Interim Decision #2405 

MATTER OF CHERY AND FIASAN 

In Deportation Proceedings 

A-20187285 

A-19653626 

Decided by Board July 2, 1975 

Orders to show cause charging respondents with deportability wider section 241(a)(2) of 

the Inunigrat.on and Nationality Act for having remained longer than permitted after 

admission as nonimmigrant visitors were not defective for failure to include a reference 

to 8 CFR 214.1(a). The orders to show cause, which concisely set forth the specific 

nonimmigrant classification under which respondents were admitted to the United 

States, the specific period(s) of authorized admission, the acts or conduct in violation of 

law and a description of the statutory provisions(s) alleged to have been violated, were 

sufficiently explicit to inform respondents so as to enable them to mount a defense. 

CHARGES: 

Order: Ad if 1952 -Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—nonimmigrant visitor-

-remained longer than permitted (both respondents) 

ON BEHALF OF RESPONDENTS: 

Brian R. Hersh, Esquire 

Allan Seserman, Esquire 

602 Biscayne Building 

19 West Flag er Street 

Miami, Florida 33130 

ON BEHALF OF SERVICE: 

Henry J. Scroope, Jr. 

Trial Attorney 

Paul C. Vincent 

Appellate Trial Attorney 

These cases present an appeal by the Service from a decision of the 

immigration judge on August 26, 1974, ordering the charges therein be 

dismissed without prejudice The appeal will be sustained and these 

cases remanded to the immigration judge for further consideration. 

We have carefully reviewed the contentions of both parties on appeal 

and conclude that the decision below was not correct in holding the 

orders to show cause defective for failure to include a reference to 8 

CFR 214.1(a;•. We have no quarrel with the immigration judge's exposition (pp. 4-6) of the legal principles involved in this matter. It is with the 

application of these principles to these eases that we differ. 

8 CFR 242.1 provides, inter alia, that every proceeding under the 

immigration laws "to determine the deportability of an alien in the 

United States is commenced by the issuance and service of an order to 

380 
Interim Decision #2405 

show cause by the Service." The order to show cause states "Upon 

inquiry conducted by the Immigration and Naturalization Service, it is 

alleged that:" and informs the alien of the nature of the proceedings and 

the legal authority under which the proceedings are conducted. It sets 

forth a concise set of factual allegations of the acts or conduct in violation 

of the law, and a description of the statutory provision(s) alleged to have 

been violated. Its purposes are to obtain direct jurisdiction over the 

person of the alien, to advise him of his alleged violation with sufficient 

precision to allow him to defind himself, and to set in motion and inquiry 

in which the Service must establish that a violation occurred, and the 

alien has a opportunity to defend himself. See Matter of Ho, 12 I. & N. 

Dec. 516 (BIA 1967); aff'd sub nom. Ho Yeh Sze v. INS, 389 F.2d 978 (c. A. 2,.1968); cert. denied 390 U.S. 1040 (1968). 

The order to show cause in the case of Andre Chery states that he is a 

native and citizen of Haiti, that he entered the United States at Miami, 

Florida, on or about May 13, 1973; that he was admitted as a nonimmigrant visitor for pleasure until May 16, 1973, without authorization of 

the Service. The order to show cause in the case of Mahmudul Hasan 

states that he is a native of Malaysia and a citizen of Pakistan; that he 

entered the United Staes at New York on or about January 10, 1970; 

that he was admitted as a nonimmigrant student until June 29, 1970 and 

was thereafter authorized to remain in the United States until October 

10, 1978; and that he has remained in this country beyond October 10, 

1973 without authorization of the Service. In each instance the order to 

show cause then informs the alien that on the basis of these allegations 

he is charged with being in the United States in violation of the Immigration and Nationality Act (Section 241(a)(2)) and hence deportable, 

specifically for having entered as a nonimmigrant under section 101-

(a)(15) of that Act and having remained longer than permitted. 

We regard these allegations as sufficiently explicit to inform the alien 

in each instance what actions were in violation of the law, and what law 

he violated, so as to enable him to mount a defense. It tells him that, 

according to the government, he came as a nonimmigrant for a specific 

period of time. Common sense would dictate that a visitor to this 

country is not allowed to remain here forever, even apart from the 

statutory references in the order to show cause or the provisions of the 

published regulations (8 CFR 214.1(a)). The Act contemplates that an 

alien who is legally entitled to remain in the United States will have a 

status permitting his presence here (Section 291). Each alien was informed of the time periods in question. If they were erroneously stated, 

or if authorization for longer stays existed, then each had notice sufficient to allow him to clarify his position. We see no "vagueness" in this, 

as found by the immigration judge. 

In reaching this conclusion we are bolstered by the fact that in 

381 
Interim Decision #2405 

thousands of cases in which these basic factual allegations, and charge 

have been used, since the Act of May 19, 1921 (42 Stat 5) recognized a 

nonimmigrant category, not once, to the best of our knowledge, has any 

substantial c:aallenge along these lines come to the attention of this 

Board. Not only is this long standing administrative practice entitled to 

weight, (Nazareno et al., v. Attorney General of the United States, 512 

F.2d 936, 940 (CADC 1975)), but, more importantly, in this instance, it 

is a clear indication of an absence of confusion or misunderstanding. We 

are satisfied that the orders to show cause were clear and specific and 

termination on this ground was not warranted, cf. Matter of Loo, 15 I. & 

N. Dec. 127 (BIA 1974). 

Further, in response to the contentions of counsel that the respondents were denied due process and that section 241(a)(2) of the Immigration and Nationality Act, as amended, is void for vagueness and 

overbreadth, we find satisfactory compliance with procedural due process requirements, and neither this Board nor the immigration judge 

may rule on the constitutionality of the statutes which we administer. 

See Matter of Chavarri—Alva, 14 I. & N. Dec. 298 (BIA 1973); Matter of 

Santana, 13 & N. Dee. 362 (BIA 1969); Matter of 4 I. & N. Dec. 

556 (BIA 1951). 

The respondents have admitted all the factual allegations contained in 

the order to show cause. They are nonimmigrants; they have remained 

longer than authorized; and they are here without authorization. 

Deportability has been established by clear, convincing and unequivocal 

evidence. The appeal is sustained and the cases remanded for further 

consideration of applications for discretionary relief. 

ORDER: The appeal of the Service is sustained. 

Further order: These cases are remanded to the immigration judge 

for further proceedings consistent with the foregoing opinion. 

382