Interim Decision #1699 

MATIER OF VORRIAS 

In Deportation Proceedings 

A-15154704 

Decided by Board February 9,1967 

As discretionary relief is the only issue in respondent's case, motion to reopen deportation proceedings predicated on Wavaby Y. Incnbigration and .3.7aturcai2ation Service, 385 U.S. 276 (1966), is denied since the Woodby standard is 

applicable solely to the question of deportability and has no bearing on the 

matter of discretionary relief. • • 

CHARGE: 

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

Orr BEHALF OF RESPONDENT : 

Barrett O'Hara, II, Esquire 

33 South Clark Street 

Chicago, Illinois 60603 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

(Memorandum of law filed) 

This case has previously been before us and on September 21, 1966, 

we sustained the respondent's appeal from an order of the special 

inquiry officer denying him the privilege of voluntary departure and 

ordering his deportation from the United States to Greece on the 

charge contained in the order to show entisri. The Board WAS persuaded 

that the respondent's application for voluntary departure was of sufficient merit and granted him such privilege. In view thereof, a full 

recital of the facts is not deemed necessary herein. 

A motion to reopen and reconsider these proceedings has been submitted by counsel urging that in light of the recent decision of the 

United States Supreme Court in Wood by v. Immigration and Naturalization Service, 17 L.ed. 2d 362 (December 12, 1966), the Government has not met its burden of proof in the instant case requiring 

that it must "establish the facts supporting deportability by clear, 

unequivocal and convincing evidence." Thus, counsel for the respondent moved that the proceedings in this case be terminated. 

In a Memorandum of Law, the Service outlined the respondent's 

own testimony of record conceding that he was an alien; that he was 

84 
Interim Decision * 1699 

a native and citizen of Greece; that he was admitted to the United 

States as a nonimmigrant crewman; and that he remained beyond 

the period of time permitted for his stay in the United States; and 

other testimony as to the manner and circumstances of his entry, and 

as to his conduct following entry. The Service contended, however, 

that since it is clear from the record that the only issue on which there 

was any controversy was that of diseretio ►ary relief, and the record 

makes it abundantly clear under any burden of proof that the respondent is in fact deportable, it fails to see any relevancy between 

the instant case and the authority relied upon by counsel for the respondent. Also, although the respondent was granted the maximum 

relief available to him in the circumstances of this case, to wit, voluntary departure, nevertheless, "he seems bent on a determined effort 

to protract his legal stay in the United States." The Service requested that the instant motion be denied. 

In pie T I oacrb case, supra, the Supreme Court held that the Government has the burden of proving,the facts supporting deportability 

by clear, unequivocal and convincing evidence. The decision, however, 

applied solely to the question of deportability and has no bearing on 

the matter of discretionary relief, the only issue herein_ An alien has 

the burden of demonitriding ant lie is worthy of such relief. The only 

exercise of discretion available to the Board in the circumstances of 

this case was voluntary departure and the respondent's application 

for this privilege was granted by our earlier decision herein. We are 

persuaded, therefore, from our review of this entire matter that the 

contentions of respondent are without merit. Accordingly, the motion 

of the respondent to reopen this matter is hereby denied. 

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

denied. 

85