Since compliance with the 2-year-foreign-residence requirement of
section 212(e), Immigration and Nationality Act, as amended, would
result in exceptional hardship to his United States citizen wife and 4
citizen children, a waiver thereof is granted an exchange visitor who
has been unable to support his family in the Philippines; who are
living with his relatives under unsatisfactory and virtually destitute
conditions; whose wife has been unable to obtain employment in the
Philippines and has no relative able to render financial assistance;
whose oldest child requires corrective surgery for which applicant is
without funds and facilities are unavailable in the area of his
residence in the Philippines and who has been offered a position in the
United States and his salary therefrom and available medical facilities
would enable his child to have the corrective surgery without further
extensive delay.
The applicant, Dr. Antonio Borromeo Santillano, a physician, is a
32-year-old citizen of the Philippines. He entered the United States as
an exchange alien on December 3, 1957, for an internship and residency
in medicine. He interned at Deaconess Hospital, St. Louis, Missouri.
His internship was followed by residencies at St. John's Mercy Hospital
in St. Louis from July 1959 to June 1961, and at Bronx Municipal
Hospital Center in New York City from that time until June 1963. He
departed from the United States on May 7, 1964, and is now in the
Philippines.
Dr. Santillano filed an application for a waiver of the
foreign-residence requirement of section 212(e) of the Immigration and
Nationality Act on August 3, 1964. He is married to a citizen of the
United States and has four United States citizen children, ranging in
age from one to five years. His wife and children reside with him in
the Philippines.
Dr. Santillano has been unable to support his family in the
Philippines. They are living with his relatives under unsatisfactory
conditions and are virtually destitute. Mrs. Santillano has been unable
to obtain employment in the Philippines and has no relative in the
United States who is able to give financial help.
X-rays of the oldest child shortly before the child's departure from
the United States disclosed a congenital defect which permits the
intestines to protrude into the chest cavity. This condition has
resulted in curvature of the spine, which will become progressively
worse without thoracic surgery. There are no facilities in the
Philippines in the area where the applicant and his family reside to do
this type of surgery, and the applicant is without funds to pay for such
surgery.
Dr. Santillano has been offered a position as a pathologist at St.
John's Mercy Hospital in St. Louis. His salary and the medical
facilities available would enable his oldest child to have the
corrective surgery required without further extensive delay.
In view of the foregoing, it has been determined that compliance with
the foreign-residence requirement of section 212(e) of the Immigration
and Nationality Act would impose exceptional hardship upon the
applicant's United States citizen wife and children. The Secretary of
State recommends that a waiver of this requirement be granted.
Therefore, the following order is entered.
ORDER: It is ordered that the application of Dr. Antonio Boromeo
Santillano for a waiver of the two-year foreign residence requirement of
section 212(e) of the Immigration and Nationality Act be and is hereby
granted pursuant to the authority contained in the statute.
Waiver of the 2-year-foreign-residence requirement of section 212(
e), Immigration and Nationality Act, as amended, is granted an exchange
visitor alien, a research physicist, and his dependent wife and 2 minor
children, since his compliance with the requirement would be detrimental
to a program of official interest to the Atomic Energy Commission and
the Department of State has recommended favorably in the matter.
Dr. Erginsoy, a forty-year-old native and citizen of Turkey, entered
the United States as an exchange visitor, with his dependent wife and
two unmarried, minor children, on July 6, 1962. He has since been a
participant in Exchange Visitor Program No. P-I-1957, sponsored by
Brookhaven National Laboratory, Upton, New York. Upon his arrival, he
commenced a one-year appointment as Visiting Associate Physicist in the
Physics Department of the Laboratory. On July 1, 1963, Dr. Erginsoy
accepted a two-year appointment as Associate Physicist on the
Laboratory's Scientific Staff. This appointment is currently in effect.
Dr. Erginsoy came to the Brookhaven National Laboratory after
completing a two-year appointment at the International Atomic Energy
Agency in Vienna, Austria. He states that he is not obligated by
employment commitments of any kind.
Dr. Erginsoy's present sponsor wishes to retain his services as a
research physicist for an indefinite period of time.
The Atomic Energy Commission requested the Department of State to
recommend to this Service that Dr. Erginsoy and his family be granted
waivers of the two-year foreign residence requirement of section 212(e)
of the Immigration and Nationality Act, as amended, applicable to
exchange aliens. On January 22, 1965, the Department of State, upon
reviewing the circumstances, recommended that such waivers be granted on
the grounds that Dr. Erginsoy's compliance with this statutory
requirement would be clearly detrimental to a program of official
interest to the Atomic Energy Commission.
ORDER: Pursuant to the favorable recommendation of the Department of
State, it is ordered that the two-year foreign residence requirement of
section 212(e) of the Immigration and Nationality Act, as amended, be
and the same is hereby waived in the case of Dr. Cavid Erginsoy.
