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of Interim Decision 352 shows that it has no application to the instant

case.

Although the majority decision goes over some of the facts in the case, there are other equally pertinent facts which have not been discussed which should be controlling. Of particular importance is the fact that these respondents appeared at the Immigration Office at Newark, N. J., of their own volition and in order to inquire about their immigration status and with a desire of complying with the immigration laws. A warrant of arrest was issued with respect to VM on December 15, 1950, and with respect to the alien D—— M▬▬▬ M on June 7, 1951. Both aliens were called before Inspector Boteilho for hearing on September 13, 1951. Both aliens stated that they did not wish to proceed without an attorney and refused to waive their right to be represented by counsel. V—— M———▬▬▬▬ stated as follows:

Alien

Q. Am I to understand that you are now applying for the privilege of voluntary departure in lieu of deportation?

A. Yes.

Q. Have you obtained reservation on a steamship or plane?

A. Not yet because at first I need the papers and you hold the passport. I even had talked with the Italian consul already.

Q. On what ship do you expect to depart from this country?

A. Maybe I go back to Italy or maybe I will go some other place. I will go by boat.

Q. Do you have a steamship ticket?

A. Not yet. I have to buy it.

Q. Do you have any money with which to buy a steamship ticket?

A. Yes.

Q. You are positive that you will depart from the United States within the next three weeks?

A. Yes; I will.

Q. In view of the fact that you do not waive your right to be represented by counsel during this hearing, I will adjourn the hearing to October 8, 1951, at 10:00 a. m., at this office at which time you should be accompanied by your counsel. If you are not accompanied by counsel the hearing will then be resumed without counsel. Do you understand that?

A. Yes.

Q. However, since you have asked for the privilege of voluntary departure without expense to the Government I am disposed to permit you to depart from the United States if you present to me as soon as possible and within the next two weeks satisfactory evidence that arrangements have been made for your departure from the United States on or before October 8, 1951. Is that understood?

A. Yes.

Alien D M M statement follows:

Q. Do you waive your right to be represented by counsel during this hearing? A. No. I would like to say that I expect to leave the United States in two or three weeks because I will leave on an Italian boat-I prefer an Italian boatand any way I will leave the United States and that is absolutely right.

260397-54-44

Q. Am I to understand then that you are making application at this time for the privilege of voluntary departure from the United States?

A. Yes.

Q. As you are not represented by counsel and do not waive appearance of counsel during this hearing, I will adjourn this hearing until October 8, 1951, at 9 a. m., at this office at which time the hearing will be resumed whether or not you are represented by counsel. However, if you present to me evidence to indicate that you will depart from this country within the next 3 weeks, I am disposed to authorize such voluntary departure. Do you understand? A. Yes sir.

It is noted that in this statement neither alien was definitely given the privilege of departing. The hearing officer merely stated that he was disposed to permit such departure. In the file as exhibit 3 in each case is an agreement signed by the alien, the hearing officer and the officer in charge. The pertinent part thereof following. Since it is identical in each case it is quoted but once:

"I further state that I have been informed of my right to adjudication of the issues in my case on the basis of the hearing which has been accorded me, but that it is my desire to depart from the United States voluntarily without further proceedings under such warrant of arrest and I hereby waive such further proceedings.

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The application above is hereby approved under authority of 8 C. F. R. 150.3, conditioned upon your showing to the undersigned on or before September 25, 1951, that you have appropriate travel documents and transportation to the country of your destination.

Hearing Officer.

Since this apparently was prepared after the hearing officer's statement during the course of the hearing it is presumed that it takes precedence over the statement contained therein that the hearing officer was "disposed to grant respondent 2 weeks within which to present evidence of his intention to depart."

Particular attention is called to the fact that exhibit 3 granted the respondent but 12 days within which to present evidence of possession of travel documents and transportation.

Hearings were resumed on October 8, 1951, 25 days later at which time counsel was present. Respondent V- M-stated that he had proceeded with arrangements to depart to the extent of having his passport renewed. No inquiry was made of respondent D———— M- M with regard to what effort he had made. Both respondents renewed their request that they be permitted to leave the United States voluntarily and at their own expense and stated that they were ready to leave at once. The hearing examiner in his summary of the case at which time he denied the request for voluntary departure stated as follows:

You were granted the privilege upon your request of voluntarily departing from the United States, such departure to have been within 3 weeks of the opening of this hearing. You have failed to depart from this country.

This statement of the hearing examiner is incorrect. According to exhibit 3 which has been quoted, the aliens were granted 12 days within which to present evidence of possession of travel documents and transportation. Nothing whatever was stated with regard to the actual date upon which departure should take place.

