Interim Decision #2957 

MATTER OF MANGASER 

In Deportation Proceedings 

A-21098138 

Decided by Board August 12, 198.9 

Under the Immigration and Nationality Act Amendments of 

1981, Pub. L. No. 97-116, 95 Stat. 1611, a nonimmigrant exchange 

alien (as defined in section 101(a)(15)(J) of the Act, 8 U.S.C. 

§ 1101(a)(15)(J) (1982)), is barred by section 244(f)(2) of the Act, 8 

U.S.C. § 1254(0(2) (1982), from eligibility for suspension of deportation regardless of whether or not he is subject to or has fulfilled 

the 2-year foreign residence requirement of section 212(e) of the 

Act, 8 U.S.C. § 1182(e) (1982). Matter of Pereyra, 16 I&N Dec. 590 

(BIA 1978), superseded. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. §1251(aX2)]—Nonimmigrant—remained longer than permitted 

ON BEHALF OF RESPONDENT: 

Wiliam Z. Reich, Esquire 

Serotte, Reich, and Goldstein 

300 Delaware Avenue 

Buffalo, New York 14202-1872 

ON BEHALF OF SERVICE: 

James W. Grable 

Chief Legal Officer 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

The respondent has submitted a motion to reopen deportation 

proceedings in order to permit him to apply for suspension of deportation, or, in the alternative, for reinstatement of voluntary departure, and for a stay of deportation pending a decision in the 

matter. The Service opposes the motion. The motion will be 

denied.' 

A summary of the protracted history of the case is in order. The 

respondent, a 35-year-old married native and citizen of the PhilipThe Board denied the request for a stay of deportation on July 20, 1983, in response to the respondent's telephonic request of the same date. 

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pines, was admitted initially to this country on July 10, 1976, as a 

nonimmigrant exchange alien as defined in section 101(aX15XJ) of 

the Act, 8 U.S.C. § 1101(a)(15)(J) (1982), for the purpose of pursuing 

postgraduate medical training. His spouse and eldest son entered 

the United States on the same date on "J-2" visas. The respondent's "J-1" visa and his dependents' "J-2" visas where renewed in 

July 1980 to July 31, 1981. The respondent's last entry into the 

United States was on July 14, 1980. He completed his postgraduate 

medical training in June 1981. In the same month, the respondent's spouse filed an "H-1" petition and application for change of 

nonimmigrant status under section 248 of the Act, 8 U.S.C. § 1258 

(1982). 

On March 4, 1982, the Service requested the respondent to 

appear at its Buffalo district office to discuss his immigration 

status. The respondent appeared at the district office on March 12, 

1982, at which time he requested pre-hearing voluntary departure 

pending resolution of his wife's application for change of nonimmigrant status, then on appeal before the regional commissioner. The 

Service, on the above date, granted him the privilege of voluntary 

departure to May 11, 1982. The respondent, on the same grounds, 

requested an extension of his voluntary departure data which the 

Service, in its discretion, granted on May 21, 1982, setting July 5, 

1982, as the new deadline for departing the United States. 

In June 1982, the regional commissioner reversed the district director's decision regarding the respondent's wife's application for 

change of nonimmigrant status and granted her "H-1" status as a 

temporary worker until July 1, 1983. 

The Service, in error, prematurely issued an Order to Show 

Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form 

I-221S), dated July 2, 1982, charging the respondent with deportability pursuant to section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) 

(1982), as a nonimmigrant who had remained in the United States 

longer than permitted. On July 27, 1982, the Service issued a superseding Order to Show Cause against the respondent on the same 

grounds. At the deportation hearing on August 20, 1982, the respondent argued that the Order to Show Cause should be cancelled 

because he never received a formal response to his June 29, 1982, 

letter to the district director requesting an additional extension of 

his voluntary departure date. The immigration judge found no 

merit in the respondent's assertion and found him deportable as 

charged. lu lieu of deportation, he granted the respondent voluntary departure until September 20, 1982. 

The respondent appealed the immigration judge's decision to this 

Board. On April 6, 1983, we dismissed the appeal, noting first that 

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the respondent's pending request for extended voluntary departure 

was outside the jurisdiction of both the immigration judge and the 

Board; and second, that such a pending request did not preclude a 

finding of deportability. We granted the respondent 30 days' voluntary departure in accordance with our decision in Matter of Chouliaris, 16 I&N Dec. 168 (BIA. 1977). 