It Is further ordered that the above-cited statutory requirement be
and the same is hereby waived in the cases of Mrs. Ulker Say Erginsoy,
Ali Erginsoy and Omer Erginsoy.
An exchange visitor is granted a waiver of the
two-year-foreign-residence requirement of section 212(e), Immigration
and Nationality Act, as amended, since compliance therewith would result
in exceptional hardship to her United States citizen husband, a
second-year medical student, who is dependent upon her income for living
expenses; who faculty members of 3 different colleges agree is a
brilliant student with great promise in his chosen field and a
separation from his wife at this time would adversely affect the course
of his studies; whose career would be set back if he were to either
interrupt his education here or attempt to continue his studies in
France in order to accompany his wife; and whose departure for two
years would only serve to aggravate his estrangement from his parents.
The applicant is a 25-year-old native and citizen of France. She
resided in that country prior to her admission to the United States, on
August 5, 1960, as an exchange visitor. The applicant participated in
Exchange Visitor Programs G-I-1, under the sponsorship of the
International Educational Exchange Service of the Department of State,
Washington, D.C., from September 1960 to August 1961, and P-I-157, under
the sponsorship of the University of Massachusetts, Amherst,
Massachusetts, for the academic years 1961-1962, and 1962-1963, at the
University's Department of Romance Languages as a graduate student and
instructor of French. During this time the applicant left the United
States for a number of brief vacations abroad. Since September 1963,
she has been employed as an instructor of French at the Dalton School,
New York, New York.
Evidence has been presented establishing the applicant's marriage to
Mr. Stephen P. Hersh, a citizen of the United States, on August 2, 1962,
in Paris, France.
Mr. Hersh is a second year medical student at the New York University
School of Medicine, New York, New York. Faculty members of New York
University, Harvard Medical School, and Amherst College agree that Mr.
Hersh is a brilliant student with great promise in his chosen field.
They also state that a separation from his wife at this time would
adversely affect the course of his studies. Mr. Hersh's career would be
set back if he were to either interrupt his education or attempt to
continue his studies in France, so that he might accompany his wife to
that country.
Mrs. Hersh, moreover, states that her husband is not employed and is
dependent upon her income for living expenses. Mr. Hersh also revealed
and he is estranged from his parents. His departure for two years would
only serve to aggravate this situation.
In view of the foregoing, it has been determined that the applicant's
compliance with the foreign residence requirement would impose
exceptional hardship upon her United States citizen spouse. The
Department of State has reviewed this matter and recommends that the
waiver be granted.
ORDER: It is ordered that the application of Mrs. Claudine A. Hersh
for a waiver of the two-year foreign residence requirement of section
212(e) of the Immigration and Nationality Act, as amended, be and the
same is hereby granted.
Application for adjustment of status, pursuant to section 245,
Immigration and Nationality Act, as amended, is denied, in the exercise
of discretion, to an alien who entered the United States as a
nonimmigrant, having voluntarily renounced her permanent resident status
previously acquired through immigration in order to facilitate her
husband's re-entry as a nonimmigrant.
These cases are before the Regional Commissioner on certification by
the District Director who denied the applications as a matter of
discretion.
The applicants, husband and wife, were born in Germany and are
citizens of that country. They were last admitted to the United States
at New York City on August 20, 1964 as B-2 visitors for pleasure. Mr.
Brunner was previously admitted as a B-2 visitor on September 30, 1961
and subsequently changed to student status. Mrs. Brunner was previously
admitted for permanent residence as a quota immigrant on January 31,
1963. They were married at Minneapolis, Minnesota on September 27,
1963. They returned to Germany on May 30, 1964.
In a sworn statement before a Service officer Mr. Brunner testified
that when he and his wife left the United States in May 1964 they fully
intended to return to the United States to work and had return tickets.
In order to facilitate his return he obtained a nonimmigrant visitor's
visa from the American Embassy, Bonn, Germany rather than await the
issuance of an immigrant visa. He further stated that before he could
be issued a nonimmigrant visa, Mrs. Brunner had to renounce her
permanent residence status, which she did by making the following
declaration before the American Vice Counsul at Bonn:
I voluntarily renounce my immigration visa to the United
States. Since I plan to return to the United States only for a
vacation trip with my husband, I no longer have any use for such a
visa.
Mrs. Brunner was then also issued a nonimmigrant visa.
On September 22, 1964, a little more than a month after their arrival
in the United States, Mr. and Mrs. Brunner filed their applications, the
denial of which is now being considered. On September 28, 1964 Mr.
Brunner obtained permanent employment with the Minnesota Mining and
Manufacturing Company, St. Paul, Minnesota.
It is concluded that the record in these cases amply supports the
District Director's decision. The applications must be denied.
It is ordered that the applications be denied.
Application for permission to change schools pursuant to 8 CFR
214.2(f) is denied, in the exercise of discretion, to an alien who came
to the United States in 1960 as a graduate student, thereafter studied
entirely in the field of political science and sociology and received an
M.A. degree in sociology, since he has accomplished the purpose for
which he came to his country and the course of study he now seeks to
follow -- business administration -- is not related thereto.