The state of the record with regard to what was required of the alien is so confusing as to make impossible a definite conclusion. Certainly it would be far more confusing to the respondents, aliens of no background in the immigration laws and regulations and even though they speak English it is not their native tongue. We have first the hearing examiner's statement in the hearing that the aliens would be granted 2 weeks in which to present evidence that arrangements had been made for their departure but at the same time a further statement that the hearing was adjourned until October 8. We have second, a statement in exhibit 3 that the aliens would be granted 12 days within which to present evidence of possession of transportation and travel documents, and we have third, the statement in the hearing officer's summary to the effect that the aliens had been granted 3 weeks within which to depart from the United States.

We do not have here the case of aliens who have played fast and loose with the immigration laws, we have the cases of two aliens who entered the United States lawfully as temporary visitors under section 3 (2) of the 1924 act. They were art students and came here for the purpose of studying art, particularly in the commercial field. The only violation of the law consists of overstaying the time of their admission. They have never worked, having been supported exclusively by funds sent them by their parents. In the utmost of good faith they appeared to the immigration office in Newark, N. J., for the purpose of making inquiry concerning their status. Interim Decision No. 352 (supra), contemplates that an alien may be granted at least 30 days within which to leave the United States. This is granted even in flagrant cases provided the respondent did not intend to remain permanently in the United States at the time of arrival. This case is not a flagrant one, nor were the respondents granted 30 days within which to depart. In fact they were granted no specific time within which to depart. The record shows that in one instance the hearing examiner said 2 weeks and at another time, 12 days within which to present documents and transportation. At the time of the hearing he stated they had been granted 3 weeks in which to depart but in no place in the record is this statement otherwise supported. The case is not controlled by Interim Decision No. 352 and the action of the majority

is directly contrary in both the spirit and the letter of that decision. Of interest is the Board's decision in Matter of E, A-8190438, June 3, 1952, where the respondent, a Greek seaman entered the United States on February 5, 1950. He alleges that he attempted to reship from the United States, but that evidence to say the least is weak. He purchased an automobile in May 1951 and has been employed continuously since his arrival. The hearing examiner granted the respondent 10 days within which to leave the United States. Due to his failure to comply with that therewith a further grant of time within which to depart was denied and he was ordered deported. The Board in its decision has held that a grant of 10 days was insufficient, reversed the decision and directed that respondent be given a full period of 30 days within which to depart. This was done notwithstanding the fact that the alien flagrantly violated the terms of his admission not only by overstaying his time but by immediately accepting employment. It is presumed that had he not been apprehended his illegal status would still be undiscovered.

In the instant case, in view of the technical matter of the violation of the immigration law on the part of these respondents, the indefinitness and confusion involved in the time they were allegedly granted within which to present evidence of intention to depart and continued desire to leave at once and at their own expense, it is my opinion that the request of counsel that they be permitted to leave immediately should be granted.

Attention is also called to the fact that their departure at their own expense would save the Government in appropriation the cost of their deportation, which according to current rates would amount to at least $500.

IN THE MATTER OF D

In DEPORTATION Proceedings

A-5668628

Decided by the Board June 24, 1952

Act of 1918, as amended-Subversive proscribed organization, member or affiliate of Communist Party of United States—Public Law 14 (March 28, 1951)— Voluntary membership or affiliation-Section 20 of the Immigration Act of 1917, as amended-Place of deportation-Discretionary relief, past membership in Communist Party of United States.

(1) Deportability because of voluntary membership in Communist Party of United States not dependent on knowledge of or belief in principles of Party. (Cf. 4, I. & N. Decs. 341 and 504.)

(2) Membership in Communist Party of United States from 1935 to 1937 allegedly for purpose of retaining employment is held to be a voluntary nature when the record discloses such employment was neither necessary for survival nor under the compulsion of maintaining a competitive equality in obtaining employment or other essentials of living with the majority or even a large number of persons engaged in similar occupations. (See also 4, I. & N. Dec. 314.)

(3) Discretionary relief not available to aliens deportable under act of October 16, 1918, as amended because of former membership in Communist Party of United States.

CHARGES:

Warrant: Act of October 16, 1918, as amended-After entry, alien member of organization that advocates or teaches overthrow, by force or violence, of Government of United States.

Act of October 16, 1918, as amended-After entry, alien member of organization that distributes, etc., printed matter advocating overthrow, by force or violence, of Government of United States. Lodged: Act of October 16, 1918, as amended-After entry alien who was member of Communist Party of the United States.

BEFORE THE BOARD

Discussion: This is an appeal from an order dated November 27, 1951, of the Assistant Commissioner Adjudications Division finding the respondent deportable solely on the lodged charge; directing his application for suspension of deportation be denied; and providing for his deportation from the United States.

Counsel has appeared in oral argument and has submitted a brief. Counsel contends that the testimony of the respondent has been ac

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