Interim Decision #1759

Interim Decision #1759

MATTER OF TSACONAS

In Deportation Proceedings

A-13452135

Decided by Board Jay 7, 1967

Notwithstanding she alleges that she misrepreoontea her statue to guile edmieRion

to the United States, respondent, who is charged with deportability under

section 241(a) (2), Immigration and Nationality Act, in that after admission

as a nonimmigrant temporary visitor for pleasure she remained longer than

'authorized, does not come within the purview of acetion 241(f) of the Act

since fraud or misrepresentation is not essential to the establishment of the

ground of deportation involved.

Cr z:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 12513—Nonimmigrant (temporary visitor for pleasure)—remained longer.

ON BEHALF or RESPONDENT Melvyn E. Stein, Esquire

One North LaSalle Street

Chicago, Illinois 60602

:

This case is before us on appeal from a special inquiry officer's

order of June 9, 1967, granting the respondent the privilege of voluntary departure, but providing for her deportation from the United

States to Greece, on the charge contained. in the order to show cause,

in the event of her failure to so depart. The appeal will be dismissed.

The record relates to a 38-year-old divorced female alien, a native

and citizen of Greece, who last entered the United States on or about

October 14, 1965. She was then admitted as a nonimmigrant temporary

visitor for pleasure for a period until April 13, 1966. She has remained

here since that date without authority.

The foregoing establishes the respondent's deportability on the

charge contained in the order of show cause. This was conceded in the

course of the hearing before the special inquiry officer and is unchallenged hem This aspect of the case needs no further discussion.

The special inquiry officer has already granted the respondent the

privilege of voluntary departure. Suffice it to say, in this connection,

the record before us supports said official's action in this respect.

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The respondent declined to name a country of deportation, and

was informed that her deportation would be directed to Greece if it

was required by law. She was then granted a period of ten days,

until June 5, 1967, as provided by regulation, within which to apply

for temporary withholding of her deportation to Greece, under the

provisions of section 248(h) of the Immigration and Nationality Act

(8 U.S.C. 1253). Counsel and the respondent were advised that if no

application for such relief was filed within the alloted time, the hearing-would be considered closed and the decision would then be made

on the record. No application for relief under section 243(h) of the

Immigration and Nationality Act has been received to date. Additional

comment on this aspect of the case, accordingly, is unnecessary.

WA find no merit in the respondent's claim that these proceedings

should be terminated because respondent did not have seven days from

the date of receipt of the order to show cause instituting these proceedings until the hearing thereunder, which was scheduled for March 6,

1967. The reason is that the record shows that this deficiency was

brought to the attention of the special inquiry officer at the original

hearing, and that he forthwith granted the respondent a continuance

of the hearing until March 22, 1967. The record further shows that

the continued hearing was not held until April 6, 1967. Under these

circumstances, it is clear that the respondent had a period far in excess

of seven days in which to be made aware of the acts and conduct on her

part the Service alleged to be in violation of law, and more than an

adequate opportunity to prepare her defense against them.

We likewise reject the respondent's contention that her case falls

within the purview of section 241(f) of the Immigration and Nationality Act (8 U.S.C. 1251), which stipulates that the provisions relating

to the deportation of aliens who seek to procure, or have procured,

visas or entry into the United States by fraud or misrepresentation

shall not apply to an alien "otherwise admissible at the time of entry"

who is, inter alia, the parent of a United States citizen? The fallacy of

the respondent's argument lies in the fact that the order for her deportation is not based upon any charge of fraud or misrepresentation. It

is simply predicated on the fact that, after her admission as a nonimmigrant temporary visitor for pleasure, she remained here for a longer

period of time than authorized. Hence, the ground of deportation selected and relied upon. by the Government in the administrative proceedings was not fraud or misrepresentation, and the respondent has

not the power to substitute for her own convenience a. ground not inThe respondent apparently contends that she is saved from deportation because she is, by her own admission, an alien who misrepresented her status to

gain admission to the United States.

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Interim Decision 41759

volved in the deportation proceedings against her. In other words, the

respondent's alleged intent to commit fraud, which she now claims, is

not germane here because it is not essential to the establishment of the

ground of deportation. involved.

Finally, we find unavailing the last reason given by the respondent

for the taking of the appeal, to wit;

The Respondent, since seeing she has lawful permanent resident children,

should have been afforded the opportunity to cross-examine various witnesses

"which the Government wished (sic) to present which may have a bearing on the

Respondent's future eligibility for an immigrant visa.

Not only is this contention premature, but it is also purely speculative

in nature. It relates to a matter which may never arise. If it does, then

the issue thus raised is properly for the consideration of the appropri-

ate American Consul abroad. It is dearly outside the scope of the jurisdiction of the special inquiry officer and this Board.

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

dismissed.

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