Discussion: The applicant is a citizen of China by birth in Hankow,
China, October 29, 1935. He last entered the United States September
24, 1960 as a nonimmigrant student under the provisions of section 101(
a)(15)(F) and section 214 of the Immigration and Nationality Act. He
has been granted extensions of stay, the last of which will expire March
28, 1965.
The applicant came to the United States initially to attend the
University of Washington at the Fall quarter 1960. The Form I-20,
Certificate of Eligibility, stated he was to study in the "Department of
Far Eastern of the Graduate School.' He did not register at that school,
however, but instead registered at Kansas State University to take
"Graduate work in Political Science leading toward the Master of Science
degree.' As Form I-20 was not issued by Kansas State University until
January 6, 1961, the required Service authority to transfer schools was
not approved until January 23, 1961. In the meantime the Service had
been attempting to locate the alien as he had failed to register at the
University of Washington and his whereabouts were unknown.
On June 14, 1961 notification was received from Kansas State
University that the applicant had terminated his studies there in
February 1961, and that his whereabouts were unknown. In September 1961
he registered for study at the University of California at Los Angeles
in the "College of Letters and Sciences, Political Science major.' The
file does not disclose in what activity the applicant was engaged
between February 1961 and September 1961. Authority to transfer schools
again was not requested in advance as required by regulation.
On October 1, 1962 an application for extension of stay was received
from the applicant showing that he was then enrolled at the University
of Oregon. He again had not applied in advance for authority to
transfer schools. The application showed he had been in attendance at
that school during the Winter and Spring terms, 1962, in the field of
Political Science, and that at the Winter term 1961 he received credit
for six hours work completed, having withdrawn from one three-hour
course.
When applying for extension of stay on October 19, 1962, the
applicant stated he was registered in the field of Sociology, and that
he had received credit for six hours work in the Spring term, 1962, and
had again withdrawn from a three-hour course. When he applied for
extension of stay January 8, 1963 it was stated he had received credit
for six hours work in the Fall term, 1962, and had again withdrawn from
a third course carrying three credit hours.
On June 14, 1964 the applicant received his M. A. degree in
Sociology. He has now submitted Form I-20 from Woodbury College, Los
Angeles, California, with a request to transfer to that school. The
form shows he will register in the field of Business Administration.
The record establishes that the applicant came to the United States
on September 24, 1960 as a graduate student. He has since studied
entirely in the field of Political Science and Sociology. He has
received an M. A. degree in Sociology, and has therefore accomplished
the purpose for which he came to the United States. He now seeks
permission to transfer to a new school to start study in Business
Administration, a field completely unrelated to the course which he came
to the United States to study.
As the applicant has accomplished the purpose for which he came to
the United States, and as the course of study he now seeks to follow is
totally unrelated thereto, the application will be denied, as a matter
of discretion.
ORDER: It is ordered that the application to transfer schools be
denied.
Applications for removal pursuant to the provisions of section 250,
Immigration and Nationality Act, are granted a mother and child who are
in need of public aid since the husband/father, from whom the mother
obtained a divorce in 1964, did not provide for his family subsequent to
entry and abandoned them in 1961; the mother, whose health was affected
from working at two jobs, is presently unemployed except for occasional
domestic jobs which she does in her home; and efforts to obtain support
payments from the husband/father have been unsuccessful.
Discussion: The first named applicant is a female, citizen of
Germany, born in Berlin, Germany on May 10, 1932. She was married in
Germany on March 15, 1952 to A C B who was then a member of the United
States Armed Forces. He was born at Woonsocket, New Jersey on July 29,
1930. They are parents of three children. The oldest, M Y , was born
in Germany on July 12, 1950. The other two children, R and A , were
born in the United States. Both applicants were admitted to the United
States at New York City on August 31, 1952 as nonquota immigrants.
The applicants' husband/father did not provide for his family
following their arrival in the United States and was disinterested in
obtaining employment. The adult applicant was forced to work at two
jobs for a total of 16 hours a day. This affected her health and she
became ill with pleurisy. Her doctor ordered her not to work for a
period of six months, thus she and the children were left without means
of support. She was denied welfare assistance for the reason that her
husband was employable. She was forced to prostitution as a means of
providing her children with food and clothing. She also hoped her
husband would be shamed into obtaining employment by her acts. She was
convicted on August 8, 1960 in Torrington, Connecticut of having engaged
in prostitution, sentenced to 90 days in jail, sentence was suspended
for one year and she was placed on probation. Her husband deserted her
in April 1961. The children received aid from the Yolo County Welfare
Department, Woodland, California from June 1, 1960 through April 30,
1963.
