Interim Decision #2471 

MATTER OF MCQUAIDE 

In Deportation Proceedings 

A-20058452 

Decided by Board February 11, 1976 

Assuming, argulndo, that there may be situations in which a citizen child should be 

permitted to iltervene in a deportation proceeding of an alien parent, neither respondent nor her citizen child, through his guardian ad litem, has shown that appropriate 

circumstances for intervention exist in the instant case in which there has been no 

showing of prejudice to the child, and counsel for respondent has merely asserted that 

because of the divorce decree provisions granting respondent custody of her child in the 

United States for the three min-school months of the year, respondent cannot 

adequately represent the interests of her child. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2)" [8 1251(a)(2)]—Nonimmigrantremained longer than permitted. 

UN BEHALF OF RESPONDENT: ' ON BEHALF OF SERVICE: 

James J. Orlow, Esquire George Indelicato 

233 Broadway Appellate Trial Attorney 

New York, New York 10007 

This is an appeal from a decision of an immigration judge, dated June 

4, 1975 finding the respondent deportable, granting her voluntary departure and denying a motion to permit her United States citizen child 

to intervene in the deportation proceedings. The appeal will be dismissed. 

The respondent is a female alien who is a native and citizen of Greeee. 

She last entered the United States on February 26, 1973 as a nonimmigrant visitor for pleasure. She had remained longer than the period 

authorized. 'Ihe respondent admitted the factual allegations of the order 

to show cause. On the basis of these admissions the respondent is 

deportable under section 241(a)(2) of the Immigration and Nationality 

Act. On appeal, the respondent contests only the amount of time which 

she was graced for voluntary departure and the denial by the immigration judge of the motion to permit her United States citizen child to 

intervene in these proceedings. The motion was made by the respondent 

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and the child's guardian ad litem. Deportability is not in issue on appeal. 

The respondent was at one time married to a United States citizen. 

The record does not indicate the date of the marriage or the age of her 

United States citizen child. On March 4, 1974, the respondent was 

divorced from her husband in the family court of Rhode Island. The 

decree of divorce sets forth fairly explicit provisions for the custody of 

the child which resulted from this marriage. 

Under the terms of the decree, the respondent's former husband is to 

have custody of the cad for nine months of each year for a period 

coterminous with the normal school year. The respondent is to have 

custody for the remaining three months of the year. However, the 

decree also provides that the respondent is prohibited from removing 

the child from the United States. The effect of this decree is that the 

respondent may have custody of the child only in the United States. To 

this end, the decree provides that the respondent's former husband is 

required to pay for the respondent's expenses in traveling to and from 

the United States to be with her son. 

The respondent contends that her United States citizen child has a 

right to intervene in these proceedings, and that because of the custody 

provisions of the decree, permission to intervene should be granted_ It 

is clear that the deportation of an alien parent does not deprive a 

dependent citizen child of a constitutional right. See Aalund v. Marshal, 461 F.2d 710 (C.A. 5, 1972); Perdido v. INS 420 F.2d 1179 (C.A. 5, 

1969); Cf. Enciso-Cardoza v. INS, 504 F.2d 1252 (C.A. 2, 1974); Swartz 

v. Rogers, 254 F.2d 338 (D.C. Cir., 1958), cert. denied 357 U.S. 928 

(1958). 

In Agosta v. Boyd, 443 F.2d 917 (C.A. 9, 1971), the Court of Appeals 

for the Ninth Circuit found that there was no basis for conferring a right 

to intervene in deportation proceedings on a citizen relative of an alien. 

See also Cervantes v. INS, 510 F.2d 89,91-92 (C.A. 10,1975), Application of Amoury, 307 F. Supp. 213 (S.D. N.Y., 1969). In EnciscoCardoza, supra, on which the respondent relies, the Second Circuit 

indicated in dicta that there could be circumstances in which a United 

States citizen child should be permitted to intervene in a deportation 

proceeding. 

However, even if we assume, arguendo, that there are situations in 

which a citizen child should be permitted to intervene, neither the 

respondent or her child, through his guardian ad litem, has shown that 

appropriate circumstances for intervention exist here. See EnciscoCardoza, supra, at 1254. Counsel for the respondent has merely asserted that because of the custody provisions, the respondent cannot 

adquately represent the interests of her child. The respondent ha:s not 

explained how the custody provisions have this effect. The respondent 

has not made any showing that the respondent and the child do not have 

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coextensive interests. The respondent has an interest in minimizing her 

separation from her child. The child would appear to have the same 

interest. Nothing has been presented to indicate that the respondent's 

child would have presented anything at the hearing that the respondent 

herself did not present or was able to present. There is simply no 

showing of prejudice to the child. Accordingly, the motion to intervene 

was properly denied. 

The respondent also contends that she should have been granted more 

than 30 days voluntary departure. We are satisfied that the immigration 

judge did not• abuse his discretion in granting that amount of time. The 

respondent may, of course, apply to the district director for an extension of voluntary departure time if she believes that she can establish 

compelling reasons for such a grant. 

The decision of the immigration judge was correct. Accordingly, the 

appeal will be dismissed. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily 

within 30 days from the date of this order or any extension beyond that 

time as may be granted by the district director; and in the event of 

failure so to depart, the respondent shall be deported as provided in the 

immigration judge's order. 

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