CHOULIARIS

 Interim Decision #2572




                             MATTER OF CHOULIARIS
                            In Deportation Proceedings

                                     A-151'74696
                       Decided by Board March 29, 1977
(1) Neither the statute nor the regulations contain any provision limiting the amount of
  voluntary departure time which may be granted by an immigration judge. The decision
  is within his sole discretion.
(2) Timely filing of an appeal stays the execution of the decision of the immigration judge
  during the pendency of the appeal, and also tolls the running of the voluntary departure
  authorization. See Matter of Villegas Aguirre, 

 (BIA 1969).
(3) Matter of Villegas Aguirre, 

 (BIA 1969) is affirmed to the extent it
  holds that the taking of an appeal shall not jeopardize a grant of voluntary departure.
(4) To the extent that Matter of Villegas Aguirre dictates that the same amount of
  voluntary departure time which was originally granted by the immigration judge should
  be reinstated after the Board has rendered its decision, it is disapproved.
(5) With regard to the formula for reinstatement of voluntary departure time, Matter of
  Viltegas Aguirre, 

 (BIA 1969) is modified as follows: If an immigra-
  tion judge provided for voluntary departure period of 30 days or less, the Board shall
  reinstate the original grant. Where a period exceeding 30 days has been granted,
  respondent will be given 30 days from the date of the Board's decision in which to depart
  voluntarily. Where the original grant has not yet expired, and the remaining period
   exceeds 30 days, respondent shall be permitted to depart voluntarily on or before the
  date specified by the immigration judge.
CHA RGE_

  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Remained longer—
                        crewman

Om BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
  James J. Orlow, Esquire                              George Indelicate
  636 Public Ledger Building                           Appellate Trial Attorney
  6th & Chestnut Streets
  Philadelphia, Pennsylvania 19106


BY: Milbollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

   In a decision dated December 3, 1975, the immigration judge found the
respondent deportable as charged and granted him voluntary departure
in lieu of deportation. The respondent has appealed from that decision.
The appeal will be dismissed.

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                                               Interim Decision #2572

   The respondent, a native and citizen of Greece, admitted the truth of
 the allegations in the Order to Show Cause and conceded his deportabil-
ity as a nonimmigrant who remained beyond the authorized period of
 admission. The only issues on appeal involve his application for volun-
tary departure.
    At the hearing the respondent stated that he had married a lawful
permanent resident on November 5, 1975, and that a visa petition had
been submitted in his behalf. He claimed that, if he were to return to
 Greece, he risked being drafted into the army in Greece. He requested
 that the immigration judge grant him until November 17, 1976, almost
 one year, in which to depart voluntarily, thereby enabling him to remain
here and to apply for adjustment of status once his visa petition was
 approved. Having found the respondent statutorily eligible for volun-
 tary departure under section 244(e) of the Immigration and Nationality
 Act and deserving of the relief, the immigration judge stated that the
 discretion given to him under the Act did not contemplate such a
 lengthy grant of voluntary departure time. He did, however, give the
respondent five months within which to depart voluntarily.
    On appeal counsel for the respondent contends that the immigration
judge erred in concluding that he was without authority to grant the
amount of voluntary departure time requested. Counsel is correct.
Neither the statute nor the regulations contain any provision limiting
the amount of voluntary departure time which may be given. Although 8
C.F.R. 244.1 provides that the alien applying for the privilege of depart-
ing voluntarily must establish that he is willing and has the immediate
means with which to depart promptly, it expresses no limitation on the
amount of time the immigration judge may grant. That decision lies
solely within the discretion of the immigration judge.
    The respondent in the present case requested permission to depart
voluntarily before November 17, 1976. Inasmuch as that date passed
while the appeal was pending, we see no reason to remand the record to
the immigration judge for a new decision. Consequently, we shall dis-
miss the appeal.
    Another issue remains to be discussed: whether the taking of an
appeal tolls the running of the grant of voluntary departure made by the
immigration judge_ This issue was raised by the Immigration and Natu-
ralization Service at oral argument, and briefs have been submitted by
both parties.
    In Matter of Villegas Aguirre, 

 (BIA 1969), we
held that a timely appeal not only stays the execution of the immigration
judge's decision during the pendency of the appeal but it also tolls the
ru nning of the voluntary departure authorization. Our holding in
Aguirre, where a 30 -day period of voluntary departure was involved,
was designed to guard against any possibility that the taking of an

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Interim Decision #2572

 appeal might result in the loss of the privilege of voluntary departure.
 The application of the rule of Aguirre to the present case would rest in the
 reinstatement of the five-month grant of voluntary departure as of the
 date of this decision. The Service urges that we overrule our decision in
Aguirre.
   The alien in deportation proceedings must be assured that he will not
risk losing a grant of voluntary departure by filing an appeal from an
adverse decision of an immigration judge. To the extent our decision in
Aguirre holds that a grant of voluntary departure made by an immigra-
tion judge shall not be jeopardized by taping an appeal, it is affirmed.
   The fact that the voluntary departure period is tolled during the
pendency of the appeal protects the alien's right to appeal. However, in
some cases the precise rule as enunciated in Aguirre has had another,
less desirable effect: it has provided a mechanism to prolong unduly the
departure of deportable aliens. Aguirre dictates that the amount of
voluntary departure time which was originally granted by the immigra-
tion judge be reinstated after we have rendered our decision. The
particular purpose for a lengthy grant may be fulfilled while the case is
before us on appeal, or it may no longer exist. To the extent that
Aguirre requires that we reinstate the same amount of voluntary depar-
ture time, it is disapproved and is modified as follows: If an immigration
judge provided for a voluntary departure period of 30 days or less, we
stall reinstate the original grant. In those eases in which a period
exceeding 30 days has been granted, the respondent will be given 30
days from the date of our decision in which to depart voluntarily. Where
the original grant has not yet expired and the remaining period exceeds
3() days, the respondent shall be permitted to depart voluntarily on or
before the date specified by the immigration judge.'
   At the hearing in the present case, the respondent was granted five
months in which to depart voluntarily. He requested almost a year.
Over a year has elapsed since the hearing in December 1975. At the
time of the original grant, a visa petition had been filed in his behalf by
his lawful permanent resident spouse. The petition hag since been with-
drawn. There is no longer any reason to prolong his departure. Accord-
ingly, the respondent will be given 30 days from the date of this decision
to depart voluntarily from the United States.
   ORDER: The appeal is dismissed.
   FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this order
or any extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.
    We note that the District Director is authorized to extend the period during which the
al ien may depart the United States voluntarily. (8 C.F.R. 244.2)

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