Interim Decision #1966 

MATTER OF WONG 

In Deportation Proceedings 

A-18029197 

Decided by Board April 30, 1969 

Respondent, who was admitted as a nonimmigrant without a visa to proceed 

in continuous transit through the country, who was given ample time to 

do so, which period of time was extended by the District Director, but who 

failed to depart, does not thereafter warrant a grant of voluntary departure in deportation proceedings. 

CHARGE : 

Order: Act of 1952—Section 241(a) (1) DI U.S.C. 1251(a) (1)1—Exeluda-

. ble at time of entry—immigrant—no visa. 

ON BEHALF OF RESPONDENT: 

Joseph F. O'Neil, Esquire 

100 State Street 

Boston, Massachusetts 02109 

ON BEHALF OF SERVICE: 

R. A. Vielhaber 

Appellate Trial Attorney 

Thomas W. Gleason 

Trial Attorney 

The proceedings are before us on appeal by the Immigration 

and Naturalization Service from the decision of the special inquiry officer finding respondent deportable as charged but granting voluntary departure with an alternate deport order to the Republic of China on Formosa if he did not depart as and when 

directed. Counsel for respondent also filed an appeal from this decision, contesting deportability, but that appeal has since been 

withdrawn. The Service requested oral argument before the 

Board, which took place on March 17, 1969. 

The respondent is a 40-year-old married male alien, a native 

and citizen of the Republic of China, who arrived in the United 

States at San Francisco on or about May 28, 1968. He was at that 

time authorized to proceed in continuous transit through the 

United States without a visa and to depart for a foreign port or 

place on or ,before June 7, 1968. He failed to depart before that 

date. He thus remained in the United States without a visa. The 

respondent does not concede that he is deportable but we affirm 

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Interim Decision #1966 

the decision of the special inquiry officer that his deportability is 

shown by evidence that is clear, unequivocal and convincing. 

The Service contends in its appeal that the privilege of voluntary departure should not have been accorded the responent. With 

this contention we agree. 

The respondent, in entering the country as a nonimmigrant 

and authorized to proceed in transit through the country without 

a visa, was given ample time, from May 28, 1968 to June 7, 1968, 

to do so. After he failed to leave on this latter date, the District 

Director gave him further time, until September 11, 1968, to 

leave. He did not leave before that date, but, on the contrary, 

changed his place of residence without notifying the Immigration 

Service. Although the respondent testified that he had the money 

with which to depart the country, the facts are that he did not 

leave and it appears quite clear now that he had no intention of 

leaving. He obtained gainful employment as a kitchen helper in a 

restaurant and is currently working. 

When an alien is permitted to enter the country as a nonimmigrant without a visa for the purpose of proceeding in continuous 

transit through the country and then departing for a foreign port 

or place, the Government is relying upon the alien to abide in 

good faith with the conditions under which he was permitted to 

be in the United States, without requiring the institution of deportation proceedings. If he fails in this respect and will not 

leave until formal deportation proceedings are started, as did the 

alien in this case, we do not feel that a favorable exercise of the 

Attorney General's discretion is ordinarily warranted. We have 

no confidence that if he were again given the privilege of voluntary departure respondent would take advantage of it. 

We will thus affirm the decision of the special inquiry officer 

finding respondent deportable as charged but we will sustain the 

appeal of the Service and order the respondent's deportation 

without the privilege of voluntary departure. 

ORDER: It is ordered that the appeal of the Immigration and 

Naturalization Service from the special inquiry officer's order to 

grant the respondent voluntary departure, be and the same is 

hereby sustained. 

It is further ordered that the respondent be deported to the Republic of China on Formosa, but if not accepted there then to 

Hong Kong. 

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