The adult applicant obtained a divorce on April 2, 1964. She worked
as a practical nurse and as a cocktail waitress in Las Vegas, Nevada
until June 1964 when she contracted pneumonia and was hospitalized for
several days. Her children were taken into protective custody by the
sheriff's office while she was hospitalized. The boys were first
returned to her, but her daughter, the minor applicant, was held in
custody for medical examination because of her admission that she
engaged in sex acts with a 16 year old boy who was living temporarily in
their home. She has since been released to her mother, but the Clark
County, Nevada juvenile probation officer reports that she has become an
enforcement problem to them.
The adult applicant is presently unemployed except for occasional
baby-sitting and washing and ironing which she does in her home. The
county authorities are assisting her to obtain support payments from her
former husband who is presently apparently in Connecticut, but they have
been unsuccessful to date.
The applicants are in need of public aid from causes arising
subsequent to their entry and they have applied for removal under the
provisions of section 250 of the Immigration and Nationality Act. They
have established that they are eligible for removal from the United
States. The two minor sons are citizens of the United States, but must
accompany their mother if she is removed. She is unable to defray the
transportation cost; therefore, such transportation may be at
government expense. It is concluded that the applications should be
granted.
ORDER: It is ordered that the applications for removal pursuant to
the provisions of section 250 of the Immigration and Nationality Act be
and are hereby granted.
Since beneficiary, an illegitimate child at birth in the Philippines
on June 27, 1944, was over 18 years of age at the time the judgment of
legitimation was granted on September 15, 1964, by the Superior Court of
the State of California, he is not a "child' within the definition of
section 101(b)(1)(C), Immigration and Nationality Act, as amended, and,
therefore, not entitled to nonquota status. (Note: See Also, Matter of
Palacio, Int. Dec. No. 1470, of which the alien in this case is also the
subject.)
The case comes forward on appeal from the order of the District
Director, San Francisco District, dated October 27, 1964, denying the
visa petition for the following reasons: evidence submitted in support
of the petition reflects that the beneficiary was born June 27, 1944;
he was an illegitimate child at birth in that the petitioner was never
married to his mother; he was legitimated by Judgment of Legitimation
granted by the Superior Court of the State of California on September
15, 1964; he is therefore, not a "child' as defined by section 101(b)(
1)(C) of the Immigration and Nationality Act in that he was over the age
of 18 years at the time of legitimation.
The petitioner, a native of the Philippines and a citizen of the
United States by naturalization on October 9, 1946, at Manila,
Philippines, 60 years old, male, seeks nonquota status on behalf of his
unmarried child, born June 27, 1944, a native and citizen of the
Philippines. The certificate of baptism relating to the beneficiary
shows that he is the child of the petitioner and Nena de Silva.
Supporting documents establish that the petitioner's prior marriage to
one Librada Palacio was terminated by a decree of the Superior Court of
the State of California for the City and County of San Francisco on
April 26, 1963. He married his present wife, Maria Dalisay Angeles on
May 6, 1963. There has also been submitted a copy of a decree of the
Superior Court of the State of California, City and County of San
Francisco, entitled "In the Matter of the Petition of Fred R. Palacio To
Be Declared Legitimate Father of Amor Palacio' and five other children
entered on September 15, 1964, declaring that the petitioner is the
legitimate father from birth of the beneficiary and the children
included in the Judgment, that the said minor children are legitimate
children of the petitioner and that a valid and subsisting relationship
of parent and child exists between petitioner and the said minor
children.
In connection with the appeal the petitioner has submitted money
order receipts to the beneficiary dating back to December 14, 1961; and
submitted an affidavit of the uncle and aunt of the petitioner's former
wife, Librada Echaniz Palacio, to the effect that the couple had
separated since the year 1939, that they obtained a legal separation in
1944 from the Mayor of Kuyapo, Philippines, that petitioner has made
many trips to locate his wife but to no avail, and that their niece has
been missing since the year 1945. In addition, counsel has submitted
some of the moving papers which culminated in the Judgment of
Legitimation by the Superior Court of the State of California, City and
County of San Francisco on September 15, 1964. These papers are
entitled "In the Matter of the Petition of Fred R. Palacio To Be
Declared Legitimate Father of Amor Palacio' et al., or "Petition of
Father To Be Declared Legitimate Father of Minor Children,' and consist
of the consent of the present wife to petition of father to be declared
legitimate father of minor children dated July 10, 1964; the petition
of the father to be declared legitimate father of minor children in
which he recites that the natural mother of the children is Nena de
Silva residing in Caloocan City, Manila, Philippines, that the
petitioner has publicly acknowledged his children, that his name was
placed on their birth certificates as their father at his request and
with his consent, that he has lived with them in the Philippines until
November 1957 when he came to the United States, that he has not seen
his first wife, Librada, since 1939 and that in September 1944 he signed
a legal separation but he did not see her and believes her to be
deceased, that on April 26, 1963, petitioner secured a divorce from the
said Librada on the ground of desertion and on May 6, 1963, he married
his present wife who has consented to the petition of her husband to be
declared the legitimate father of the children, that he has always
supported the children and is able to provide for and support them, and
wishes to make them heirs of his estate. Another court document
indicates that the natural mother of the children, Nena de Silva,
consented to the petition of the father to be declared the legitimate
father of the children therein named.
