WONG

Interim Decision #1971

MATTER OF WONG

In Deportation Proceedings

A-15878180

Decided by Board May 2, 1969

(1) The Board of Immigration Appeals has no jurisdiction to extend the

time for voluntary departure, such authority being vested in the District

Director (8 CFR 244.2).

(2) Motion to reopen deportation proceedings to permit application for an

extension of voluntary departure time is denied where such motion does

not recite any new facts, the motion fails to set forth prior judicial litiga-

tion in the case in compliance with 8 CFR 3.8, and the alien, after admis-

sion as a crewman, has remained unlawfully in the United States, an

order of deportation having been outstanding more than three and one-

half years, during which time his justified deportation has been delayed by

numerous administrative and judicial reviews, the latest being March

1969.

DEPORTABLE: Act of 1952—Section 241(a) (2) 18 U.S.C. 1251(a) (2))—Ad-

mated as nonimmigrant crewman under sec-

tion 101(a) (15).

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

of China on Formosa, moves for a reopening of the deportation

proceeding to permit application for an extension of time within

which to depart voluntarily. The motion alleges that the respond-

ent is employed as a "specialty cook" and that his employer has

agreed to submit in his behalf a visa petition for sixth preference

classification.

The resiondent last entered the United States as a nonimmi-

grant 'crewman on May 5, 1965. Deportation proceedings have

been pending since the issuance of an order to show cause on Oc-

tober 4, 1965. The original decision of the special inquiry officer,

dated October 5, 1965, found the respondent deportable but

granted him voluntary departure in lieu of deportation. When the

respondent failed to depart as required, a. warrant of deportation

-

was issued on August 26, 1966 and is outstanding. During the

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Interim Decision # 1971

more than three and a half years which have intervened since the

issuance of the order to show cause, the case has been before this

Board on two occasions and before the federal courts in New

York on three occasions'

The motion now before us has been submitted by counsel other

than the one who originally represented the respondent before

this Board and during his litigation before the courts. Present

counsel entered his appearance on April 23, 1969. His motion

seeks a reopening of the proceeding to permit application for an

extension of time within which to depart voluntarily. The author-

ity to extend the time within which to depart voluntarily is

within the sole jurisdiction of the District Director (8 CFR

244.2) . Furthermore, according to the record before us, the privi-

lege of voluntary departure is no longer available to the respond-

ent as a warrant of deportation has been outstanding since Au-

gust of 1966. Counsel's motion does not recite any new facts

which warrant our reopening the proceedings (8 CFR 3.8).

The record in this case has another aspect in addition to the

fact that this Board has no jurisdiction to extend the time for

voluntary departure. We note that counsel, an experienced immi-

gration lawyer, who has recently entered the case, has overlooked

the provisions of 8 CFR 3.8, the pertinent part of which reads:

Motions to reopen or reconsider shall state whether the validity of the de-

portation order has been or is the subject of any judicial proceeding and, if

so, the nature and date thereof, the court in which such proceeding took

place or is pending, and its result or status.

The motion submitted by counsel makes no reference to prior

litigation in the respondent's case notwithstanding the fact that

the respondent challenged this Board's decision of April 26, 1968,

by a petition filed in the Court of Appeals for the Second Circuit

in May of 1968. The Court of Appeals dismissed the petition on

March 7, 1969 and directed that its mandate issue forthwith so

that the respondent may "be deported to Hong Kong without fur-

ther delay," Wong Kam Cheung v. INS (supra') .

We call counsel's attention to this provision of the regulations

because the respondent's original counsel of record also failed to

mention prior litigation in a motion considered by this Board on

appeal in February of 1968. This fact caused the Board to enter

an order overruling the special inquiry officer, which we with-

drew on our own motion on February 23, 1968, when it was

I See Wong Kara Cheung v. Eeperdy, 66 Civ. 3969 (S.D.N.Y., unreported);

Wong Kam Cheung v. Esperdy, 274F. app. 485 (S.D.N.Y., 1967) Wong

Kam Cheung v. INS, 408 F.2d 35, Docket No. 32346 (2 Cir., March 7, 1969).

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Interim Decision #1971

brought to our attention that the United States District Court for

the Southern District of New York had ruled adversely on the

same issue then before the Board on appeal. 274 F. Supp. 485.

The failure of counsel now of record to refer to prior litigation

has additional significance in light of the decision by the Court of

Appeals for the Second Circuit as recently as March 7, 1969. The

court in its decision referred to the fact that this Board had

withdrawn its decision of February 9, 1968 because of the failure

of alien's counsel "to advise the Board that the respondent

[alien] had been in court in this case." The court also referred to

the "many previous attempts at delay and the frivolous reasons

advanced for the belated motion to withdraw [the order deport-

ing the respondent to Hong Kong]."

We realize the counsel now of record has the obligation to

apply for any administrative relief for which he believes his

client may be eligible. This case, however, is a prime example of

the type of litigation referred to in House Report No. 1086, sup-

porting the enactment of Public Law 87-301, which created a

separate statutory form of judicial review for deportation and

exclusion cases. The Committee on the Judiciary stated that it

had been disturbed in recent years by the "growing frequency" of

judicial actions instituted by aliens whose • cases "have no legal

basis or merit" and are brought solely for the purpose of "pre-

venting or delaying indefinitely their deportation from this

country." 2

The respondent has now resided unlawfully in the United

States for four years. During this time, he has resorted to numer-

ous administrative and judicial reviews for the sole purpose of

delaying his justified deportation as an alien crewman who re-

mained in the United States beyond the time for which he was

admitted. He is now detained pending completion of travel ar-

rangements for his deportation to Hong Kong. Assuming that

present counsel is familiar with both the administrative and judi-

cial reviews that preceded his representation of the respondent,

we can only conclude that the motion now before us was brought

solely for the purpose of further delay. Under the circumstances,

we will deny the motion.

ORDER: It is directed that the motion be and the same is

hereby denied.

2 See page 2967, volume 2, U.S. Code Cong. and Admin. News, 1961.

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