VILLEGAS AGUIRRE

Interim Decision *1940




                     MATTER o V/LLEGAS ACIVIRRn

                      In Deportation Proceedings
                                A-18102434
                 Decided by Board February 18, 1969

A timely appeal to the Board of Immigration Appeals from the special inquiry
  officer's order granting respondent voluntary departure with an alternate
  order of deportation in the event of failure to depart, effects an automatic
  Stay of execution of the special inquiry officer's order during the pendency
  of the appeal (8 CFR 3.6) ; the voluntary departure authorization by the
  special inquiry officer begins to run from the date of the Board's decision
  on the appeal.
CHARGE:
  Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9)1—Nonimmi-
                       grant visitor—failed to comply.
ON BEHALF. or RESPONDENT:       Antonio C. Martinez, Esquire
                                77 Seventh Avenue
                                New York, New York 10011
                                William Freundel, Esquire
                                (Of counsel) .


   This case presents an appeal from a decison of the special in-
quiry officer granting the respondent the privilege of voluntary
departure and further providing that in the event she failed to
depart when and as required, the respondent should be deported
to Ecuador. The appeal will be dismissed.
   The respondent is a married native and citizen of Ecuador who
entered the United States at Miami, Florida on or about August
17, 1968 as a nonimmigrant visitor for pleasure. She was author-
ized to remain in this country until December 31, 1968, but took
gainful employment in New York City on or about August 29,
1968. Counsel conceded her deportability at the hearing.
  The respondent has a return trip ticket to Ecuador. She is
ready, willing and able to depart and consented to leave the
United States within one month if granted voluntary departure.
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The respondent suffers from a kidney condition and has been
under medical care in this country. She has previously undergone
surgery in Ecuador.
   The special inquiry officer, by order dated October 16, 1968,
finding no evidence of record to indicate that the respondent
would be in any way impeded in her ability to travel by reason of
her ailment, nor any indication she could not obtain adequate
treatment in Ecuador upon her return there, granted the re-
spondent only the privilege of voluntary departure. He further
ordered that in the event she failed to depart when and as re-
quired, she should be deported on the charge contained in the order
to show cause. On appeal, counsel stated only that, "The denial of
additional time for voluntary departure is unreasonable, capri-
cious and arbitrary." Although an extension of time was granted
upon request of counsel, no brief has been received.
    We have reviewed the entire record in this matter and conclude
that the special inquiry officer's decision was fully warranted. We
 find no substance to counsel's contention that the denial of addi-
 tional voluntary departure time was unreasonable. Voluntary de-
 parture is the maximum relief to which respondent is eligible. If
 she finds she needs more time than the special inquiry officer has
 allowed, she can apply to the District Director for an extension.
 See 8 CFR 244.2.
    Under 8 CFR 3.6, a timely appeal stays the execution of the
special inquiry officer's decision during the pendency of the ap-
 peal. As we have held in a number of unreported decisions, the
stay not only affects the automatic deportation provision of the
special inquiry officer's order, but it also tolls the running of the
voluntary departure authorization. See In Ja Kim v. INS, 

403 F.2d 636

 (7 Cir. 1968). Thus, the respondent still has 30 days
from the date of our decision within which to depart voluntarily
and thereby avoid the automatic entry of the deportation order
prescribed by the special inquiry officer.
   ORDER: It is ordered that the appeal be and it is hereby dis-
missed.
   It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this de-
cision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to de-
part, the respondent shall be deported as provided in the special
inquiry officer's order.


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