Section 101(b)(1)(C) of the Immigration and Nationality Act includes
in the definition of the term "child' a child legitimated under the law
of the child's residence or domicile, or under the law of the father's
residence or domicile, whether in or outside the United States, if such
legitimation takes place before the child reaches the age of 18 years
and the child is in the legal custody of the legitimating parent or
parents at the time of such legitimation. /1/ Section 230 of the
California Civil Code entitled "Adoption of an Illegitimate Child' has
been construed as an out and out statute of legitimation. /2/ This
section provides that the father of an illegitimate child, by publicly
acknowledging it as his son, receiving it as such with the consent of
his wife, if he is married, into his family, and otherwise treating it
as if it were a legitimate child, thereby adopts it as such; and such
child is thereupon deemed for all purposes legitimate from the time of
his birth. Section 230 specifically exempts that section from the
provisions of foregoing sections relating to formal or judicial
adoptions.
The Judgment of the Superior Court of the State of California, City
and County of San Francisco, which has been submitted in support of the
visa petition does not indicate under what section of the California law
it is based. However, the Judgment is entitled "In the Matter of the
Petition of Fred R. Palacio To Be Declared Legitimate Father of Amor
Palacio' et al. The action appears to be one for declaration of
parental relationship pursuant to section 231 of the California Civil
Code which provides: "An action may be brought for the purpose of
having declared the existence or nonexistence between the parties of the
relationship of parent and child, by birth or adoption.' Or, possibly,
it may be an action under section 255 of the Probate Code of California
which has been held to be not a legitimation statute but simply a
statute of succession. /3/ Section 231 of the California Civil Code is
a paternity or filiation statute. On the other hand, section 230 is a
legitimation statute by a course of conduct which satisfies the
requirements of the statute.
We have previously held that acknowledgment by the natural father
(domiciled in California) of a child born out of wedlock in a foreign
country and residing in that country, without bringing the child into
his family is insufficient to effect legitimation under section 230 of
the California Civil Code. /4/ In the case of Louie Wah You v. Nagle,
27 F.2d 573 (9th Cir., 1928), although the evidence established public
acknowledgment by the father, it was insufficient to prove that the
father received the illegitimate child into his home or settled place of
cohabitation of which he was the head. The domicile of the father was
in the State of California and not in China, because, if his home and
settled place of habitation was in China, his domicile would likewise be
there and the statutes of California could have no application and there
could be no legitimation.
In the instant case, the beneficiary has always resided in the
Philippines whereas the father appears to have resided in California
since 1957. Although the evidence establishes public acknowledgment,
there is no evidence that the petitioner received the beneficiary in his
home in the State of California, which we have held to be a requirement
of the statute. The Judgment of the Superior Court of the State of
California, County and City of San Francisco, does not appear to be a
Judgment pursuant to section 230 of the California Civil Code. That
Judgment of Legitimation was entered after the beneficiary had reached
his 18th birthday, and thus fails to meet the requirement of section
101(b)(1)(C) of the Immigration and Nationality Act. In the event that
the petitioner can produce evidence or a judgment by a California court
showing that the petitioner has been legitimated pursuant to section 230
of the California Civil Code together with the date of such
legitimation, the proceedings may be reopened. Upon the present record
the appeal will be dismissed without prejudice to a reopening if the
petitioner can establish legitimation of the beneficiary prior to his
18th birthday.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) It does not appear that the beneficiary was legitimated under
Philippine law. Section 269 of the Civil Code of the Philippines
provides that only natural children can be legitimated. Children born
outside of wedlock of parents who, at the time of the conception of the
former, were not disqualified by an impediment to marry each other, are
natural. In the instant case, when the beneficiary was born in 1944, to
the petitioner and his blood mother, there was in existence a prior
undissolved marriage of the petitioner and his first wife.
(2) Ballantine v. De Silva, 226 F.2d 623, 632 (9th Cir., 1955)
affirmed, 351 U.S. 570, rehearing denied, 352 U.S. 859, 362 U.S. 907.
(3) Ballantine v. De Silva, /2/ .
(4) Matter of Wong, Int. Dec. No. 1287; Matter of Tinsley, Int.
Dec. No. 1323.
It having been established petitioner is not a United States citizen,
approval of the visa petition to accord his wife nonquota status is
revoked since petitioner, following notification by the Service of
intent to revoke the approval, pursuant to 8 CFR 206.3, failed to avail
himself of the opportunity afforded him to offer evidence in opposition
thereto.
