BENITEZ-SAENZ

Interim Decision #1830

Mazur OF BraTimps-SA.EN2

In Deportation Proceedings
A-11377975
Decided by Board December 22, 1967
.Respondent's departure from the 'United States under an order issued in depor.
tation proceedings granting him voluntary departure but providing for his
deportation if he failed to depart as required, was not a departure under an
order of deportation but under a grant of voluntary departure; hence, such
departure did not break the continuity of his residence for the purposes of
Section 249 of the Immigration and Nationality Act, as amended.
CHARGE:

Osuas: Act of 1952—Section 241(a) ( 2) (8 U.Z.C. 1201(a) (2)3—Entered
without inspection.
ON BERATE or RESPONDENT: ON BFMATZ OF SERVICE:
Arnulfo Guerra, Ilsquirs Bernabe Q. Maldonado
Roma, Texas Trial Attorney
(Brief Sled)

The special inquiry officer certified his order denying respondent's
application for adjustment of status under section 249 of the Act. The
facts are fully stated by the special inquiry officer. The issue presented
is whether au alien who departed from the United States voluntarily
after an order was issued in deportation proceedings giving him the
privilege of departing voluntarily but providing for his deportation
if he failed to depart as required, has broken the continuity of do-
mestic residence required by section 249 of the Act.
The special inquiry officer found that respondent's timely -departure
on January 7, -1959 under an order issued in deportation proceedings
giving him voluntary departure, but requiring his deportation if he
did not depart as required was under an order of deportation and
therefore broke the continuity of his residence.
The special inquiry officer is in error. Respondent's departure was
not under an order of deportation; it was under a grant of voluntary
departure. The order of deportation was conditioned upon the alien's
failure to depart. The condition never came into 'being; therefore, the
order of deportation never became effective.
593
Interim Decision #1830
In Matter of Young, Int. Dec. No. 1429, the Board held that an alien
who departed voluntarily pursuant to an order of voluntary departure
made in deportation proceedings had not broken the continuity of
his residence in the United States for the purpose of section 249. The
special inquiry officer sought to distinguish the instant case from
Young by reliance on language there that Young had not left as "the
result of exclusion or expulsion proceedings" (at p. 4) while in the
instant case a deportation order was outstanding. The language in
Young is general but a careful reading of the case shows that the
deciding factor in the case was the absence of a departure which could
be regarded as having executed an order and warrant of deportation.
It is clear there was a deportation proceeding there and that it had
brought about Young's departure.
The special inquiry officer believed that the provisions of 8 CFR
243.5 distinguish the instant case from Young; however, he does not
explain his conclusion and we are puzzled by it since this regulation
provides that an alien who departed when an order of deportation is
outstanding shall be considered deported "except that an alien who
departed before the expiration of the voluntary departure time
granted in connection with an alternate order of deportation shall not
be considered to have been so deported." The regulation does not
require respondent to be considered as one who was deported; rather,
it requires him to be considered as one who was not deported.
lJnder; the law and regulations respondent was not deported; there
is no reason to 'treat him as if he were. Deportation terminates resi-
dence in the United States. It prevents the deportee from obtaining a
visa for return, unless he gets permission, and it makes his reentry a
felony if he returns without permission. On the other hand, voluntary
departure permits the return of a qualified alien to the United States
for either temporary or permanent residence. There is no inconsistency
in permitting an alien illegally in the United States to depart to ob-
tain documents which will enable him to reenter legally for permanent
residence, and considering him as retaining his domestic residence.
Mrvica v. Esperdy, 376 U.S. 560, does not apply because the alien
there was deported. He "was not intended to be readmitted as a resi-
dent" (at p. 567). The Court refused to consider what the situation
might have been "in the absence of a valid deportation" (at p. 567).
The trial attorney contends that respondent's departure under the
order of voluntary departure was an abandonment of residence (even
though he returned on the same day) because he could not have known
when he would return since it would take an indefinite period to obtain
the immigrant visa. We think the reasoning is strained. The record

594
 Interim Decision 4t1880
shows respondent never intended to abandon his residence in the
United States.
The special inquiry officer stated. that if the respondent's residence
was not broken by his departure on January 7, 1959 he was clearly
eligible for relief. We agree with the special inquiry officer. Respond-
ent has been in the United States since he was a small child, he is mar-
ried to a legally resident alien, has two United States citizen children,
and is highly regarded by his employer and neighbors. Respondent's
application will be granted.
ORDER: It is ordered that the order of the special inquiry officer of
September 7, 1967 be and the same is hereby withdrawn.
It is further ordered that respondent's application for lawful admis-
sion for permanent residence, limier section 249 of the Immigration Na-
tionality Act be and the same is hereby granted.