F

MAI1hR OF F—

In DEPORTATION Proceedings

A-15710815

Decided by Board June 6, 1961
Voluntary departure—"immediate means."

Eligibility requirement in 8 CFR 244.1 that alien have the "immediate means"
to depart voluntarily is satisfied if facts, in each case considered individu-
ally. indicate distinct probability that alien will be able to effectuate volun-
tary departure within a reasonable period of time.
CHARGE :
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Admitted as
nonimmigrant under section 101(a) (15)—Remained longer.

BEFORE THE BOARD

DISCUSSION; In a decision dated March 10, 1961, the special
inquiry officer directed that the respondent herein be deported from
the United States on the charge set forth in the order to show
cause. He denied the discretionary relief of voluntary departure.
From that decision the respondent, through his attorney, has ap-
pealed to this. Board and has contested the finding by the special
inquiry officer that the respondent is statutorily ineligible for the
privilege of voluntary departure.
The respondent is a 28-year-old unmarried male who first entered
the United States in 1951 as an apprentice seaman. He last entered
the United States at New York City on or about July 24, 1959, at
which time he was admitted as a nonimmigrant crew man authorized
to remain in the United States for a period not to exceed 29 days.
He has remained without authority since that time and deportability
is conceded.
In considering the eligibility of the respondent for discretionary
relief, the special inquiry officer concluded that under the pertinent.
regulations an alien must show that he has the immediate means of
departing from the Unitea States in order to be considered eligible.
The special inquiry officer concluded that "immediate means" con-
templates not only financial ability but also the present ability to

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 enter some other country. He found that the respondent did not
possess that ability and that he was, therefore, statutorily ineligible
for voluntary departure.
On appeal at oral argument respondent's counsel stated that re-
spondent could not establish his ability to depart• immediately for
the reason that having left a Yugoslav vessel and being an ex-member
of the Cummunibt Party he felt that his return to Yugoslavia would
cause persecution and prosecution and, therefore, he would not volun-
tarily return to that country. Counsel for the respondent also
pointed out that respondent, by training, is a highly intelligent
ship's officer and that he has made contact with a shipping line
sailing out of Trinidad, British West Indies, which line has indi-
cated that they would give him employment if he can obtain proper
documentation. Counsel also indicated that she has applied for the
respondent to go to Trinidad, and it has been her experience that
obtaining visas for Yugoslav seamen generally takes two months'
time.
Counsel for the respondent also stated that the discretionary relief
of voluntary departure cannot be incorporated in the regulations
to the extent of the interpretation given it by the special inquiry
officer. She pointed out that under section 244.1 of Title 8, Code
of Federal Regulations, the term "immediate means" is a compara-
tively new term, having been first inserted in the regulations on
January 23, 1960.
Counsel for the Immigration Service claims that the respondent's
argument would mean that deportable aliens have a right to remain
in the United States in illegal status for an indefinite period of time;
that such remaining on the part of the crewmen constituted criminal
offenses.
This Board has carefully considered the record in this case, to-
gether with representations made by counsel and the Service repre-
sentative on appeal. It is our conclusion that the regulations re-
garding voluntary departure must be applied in the light of the
facts of each individual case. We find that the facts here indicate
distinct probability that the respondent will be able to effectuate
voluntary departure within a reasonable period of time. Here we
consider as important the fact that respondent and his counsel are
making substantial efforts to depart to some country other than
Yugoslavia. We deem it only proper that a sufficient and reasonable
time be allotted respondent to conclude his arrangements. Accord-
ingly, the following order will be entered.
ORDER: It is ordered that the outstanding order of deportation
be withdrawn and the alien bo permitted to depart from the United
States voluntarily without expense to the Government, to any country

334
of his choice, within such period of time, and under such conditions
as the officer-in-charge of the District deems appropriate.
It is further ordered that if the alien does not depart from the
United States in accordance with the foregoing the order of de-
portation be reinstated and executed.

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