Discussion: The petitioner under the name of Chin Tun Joe filed a
visa petition on October 29, 1963 to accord Yee Mon Yue nonquota
immigrant status as the wife of a United States citizen. The petition
was approved by the District Director of Immigration and Naturalization,
Boston, Massachusetts on December 13, 1963 and forwarded to the
Secretary of State for transmittal to the American Consul in Hong Kong.
On July 1, 1964 the petitioner appeared before an officer of this
Service at Boston, Massachusetts and admitted that his true name was
Chin Bak Koon and that he was a citizen of China and not of the United
States; that his original entry into the United States at Boston,
Massachusetts on August 22, 1961 as a United States citizen was
fraudulent. It has been established that the petitioner is not a United
States citizen and, therefore, not entitled to accord his spouse the
nonquota immigrant status given by this Service on December 13, 1963.
In accordance with the provisions of 8 CFR 206.3 a notice of intent
to revoke the approval of this visa petition was forwarded to the
petitioner on July 29, 1964 and he was permitted fifteen days from the
date of mailing within which to submit written objections to the
proposed revocation of the approval of the visa petition. The
petitioner failed to avail himself of this opportunity to submit any
objections.
ORDER: On the basis of the foregoing it is ordered that the approval
of the visa petition be revoked.
A citizen and resident of Canada who has reason to cross the border
frequently as a nonimmigrant for short periods of time, is not a member
of any of the excludable classes of aliens, intends to continue to be a
resident and citizen of Canada, and desires a nonresident alien border
crossing card solely for the purpose of facilitating entries as a
nonimmigrant is eligible for the issuance thereof pursuant to 8 CFR
212.6(b).
The applicant is a citizen and resident of Canada, born on March 15,
1915, at Little Ridge, New Brunswick, Canada. She is married to Daniel
Bresnahan, also a Canadian citizen.
There are two daughters and two sons by this marriage. Mr. and Mrs.
Bresnahan and children reside at 85 Queen Street, Milltown, New
Brunswick, Canada.
Checks conducted by the Service of various government agencies failed
to reveal any derogatory information concerning the applicant.
Subject in her sworn testimony has stated that as a resident of
Canada, residing in St. Stephen, New Brunswick, immediately across from
the City of Calais, Maine, she has reason to cross the border frequently
as a nonimmigrant for short periods of time; that it is her intention
to continue to be a resident and citizen of Canada; that she desires a
nonresident alien border crossing card solely for the purpose of
facilitating entries as a nonimmigrant.
It has been determined that the applicant is not a member of any of
the classes of aliens who are excludable from admission into the United
States under the law. The applicant has established eligibility for a
nonresident border crossing card.
ORDER: It is ordered that subject's application be granted and that
she be issued a nonresident alien border crossing card, Form I-185,
subject to revocation at any time.
Petition to accord beneficiary first preference classification under
section 203(a)(1), Immigration and Nationality Act, as amended, as an
accordion maker, is denied since it has not been established that he
possesses the specialized experience, as set forth in the clearance
order, to make an entire Italian-type accordion by hand; to design,
model and repair all types of accordions; and has 5 years' experience
on Italian and other type accordions.
Discussion: The petitioner, Nunzio Music Center, 401 Franklin
Avenue, Nutley, New Jersey, is engaged in the sale and repair of
accordions, guitars and other musical instruments, and provides
instructions in musical instruments. The petitioner maintains a
laboratory in Montclair, New Jersey where electronic pick-ups and
amplifiers are manufactured and adopted to accordions, guitars and
organs. The business, established in 1946, has gross annual sales of
$65,000, and employs a total of six persons including four musical
instructors, one salesman and one engineer.
The petitioner is petitioning for the services of the beneficiary as
an accordion maker. The duties of the position are described in the
clearance order as follows: "Makes entire Italian type accordion by
hand. Makes bellows and sets reeds in block. Designs, models and
repairs all types of accordions. Also builds box section.' The
clearance order further specifies that the position requires a person
who has five years experience on Italian and other type accordion and is
literate. The sole document presented to establish the beneficiary's
qualification is an affidavit from the beneficiary's father and three
uncles, the Cintioli Brothers, who are manufacturers of accordians and
reeds in Castelfidardo, Italy. The affidavit states that the
beneficiary became apprenticed to the firm as a child and he learned the
manufacturing phase of the business in two or three years working during
summer vacations and when not attending school and that he was a
journeyman for about seven years prior to his departure to the United
States in 1960. He is experienced in all phases of the construction and
assembling of parts of accordions, design of equipment and tuning of
instrument.
The petitioner was interviewed by an officer of this Service on
December 8, 1964 and testified that he does not manufacture accordions
but purchases them locally or imports them because it is cheaper. He
advised that he primarily required the services of the beneficiary to
engage in research work on remote wireless control amplifiers and the
adaptation of electronic equipment to accordions.