On June 16, 1983, the respondent's wife filed for an extension of 

her "H-1" status to June 80, 1984. Her application was subsequently granted. The respondent again requested and received an extension of his date of voluntary departure from the district director 

until July 1, 1982. The respondent again failed to depart the 

United States. 

The Service issued a warrant of deportation on July 8, 1983, pursuant to the outstanding order of deportation. On the same date, 

the respondent was directed to surrender for deportation on July 

21, 1983, at Buffalo, New York. By letter dated July 18, 1983, the 

respondent requested the district director to withdraw the warrant, 

reinstate voluntary departure, or alternatively to postpone deportation pending the instant application for reopening of deportation 

proceedings for presentation of a suspension application based on 

the respondent's completion of 7 years' continuous physical presence in the United States- The district director, by letter dated 

July 19, 1983, denied the request. On July 20, 1983, the respondent 

filed the instant motion with the Office of the Immigration Judge 

in Buffalo, New York. Failing, the same date, to obtain a telephonic stay of deportation from this Board, the respondent filed an application for a writ of habeas corpus in a United States district 

court. 

A party seeking to reopen deportation proceedings must state the 

new facts which he intends to establish and provide appropriate affidavits or other supportive evidentiary material. 8 C.F.R. § 3.8(a) 

(1983). Motions to reopen will not be granted when a prima facie 

case of eligibility has not been established. INS v. Wang, 450 U.S. 

139 (1981); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of 

Lam, 14 I&N Dec. 98 (l3lA 1972). 

To establish prima fade eligibility for suspension of deportation, 

the respondent must show that he satisfies the statutory requirements of section 244(a) of the Act, 8 U.S.C. § 1254(a) (1982). We find 

that this respondent has clearly failed to establish prima facie eligibility for suspension of deportation under section 244(a) of the 

Act. Section 244(f)(2) of the Act specifically provides: 

The provisions of subsection (a) shall not apply to an alien who30 
Interim Decision #2957 

(2) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(aX15XJ), or has acquired the status of such a nonimmigrant 

exchange alien after adTrtission, in order to receive graduate medical education or 

training, regardless of whether or not the alien is subject to or has fulfilled the 

two-year foreign residence requirement of section 212(e). 

The respondent herein was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15XJ). Thus, 

he is statutorily ineligible for suspension of deportation. 

The respondent asserts that he is not barred from eligibility for 

suspension of deportation under section 244(0(2) of the Act because 

he was granted a waiver of the 2-year foreign residence requirement under section 212(e) of the Act, 8 U.S.C. § 1182(e) (1982). He 

submits that there is a "Congressional intent to distinguish between [foreign medical graduates] who entered prior to January 10, 

1977, and to preserve their pre-existing remedies for relief from deportation." This Board's decision in Matter of Pereyra, 16 I&N Dec. 

590 (BIA 1978), and the administrative regulations regarding section 212(e) waivers are cited as support for this position. See 8. 

C.F.R. § 212.7(c)(10) (1982). 

Matter of Pereyra, however, interpreted section 244(±) prior to the 

enactment of the Immigration and Nationality Act Amendments of 

1981. It is clear under the present provisions of the law that individuals who were admitted on "J-1" visas are statutorily ineligible 

for suspension of deportation regardless of whether or not they are 

subject to or have fulfilled the 2-year foreign residence requirement 

of section 212(e). Thus, neither Matter of Pereyra, nor the regulations concerning section 212(e) waivers, provide any support for the 

respondent's position. The statutory language is clear and unambiguous. The respondent has identified no legislative history suggesting an interpretation at variance with the natural purport of 

the statute's language. Moreover, it cannot even be asserted that 

this respondent had a "pre-existing remedy" for relief from deportation under section 244(a) available at the time of enactment of 

the 1981 amendments to the Act. He had clearly been in the 

United States for less than 7 years at that point. 

The respondent alternatively seeks a new grant of voluntary departure. However, we have long held that in order to warrant a 

new grant of voluntary departure, a respondent "must demonstrate 

the existence of compelling reasons or circumstances for his failure 

to depart within the time originally allotted." See Matter of Onyedibin, 15 I&N Dec. 37 (BIA 1974). The respondent has not shown any 

compelling reason for his failure to depart within the voluntary departure period previously granted by the immigration judge and 

the generous extensions granted by the district director. A further 

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grant of voluntary departure is not warranted under such circumstances. 

Accordingly, the motion to reopen will be denied. 

ORDER: The motion to reopen is denied. 

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