Interim Decision #1944 

MATTER OF ARAO 

In Deportation Proceedings 

A-14441808 

Decided by Board February 20, 1969 

(1) A finding as to whether an alien's overstay is justified is not germane 

to a determination of deportability under section 241(a) (2) of the Imndgration and Nationality Act. 

(2) Where an alien has been granted voluntary departure with a provision 

for the automatic entry of an order of deportation upon failure to depart 

within the authorized period, due process does not require reopening of 

the deportation hearing to afford the alien an opportunity to request additional time within which to depart voluntarily, or to show why she failed 

to depart, or that failure to depart is justified. 

CHARGE: 

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

ON BEHALF OF RESPONDENT: Richard W. Lowery, Esquire 

Shapiro and Small 

77 W_ Washington Street 

Chicago, Illinois 60602 

(Brief filed) 

The respondent, a native and citizen of the Republic of the 

Philippines, appeals from an order entered by the special inquiry 

officer on October 30, 1968, granting her voluntary departure in 

lieu of deportation as an alien who after admission as an exchange visitor has remained in the United States longer than permitted. The order further provides that in the event the respondent failed to depart on or before November 30, 1968, or any 

extension beyond such date, the privilege of voluntary departure 

would be withdrawn without further notice or proceedings and 

she would be deported to the Philippines. Counsel on appeal 

maintains, among other things, that the order entered by the special inquiry officer directing the respondent's deportation without 

further hearing in the event she failed to depart on or before November 30, 1968, violates the due process and equal protection 

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Interim Decision #1944 

clauses of the Constitution, and for this reason the proceeding 

should be terminated. 

The respondent, a female alien, was admitted to the United 

States at the port of Honolulu, Hawaii, on or about June 19, 

1965, as an exchange visitor for further training as a nurse pursuant to the Mutual Educational and Cultural Exchange Act of 

1961. She was authorized to remain in the United States until 

March 21, 1968. She has remained in the United States beyond 

March 21, 1968 and counsel concedes that she is deportable as 

charged in the order to show cause. 

Counsel during the hearing of October 30, 1968 requested the 

privilege of voluntary departure for the respondent and offered to 

explain why she became subject to the charge of having remained 

beyond the period, for which she was admitted (p. 2). Counsel 

stated for•the record that the respondent's employer had filed a 

third preference petition for her which was approved; that she 

then applied to the Department of Health, Education and Welfare 

for a recommended waiver of the two-year foreign residence requirement pursuant to section 212(e) of the Act: that her application and all motions to reconsider were denied and that while 

these motions were being considered the authorized period for 

which she was admitted expired (p. 3). 

The special inquiry officer advised counsel that he would be 

permitted to question the respondent regarding her eligibility for 

voluntary departure (p. 3). Counsel replied that since the special 

inquiry officer was "more familiar with the necessary questions" 

he preferred that the special inquiry officer question the respondent as to her eligiblity. The special inquiry officer upon completion of his interrogation of the respondent concerning her eligibility for voluntary departure asked counsel whether he wished to 

question the respondent further or present additional evidence 

for the record. Counsel declined the opportunity to present additional evidence (p. 5). The special inquiry officer then entered the 

order granting the respondent the privilege of voluntary departure 

without expense to the Government, on or before November 30, 

1968, or any extension beyond this date that may be granted for 

the District Director, with a further provision for deportation to 

the Philippines if the respondent failed to depart when and as required (p. 5). Counsel reserved the right to appeal this order (p. 

6). 

Counsel on appeal contends that the special inquiry officer via 

late(' due process in concluding that deportability is established 

by the respondent's admission that she remained in the United 

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Interim Decision #1944 

States beyond the period for which she was admitted without inquiry as to why she overstayed. Counsel maintains that the special inquiry officer should have afforded the respondent an opportunity to present evidence as to whether her overstay was 

justified by "unusual circumstances" and then make a ruling 

upon this issue. Counsel in this connection relies upon 22 CFR 

68.5 (b) 1which provides a two-year guideline for the authorized 

stay of exchange visitors who are graduate nurses and also authorizes an exception when there are "unusual circumstances." 

The respondent's admission of the facts alleged in the order to 

show cause and her concession that she is deportable establish deportability by clear, unequivocal and convincing evidence. A finding of deportability under these circumstances is sanctioned by 8 

CFR 242.16 (b) . There is no substance to counsel's claim that respondent was denied an opportunity to establish why she overstayed. Counsel was in fact afforded such an opportunity and 

made a full presentation of the facts but later declined to present 

further evidence on this issue. 

The respondent was not prejudiced by the special inquiry 

officer's failure to rule as to whether her overstay was justified. A 

finding of whether an overstay is "justified" is not germane to an 

alien's deportability under section 241 (a) (2) of the Act. Such a 

finding would be inconsistent with and unsupported by the evidence. It has been conclusively established in this case that the 

respondent has remained longer than permitted without legal justification. 

Moreover, the respondent was pot prejudiced in any way by the 

special inquiry officer's failure to state that her overstay was justified_ The special inquiry officer did not hold the respondent's overstay against her. He complied with counsel's request and 

granted voluntary departure, the maximum relief for which she 

is eligible. The "unusual circumstances" provision of 22 CFR 

63.5(b) (supra 1 ) has no application to a deportation proceeding. 

It merely implements the basic purpose of the exchange visitor 

program set forth in the Mutual Educational and Cultural ExaTitle 22 CPR 63.5 (b) : 

To insure that exchange visitors remain in the United States only so long 

as is necessary to satisfy their objectives and the intent of the Act, the following general limitations on the period of stay of exchange -visitors are 

hereby established. Exceptions to these limitations will be permitted only in 

unusual circumstances: 

(1) Participants: 

(i) Graduate nurses-two years. 

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Interim Decision #1944 

217, 219, fn.1 (1963) ; Gomez-Fernandez v. INS, 316 F.2d 732, 

733 (5 Cir. 1963) , cert. denied 375 U.S. 942, 11 L.ed. 2d 273. 

The respondent has an opportunity to avoid the entry of an 

order of deportation by departing within the time limit set by the 

order which will be entered in this case. Furthermore, there is no 

showing in this record that the respondent made any attempt to 

avoid the automatic entry of an order of deportation prior to her 

appeal by .applying for an extension under 8 CFR 244.2. She has 

been accorded a fair hearing pursuant to section 242 (b) of the 

Inunigration and Nationality Act and has been granted the maximum relief available under the circumstances of her case. We find 

no violation of the due process and equal protection of the law 

clauses of the Constitution in the decision and order entered by 

the special inquiry officer on October 30, 1968. The appeal will be 

dismissed and our order will provide for the respondent's voluntary departure within 30 days from the date of our decision. 

ORDER: It is ordered that the appeal be and the same is 

hereby dismissed. 

It is further ordered that, pursuant to the special inquiry 

officer's order, the respondent be permitted to depart from the 

United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by 

the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special 

inquiry officer's order. 

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