The beneficiary is an unmarried, 23 year old native and citizen of
Italy presently in the United States. He testified on December 8, 1964
that he only worked in the family's factory during summer vacations and
when not attending school from 1948 to 1960; that he was never on the
payroll; and that accordions were produced on assembly line and no one
in the plant made the entire instrument. He graduated from high school
in 1959; studied in England for four months during 1960 and was
admitted to the United States as a nonimmigrant visitor on December 11,
1960. He received an associate in technology degree from the Technical
Institute of Temple University, Philadelphia, Pennsylvania on February
13, 1964 after completion of a three-year course in electronics. Since
that date he has been engaged as personal United States representative
for the firm of Cintioli Brothers. He has not been employed by the
petitioner.
In view of the foregoing, the petition must be denied since the
beneficiary will not be performing the duties specified in the clearance
order. Further, it has not been established that the beneficiary
possesses the specialized experience as an accordion maker as
contemplated by the statute.
ORDER: It is ordered that the petition to classify status of alien
as first preference quota immigrant be, and the same is hereby denied.
Application for permission to change schools is denied, in the
exercise of discretion, to a nonimmigrant student who, notwithstanding a
prior determination by the American Embassy of his proficiency in the
English language, made no effort to attend the school to which destined
at the time of visa issuance and admission to the United States but
instead enrolled, and had actually started classes, in a public day
school for immigrants when he made application for transfer thereto, and
whose financial support is allegedly to be furnished by one who is in
this country as a nonimmigrant and whose authorized stay expires
shortly, since it has not been established applicant is a bona fide
student nor that he has or will have financial support to permit him to
sustain himself while pursuing a full course of study in the United
States.
Discussion: The applicant is an unmarried 32-year-old native of
Jerusalem. He has no relatives in the United States. His father is
deceased. His mother, two brothers and a sister reside in Israel.
Mr. Alvan was admitted to this country at New York, New York, on
November 23, 1964, as a nonimmigrant student (F-1) to November 22, 1965,
destined to the Massachusetts Radio School, Boston, Massachusetts. It
was on the basis of the Certificate of Eligibility (Form I-20) from that
school that the American Consul at Tel Aviv issued a student visa to
him.
On December 15, 1964, Mr. Alvan presented Form I-20, Certificate of
Eligibility, issued by the Day School for Immigrants, a City of Boston
public school, and applied for permission to transfer there. On that
date, he informed the interviewing Immigrant Inspector that friends in
this country told him that his knowledge of English was not sufficient
to qualify at the Massachusetts Radio School and that he should study
the English language first. He did not seek the views of the
Massachusetts Radio School in this regard and did not appear at that
school at all but instead enrolled in the Day School for Immigrants. He
began his studies there on December 14, the day preceding his appearance
at this office. The applicant's Form I-20 from the Massachusetts Radio
School shows that proficiency in the English language is required and
the school had determined that the student has the required proficiency
on the basis of an examination in English at the American Embassy. The
interview, at this office, was conducted in English. A representative
of the Hebrew Immigrant Aid Society was present.
The Form I-20 which Mr. Alvan presented on arrival in this country
showed that he would be supported financially while in the United States
by a friend, Baruch Mazor (A13 802 858). At his interview on December
15, the applicant stated that he had met Mr. Mazor in Israel and came to
the United States at his suggestion. Mr. Mazor is a participant in
Exchange Program P-III-2369 of the American Association for Jewish
Education and will have completed his maximum allowable time in this
country on August 15, 1965. Mr. Alvan wishes to pursue courses in radio
and television because Israel does not yet have television and it is a
field with a good future there. He anticipates his education here will
take two years and stated that he will then return to Israel.
The record establishes that this 32-year-old man entered the United
States on November 23, 1964, destined to the Massachusetts Radio School,
which had issued the Certificate of Eligibility that formed the basis
for the nonimmigrant visa issued to him and for his admission to the
United States. His proficiency in the English language was determined
by an examination at the American Embassy in Tel Aviv. On December 11,
1964, he obtained a Certificate of Eligibility from the Superintendent
of Public Schools for his admission to the Day School for Immigrants, a
Boston public school. He had made no effort to attend the school to
which he was destined at the time of visa issuance and at the time of
his admission to the United States. He had actually started classes at
the Day School for Immigrants when his application for transfer to that
school was made. His financial support is allegedly to be furnished by
one who is in this country as a nonimmigrant and whose authorized stay
expires on August 15, 1965. It has not been established to the
satisfaction of this office that the applicant is a bona fide
nonimmigrant who seeks to remain in the United States temporarily and
solely for the purpose of pursuing a full course of study and who has a
residence abroad which he has no intention of abandoning. It has also
not been established to our satisfaction that the applicant has or will
have financial support to permit him to sustain himself while pursuing a
full course of study in the United States. Because of the foregoing
factors and as a matter of discretion exercised in the best interests of
maintaining proper compliance with the intent of the law and control of
nonimmigrant students, the following order is issued.
ORDER: It is ordered that the application for permission to transfer
to the Day School for Immigrants be denied.
