SAGASTI

13 I. & N. Dec. 771

• Court: Board of Immigration Appeals
• Decided: July 1, 1971
• Docket: 2100
• Status: Published

Opinion

Interim Decision #2100

MATTER OF SAGASTI

In Deportation Proceedings A-19878199 Decided by Board October 20, 1971

Notification to an alien ordered deported of the right to apply for withhold- ing of deportation pursuant to section 243(h) of the Immigration and Na- tionality Act, as amended, is required under 8 CFR 242.17(c) only with respect to the country or countries "specified" by the special inquiry officer; notification of such right is not compelled under 8 CFR 242.17(c) with respect to the country "designated" by the alien.

CHARGE: Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonim- migrant visitor—remained longer. ON BEHALF OF RESPONDENT: Otto F. Swanson, Esquire 215 W. Fifth Street, Suite 910 Los Angeles, California 90013

This is an appeal from an order of a special inquiry officer dated August 20, 1971, denying respondent's motion to reopen the proceedings. A stay of deportation is no longer a matter of right on such an appeal, 8 CFR 3.6, as amended, 36 F.R. 316 (January 9, 1971). On September 2, 1971, we denied counsel's request for such a stay pending receipt of the record and adjudication of the appeal. The record on appeal has now been received. The appeal will be dismissed. The respondent is a 47-year-old married male, a native and citi- zen of Spain, who was admitted to the United States as a nonim- migrant visitor on or about October 26, 1968 and has remained longer than permitted. At a joint deportation hearing with his wife 1 before a special inquiry officer on January 13, 1971, at which they waived counsel, respondent and his wife admitted the I His wife, Sylvia Alvarez de Sagasti, subject of Service file A-20003925, is not a party to this appeal. The record reflects that she is a native and citi- zen of Chile.

771 Interim Decision #2100 factual allegations of the order to show cause and conceded de- portability. Both applied for voluntary departure. The respondent testified that he had lived in Spain the first fourteen years of his life, then had fled to France where he re- mained close to a year. He was given residence rights in Chile, where he had resided for approximately 30 years before entering the United States. The special inquiry officer found both the respondent and his wife deportable and asked them to designate a country to which they desired to be sent if deportation should be required. Both desig- nated Spain and the special inquiry officer stated that he would direct deportation to Spain if deportation should be required (Tr. p. 7). He entered an order granting then until July 13, 1971 to depart voluntarily, with an alternate order for deportation to Spain if they failed to depart. No alternate country of deporta- tion was specified by the special inquiry officer. Appeal was waived and the order became final. Respondent thereafter retained counsel, who on July 31, 1971 filed an unsupported motion to reopen. In it, he asserted that re- spondent "no longer has any ties, family or otherwise, in [Spain]"; that neither Spain nor Chile would be an appropriate country of deportation, since he is neither Fascist nor Commu- nist; and that he would be subject to persecution if deported to either country. The motion concluded, "The respondent will pre- sent evidence in the form of oral testimony, affidavits and numer- als newspaper articles to support his claim to such anticipated )ersecution." The Service opposed the motion, pointing out that )oth respondent and his wife had designated Spain at the depor- ation hearing and that neither had then asserted any claim of ersecution if sent to that country. In the brief order before us n appeal, the special inquiry officer denied the motion for the Masons advanced by the Service. The motion does not comply with the requirements of 8 CFR 12.22 and 103.5. It does not state the new facts to be proved at a opened hearing and is unsupported by affidavits or other evi- mtiary material. The conclusory allegation that "persecution ould result" is not sufficient. Neither is the generalized state- ent that the respondent will present evidence in the form of •al testimony, etc., at a reopened hearing. Insofar as Spain is ncerned, insufficient facts have been offered to warrant reopen- g. The allegations with respect to Chile are not only insubstan- L1 but irrelevant; that country has not been named even as an ernate destination.

772 Interim Decision #2100 In his brief on appeal, counsel raises an additional point not heretofore considered. He charges that the special inquiry officer did not comply with the provisions of the regulation requiring him to inform the respondent of the right to apply for withhold- ing under section 243 (h) of the Act. That regulation, 8 CFR 242.17(c), provides in pertinent part as follows: The special inquiry officer shall notify the respondent that if he is finally ordered deported his deportation will in the first instance be directed pur- suant to section 243(a) of the Act to the country designated by him and shall afford the respondent an opportunity then and there to make such des- ignation. The special inquiry officer shall then specify and state for the rec- ord the country, or countries in the alternative, to which respondent's depor- tation will be directed pursuant to section 243(a) of the Act if the country of his designation will not accept him into its territory, or fails to furnish timely notice of acceptance, or the respondent declines to designate a coun- try. The respondent shall be advised that pursuant to section 243(h) of the Act he may apply for temporary withholding of deportation to the country or countries specified by the special inquiry officer and may be granted not more than ten days in which to submit his application. . . . (Emphasis sup- plied.) The statutory scheme, as implemented by the regulations, seems clear. The deportable alien is given the first choice. Both the statute, section 243(a), and the regulation quoted above give him t ,poweiixto " esigna e" 1 the countryep .ofrtation. d n.• e If the alie app. 43 Or) ,-.A7 k fat • is...requirea .on : respect to the-coiAry or -C"oiintri. tion to alternate countries.`The regulation authorizes the special inquiry officer to "specify" the alternate country or countries, which are obviously different from the one "designated" by the alien, Notification of the right to apply for section 243 (h) with- holding is required only with respect to the ctuntry or countries "specified" by the special inquiry officer. Notification of this right is not compelled with respect to the country "designated" by the alien; presumably, given the power of choice, a deportable alien would not choose a country where he fears he will be persecuted. The better practice might be to ask the alien whether he fears persecution in any of the countries named, either as the first or alternate destination, regardless of whether the country is "desig- nated" by the alien or "specified" by the special inquiry officer, and to advise him of his right to apply for section 243 (h) with- holding in any named country.' The regulations, however, do not require it. We find no basis, on this record, to conclude that the 2 We note that some special inquiry officers have adopted this course. The practice is not uniform.

773 Interim Decision #2100 respondent has been prejudiced by failure of the special inquiry officer to give him this advice which the regulation does not re- quire. The facts thus far presented do not make out even a prima facie showing that the respondent is likely to be persecuted in Spain within the meaning of section 243 (h). ORDER: The appeal is dismissed.