Interim Decision #1233 

MATTER OF CHANG 

In DEPORTATION Proceedings 

A-8227986 

Decideclby the Board July 41962 

A special inquiry officer's order directing deportation if the alien failed to depart 

voluntarily within the time allowed became final when respondent did not 

appeal within the time allowed. (8 CFR 243.1) Upon failure to depart as 

notified, sespondent was served with a final order of deportation issued 

pursuant to the 1952 Act at a time when he was ineligible for suspension of deportation under section 244(a) of that Act. He is, therefore, precluded from 

qualifying for suspension of deportation under any of the subsections now 

in effect. 

CHARGES 

Warrant: Act of 1924--no immigration visa 

Lodged: Sec. 241 (a) (9) of the I. & N. Act (8 U.S.C. 1251(a) (9) )—Failed to 

comply with conditions of admission—seaman. 

The case comes forward on appeal from the order of the special 

inquiry officer dated May 14, 1962, denying respondent's motion to. 

reopen the deportation proceedings to permit application for suspension of deportation under sexton 244 of the Immigration and Nationality Act.. 

The record relates to a native and citizen of China, 49 years old, male,. 

who last entered the United States at the port of New York on May 5, 

1951, and was admitted as a seaman under section 3 (5) of the Immigration Act of May 26, 1924, for the amount of time the ship remained in 

port, not to exceed 29 days. A warrant of arrest was served on the 

respondent on February 18, 1952. He was accorded a deportation 

hearing during the course of which he was represented by counsel 

and at the conclusion of the hearing on May 11, 1953, the special inquiry officer entered an order finding the respondent to be subject to 

deportation solely on the lodged charge set forth above and granted 

him the privilege of voluntary departure in lieu of deportation, with 

the further order that if he failed to depart as required, the privilege 

of voluntary departure should be withdrawn without further notice 

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Interim Decision #1233 

or proceedings and the alien deported from the United States in the 

manner provided by law on the lodged charge. By letter dated June 9, 

1953, counsel for the respondent was supplied with a copy of the hearing record, decision and order of the hearing officer and was informed 

that the order was final unless an appeal was taken to the Board of 

Immigration Appeals within five days. No appeal was taken. On 

July 17, 1953, the respondent and his counsel were notified by mail 

that the respondent should arrange to depart from the United States 

on or before August 19, 1953, and that if he did not avail himself of 

the voluntary departure privilege extended to him, he would be deported from the United States forthwith pursuant to law. Apparently the respondent failed to depart voluntarily and on August 20, 

1053, a warrant of deportation was issued. The warrant of deportation however was erroneously based upon the warrant charge instead 

of the lodged charge upon which respondent had been ordered 

deported. 

It does not appear that the deportation of the respondent was ever 

effected. On April 5, 1962, counsel for the respondent filed a motion 

to reopen the proceedings in order that the respondent might be permitted to make an application for suspension of deportation under 

section 244 of the Immigration and Nationality Act, as a,mended, 

supporting the motion with an affidavit of the respondent to the effect 

that on February 1, 1962, he married a naturalized citizen of the 

United States, that he has resided in the United States since 1951, 

and alleging that if he were deported to Hong Kong, he would suffer. 

unusual hardship. 

All the subsections of section 211(a) of the Immigration and Nationality Act which relate to suspension of deportation, except subsection (1) which is no longer applicable, contain, as a condition precedent to eligibility, the clause that the alien "has not been served with 

a final order of deportation issued pursuant to this Act in deportation 

proceedings up to the time of applying to the Attorney General for 

suspension of deportation." In the instant case the respondent was 

given voluntary departure with an alternate order of deportation by 

the special inquiry officer on May 11, 1953, and on June 9, 1953, was 

informed by the District Director of the order of the special inquiry 

officer and was given five days after receipt within which to appeal. 

No appeal was taken. 

By regulations, 8 CFR 243.1, an order of deportation, including an 

alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under part 

242, shall become final upon (1) dismissal of an appeal by the Board 

of Immigration Appeals, (2) upon waiver of appeal, or (3) upon 

expiration of the time alloted for an appeal when no appeal is taken.. 

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Interim Decision #1233 

The respondent herein failed to appeal and the order of the special 

inquiry officer became final. Upon his failure to depart us notified 

by August 19, 1953, a final order of deportation pursuant to the Immigration and Nationality Act had been served upon the respondent 

prior to the time of the application for suspension of deportation us 

provided by sections 244(a) (2), (3), (4) and (5) of the Act. The 

purpose of the requirement therein that the alien shall not have been 

served with a final order of deportation precludes suspension of deportation where the alien, . is not eligible for such relief at the time of 

such final order.- 

In the instant case the respondent, who last entered the United 

States on May 5, 1951, was, at the time of his deportation hearing on 

May 11, 1953, nui, eligible for suspension of deportation. A final order 

of deportation under the Act has been entered? Under the circumstances the respondent is precluded from now applying for suspension 

of deportation. The appeal 'front the order of the special inquiry 

officer denying the motion to reopen will be dismissed. 

ORDER: It is ordered that-the appeal from the order of the special 

inquiry officer dated May 14, 1962, denying the motion to reopen the 

proceedings' e and the same is 'hereby dismissed. 

1Matter of C—L--, 7 I. & N. Dec. 137; Matter of 0—, 7 I. & N. Dee. 457. 

Notice is taken of the fact that the warrant of deportation was based upon 

an erroneous ground, to wit, the warrant charge instead of the lodged charge. 

However, 8 ME 243.1 and 8 CPR 2432 illustrate the distinction between a final 

order of deportation and a warrant of deportation. The error in the warrant 

of deportation may be corrected administratively. 

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