Interim Decision # 2756 

MATTER OF SAMAI 

In Deportation Proceedings 

A-21424247 

Decided by Board January 16, 1980 

(1) Sufficient notice of hearing and an opportunity to prepare a defense to deportation is 

a basic prOcedural right. Yin Fong Cheung v. IN$, 418 F.2d 460, 462463 (D.C. Cir. 

1969). 

(2) An objection raised for the first time on appeal concerning improper notice of the 

deportation hearing was not untimely made, since the respondent was previously 

unrepresented and had not made a knowing waiver of his procedural rights. 

(3) Where the failure to observe 8 C.F.R. 242.1(b) and 103.5a(b) requiring a minimum 

period before a deportation hearing can be held after service of the Order to Show 

Cause deprived the unrepresented alien of a fair hearing, the Board remanded for a de 

novo hearing and entry of a new derision. 

CHARGE 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—remained longer than permitted 

ON BEHALF OF RESPONDENT: Richard W. Williams, Esquire 

283 Greenwich Avenue 

Greenwich, Connecticut 06830 

BY: Milhollan, Chairman; Maniatie, Appleman, Maguire, and Farb, Board Members 

The respondent has appealed from the decision of an immigration 

judge, dated September 11, 1978, finding him deportable as charged 

and denying his request for voluntary departure in lieu of deportation. 

The appeal will be sustained and the record will be remanded. 

The respondent is a 32-year-old native and citizen of Iran who last 

entered the United States on July 22, 1977, as a nonimmigrant student. 

On September 5, 1978, an Order to Show Cause was issued, charging 

the respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant 

who had remained in the 'United States beyond the period of his 

authorized stay. The Order to Show Cause was served on the respondent by certified mail, return receipt requested. The respondent received 

the Order to Show Cause on September 8, 1978. See Exhibit 1. 

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Interim Decision #2756 

8 C.F.R. 242.1(b) specifies that a deportation hearing may not be held 

less than 7 days after service of an Order to Show Cause except where 

the issuing officer determines that the public interest, safety, or security so requires, or at the request of the respondent. 8 C.F.R. 103.5a(b) 

specifies: 

Whenever a person has the right or is required to do some act within a prescribed 

period after the service of a notice upon him and the notice is served by mail, 3 days 

shall be added to the prescribed period_ Service by mail in complete upon mailing. 

Implementation of the regulations cited above required that the 

earliest proper hearing date which the Order to Show Cause served by 

mail on September 5, 1978, might contain was September 15, 1978. At 

the scheduled hearing on September 8, the immigration judge did not 

mention the irregularity of the notice to the then unrepresented respondent. On appeal, respondent alleged, without contradiction by the 

Service, that the public interest, safety, or security had not made it 

necessary to shorten the notice period, and he contended that holding 

the hearing in less than 7 days had deprived him of a fair hearing. 

The existence of the regulation relieves us of the need to calculate in 

each individual case how much notice is sufficient when, as here; the 

regulation is violated. There was no knowing waiver and the objection 

at the appeal stage was not untimely in the circumstances. Sufficient 

notice of hearing and an opportunity to prepare a defense to deportation is a basic procedural right. Nu Fong Cheung v. INS, 418 F.2d 460, 

462-463 (D.C. Cir. 1969). The record will be remanded for a de novo 

hearing and the entry of a new decision. 

On remand, the immigration judge should reconsider the respondent's request for voluntary departure if it can be shown that the 

punishment actually imposed for the respondent's conviction for petty 

theft brings that conviction within the petty offense exception to 

section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9). See generally Matter of 

Urpi-Sancho, 13 I&N Dec. 641 (BIA 1970). 

ORDERS The immigration judge's decision of September 11, 1978, 

is vacated and the record is remanded for a de novo hearing and the 

entry of a new decision. 

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