MAI LE OF P— 

In DEPORTATION Proceedings 

A-10952893 

Decided by Board June 5, 1958 

Suspension of deportation—Alien deportable under section 241(a)(2) of 1952 

act as "remained longer"—Eligibility for suspension must be established 

under section 244(a)(5) of act. 

Allen deportable under section 241(a) (2) of the act as "remained longer" is 

within terms of paragraph (9) of section 244(a) of the act and, hence, Is 

ineligible for suspension of deportation under paragraph (3) of section 

244(a). 

ClIARGE • 

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)1—Remained 

longer than the permitted time after admission as a nonimmigrant 

seaman [section 3, Act of 1924; S U.S.C. 203, 1940 ed.] 

BEFORE THE BOARD 

Discussion: On March 11, 1958, this Board dismissed respondent's 

appeal from the special inquiry officer's decision of November 14, 

1957, denying his application for suspension of deportation, but authorizing his voluntary departure and providing for his deportation 

on the charge contained in the order to show cause in the event of his 

failure to so depart. The case is again before us on the motion for 

reopening of the proceedings for reconsideration of the respondent's 

eligibility for suspension of deportation. The motion will be denied. 

The respondent is a. 28-year-old native and citizen of Greece who 

last entered the United States on January 26, 1951, at Newport 

News, Virginia, as a seaman. Since he has remained in the United 

States longer than the permitted period, his deportability on the 

above-stated charge, which is uncontested here, is established. 

The only issue now before us is whether the respondent's application for suaponoion of deportation should he treated no felling 

under section 244(a) (3) of the Immigration and Nationality Act 

under which he could qualify for discretionary relief by the Attorney General, or under section 244 (a) (5) of the same act under 

which he cannot qualify because he does not fulfill the 10 years' 

residence requirement of subsection (5). 

562711 51-8 
The special inquiry officer originally held, and we previously 

agreed, that a prior precedent decision of this Board (Hatter of 

B—, A-10474501, 7 I. & N. Dec. 400) was dispositive of the issues 

in this case. In that case, we held that an alien admitted as a 

crewman is statutorily ineligible for suspension of deportation under 

section 244(a) (3) of the Immigration and Nationality Act if he is 

deportable, as is this respondent, under the provisions of section 

241(a) (2) of that act as a "remained longer," and that in such 

a situation his eligibility for suspension of deportation can be established only under section 244(a) (9) of the act. It is set forth in the 

present motion, however, that the decision of the Supreme Court 

of the United States in the case of Dessalernos v. Savoretti rendered 

on April 14, 1059 (356 U.S. 269), calls for a contrary conclusion. 

The Dessaloraos case, supra, involved an alien who was deportable 

on one of the grounds specified in section 244(a) (5) of the Immigration and Nationality Act (8 U.S.C. 1254), but who sought suspension of deportation under section 244(a) (1) of the Immigration 

and Nationality Act, and was not one of the classes expressly excluded from consideration thereunder because not one of the classes 

specified in section 19(d) of the 1917 act (former 8 U.S.C. 155). 

Here, however, the section involved is 244(a) (3) of the 1952 act 

which specifically provides that suspension of deportation is available thereunder only to an alien who "+ is not within the provisions of paragraph (4) or (5) of this subsection * * *." This 

language is not contained in section 244(a) (1). 

We hold that the foregoing language of subsection (3) is a clear 

mandate from the Congress that it and subsection (5) be considered 

mutually exclusive. Therefore, and in view of the difference in 

language between 244(a)(1) and (3), we conclude that the Dessalernos case (supra) has no application to the present situation. 

Accordingly, we will deny the present motion. 

Order: It is ordered that the motion be and the same is hereby 

denied. 

Editor's Nate: On April 27, 1959, the United States District Court, District 

of New Jersey, in Patindkis v. Bouchard, Civil Action #289-59, upheld the 

action of the Board in the subject case and denied application for a preliminary injunction. 

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