factors in the 

case which he took into consideration in deciding whether there should 

be a favorable exercise of discretion. The record shows there are few, 

if any, equities respondent can claim. He is single, and his parents and 

sisters all live in Portugal. His closest relatives in the United States 

are cousins. His first, and only entry into the United States, was made 

as a stowaway, in knowing and intentional violation of the immigration laws, and as part of a design to live and work here without 

complying with the immigration laws. He was in the United States 

for barely a year when he was apprehended. He lied to the apprehending immigration officers, both about his nationality and his immigrant status, in an effort to continue his illegal stay here. Respondent's 

claim that he is engaged to be married to a native ,born citizen of the 

United States was characterized by the special inquiry officer as a 

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neutral factor, weighing neither for nor against him. In respondent's 

favor are his lack of a criminal record, absence of subversive political 

activities, availability of funds to effect his own departure, honorable 

discharge after completion of Portuguese naval service and seven years 

of work as a fisherman. Balancing these factors, the special inquiry 

officer concluded that the favorable were not strong enough to overcome the unfavorable, and denied voluntary departure in the exercise 

of discretion. 

On appeal, counsel argues that inasmuch as respondent established 

eligibility for voluntary departure, and in view of his past record and 

background, the denial of voluntary departure was arbitrary, unreasonable and a clear failure of the special inquiry officer to exercise any 

discretion in the matter. 

Counsel's argument notwithstanding, the showing of good moral 

character, without more, does not justify a grant of voluntary departure. Such a showing is a preliminary factor, going to the establishment of statutory eligibility, which must be satisfied before discretion 

can be exercised. The granting of discretionary relief is an act of 

administrative grace, and to warrant it there must be a showing of 

equities over and above the factors going into statutory eligibility. 

We do not find them here. 

Counsel contends in effect that the stowing away was the impulsive 

act of a young boy. The record shows that it was not a spur of the 

moment 'seeking of adventure . by an adolescent; it was done by a 

23-year-old, who testified that ever since he had a little knowledge of 

life it had been his hope to come to the United States and obtain 

employment and remain here, and who knew of the ship's destination 

before boarding it because he had read it in the maritime papers (Tr. 

pp. 12-13). That respondent comes of a good family and is the son 

of a member of the Portuguese merchant marine who allegedly comes 

to the United States frequently as a crewman hardly lessens the nature 

of his offense (stowing away, it may be noted, is a criminal offense 

defined by 18 U.S.C. 2199, punishable by a fine of up • to $1,000 or 

imprisonment of up to a year, or both). Rather, it makes it all the more 

likely that respondent knew he would be violating the immigration 

laws of this country by stowing away and entering the United States 

surreptitiously. 

That this is respondent's first violation of the immigration laws 

likewise does not weigh heavily in his favor, since this is his first and 

Only coming to the United States, and every facet of it, from the 

moment of his entry into the territorial limits of the United States, 

has been in violation of our laws. When discovered by Immigration 

Service officers in a bus station in Philadelphia, he admittedly lied 

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to them about his nationality and immigration status in an effort to 

prolong his illegal stay here. 

Stowaways are, and have been for many years, treated separately 

in our immigration laws, because of the problems they create in the 

enforcement of those laws. They were first made excludable by the 

Act of 1917, with the possibility that they might be admitted in the 

discretion of the Attorney General if they were otherwise admissible 

(e.g., had valid visas and/or other necessary documentation). In 1940, 

stowing away was made a criminal offense. In 1952, upon the enactment of the Immigration and Nationality Act, excludability was made 

absolute for alien stowaways caught before they had made an entry, 

with no discretion in the Attorney General to admit them, whether 

they were otherwise admissible or not. They are not entitled to be 

landed in the United States other than temporarily for medical treatment or in connection with arrangements for their departure or removal from the United States, and are not entitled to any sort of 

hearing to determine whether they are eligible to enter the United 

States (Section 278(d) of the Immigration and Nationality Act). It 

has, as a corollary, become a matter of policy not to grant voluntary departure to.an alien who enters the -United States as a stowaway unless 

there are• appealing factors in his case over and above statutory eligibility (Cf. Matter of P—, 5 I. & N. Dec. 307) . 

It is within the discretion of the special inquiry officer to determine 

whether such factors exist. Frequently used as guidelines are the 

length of time the alien has been in the United States,•whether he has 

elms family ties here, and whether there are any exceptional factors 

in his case which would warrant special consideration. Here, after rendition of his decision, the special inquiry officer declared: 

•I irfoh to state that under. section 244(e) of the Immigration and Nationality 

Act voluntary departure is discretionary even though the respondent establishes 

that •e has been a person of good moral character for the past five years. I did 

not 'deny his request for voluntary departure on the ground that he was statutorily ineligible therefor. I denied it as a matter of discretion. In my opinion 

this respondent has absolutely nothing working for him in this case. • • • 

(Tr. p. 19.) 

From our own reading of the record," we consider that the special 

inquiry officer's evaluation of respondent's situation is a valid one, and 

that the equities upon which to base a discretionary grant of voluntary 

departure to a stowaway, with no ties in this country, who has been 

here for only a year, are absent. The respondent has shown no convincing reason why he should be permitted to escape the legal consequences of his unlawful entry and stay in the United States. 

ORDER: It, is ordered that the appeal herein be and the same is 

hereby dismissed. 

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