Urgent need of beneficiary's services as a foreign-automobile
mechanic is not established within the contemplation of section 203(a)(
1), Immigration and Nationality Act, as amended, since considerably less
than the alleged thirty-five per cent of petitioner's gross volume of
business is derived from the repair of foreign cars.
The petitioner, Westchester Motors, 2030 Westchester Avenue, Bronx,
New York, submitted a first preference visa petition under section 204
of the Immigration and Nationality Act, as amended, in behalf of Antonio
DiPietro, on June 10, 1963. The services of the beneficiary are sought
as an automobile mechanic, to repair all makes of foreign cars. Such
duties would include the disassembly and overhaul of motors,
transmissions, clutches, etc.
The Bureau of Employment Security clearance order submitted in
conjunction with the petition specifies that the position requires a
person who has had at least five years' experience in the performance of
the duties of the position to be filled.
Evidence has been submitted indicating that the beneficiary was
employed as an apprentice automobile mechanic with Giuseppe Saya,
Venetico Marina, Italy, from March 1951 to May 1953, and as a skilled
automobile mechanic with Giuseppe Rundo, in the same city, from July
1953 to January 1956. He was a specialized automobile mechanic in the
employ of the Finance Corps of Palermo, Italy, from January 1956 to
November 1962. The beneficiary is said to be capable of performing
major repairs such as the disassembly and overhaul of motors, and to
have acted in a supervisory capacity.
The petition reflects that Westchester Motors is engaged in general
auto repair. On April 30, 1964, the petitioner stated that 35% of his
gross volume of business was derived from the repair of foreign cars.
Inquiry at the petitioner's place of business, conducted by an officer
of this Service on July 28, 1964, revealed that only 40% of the
petitioner's business was devoted to mechanical and body repair work,
the rest resulting from the storage, greasing, simonizing, and washing
of automobiles, and the sale of gasoline. Of more than 75 copies of
bills for repair work during the preceding year, only three involved
foreign cars.
From the foregoing it is seen that considerably less than the alleged
35% of the petitioner's gross volume of business is derived from the
repair of foreign cars. It is, therefore, concluded that the petitioner
has failed to satisfactorily establish urgent need for the services of
the beneficiary to perform the duties listed in the job summary of the
clearance order, as required for first preference classification under
section 203(a)(1) of the Immigration and Nationality Act, as amended.
ORDER: It is ordered that the first preference visa petition
submitted by Westchester Motors, in behalf of Antonio DiPietro, be and
the same is hereby denied.
Cancellation of the public charge bond posted in behalf of aliens
upon their admission for permanent residence is warranted since,
following their departure from the United States, they appeared before
the American Consul, Santo Domingo, Dominican Republic, at which time
they executed consular certificates of identification, surrendered their
alien registration cards, executed sworn statements that they have
abandoned their permanent residence in this country and plan to resume
residence in the Dominican Republic, and a check of the appropriate
public welfare files reveals no record of their having received
assistance while in the United States.
This record relates to two aliens admitted to the United States as
permanent residents on January 31, 1959, upon the posting, on January
19, 1959, of a bond that the aliens shall not become public charges.
A request for cancellation of the bond was received from Mr. Carlos
De Los Santos, the obligor, who stated the bonded aliens were departing
the United States to return to their native country, the Dominican
Republic. The obligor was advised that since the permanent departure of
the aliens had not been established it would be necessary for them to
appear before the nearest American Consul abroad to execute a Consular
Certificate of Identification, surrender their alien resident cards,
Form I-151, and make a formal statement attesting to their desire to
abandon their permanent resident status in the United States.
On November 23, 1964 notification was received that the bonded aliens
had complied with the above. Their alien registration cards together
with their sworn statements that they planned to resume residence in the
Dominican Republic and had abandoned their permanent residence in the
United States were forwarded to this office by the American Embassy,
Santo Domingo, Dominican Republic.
As the bonded aliens had resided in New York City since their
admission a request was made to The City of New York, Department of
Welfare, to ascertain whether they had received public assistance.
Information was received that a check of Public Welfare files revealed
no record of assistance having been granted.
It is concluded that the conditions of the public charge bond posted
in behalf of the above-referenced aliens have been fulfilled.
ORDER: It is ordered that the public charge bond posted on January
19, 1959 in behalf of Angela De Los Santos and Carlos De Los Santos be
and the same is hereby cancelled.
(1) Respondent, a 39-year-old unmarried native of China, with advanced training as a pilot, with skill as a contact lens technician, with the education, including a college degree, acquired during residence in the United States since his entry in 1954, and with no relatives here who would be adversely affected by his departure, has not established that his deportation to Formosa would, within the meaning of section 244(a)(1), Immigration and Nationality Act, as amended, result in "extreme hardship' because he refused to return to that country after completing the program of military training for which he entered the United States and expressed political views which are not looked upon with favor by the Nationalist Government of China on Formosa.
(2) In adjudicating an application for withholding of deportation pursuant to section 243(h) of the Act, a special inquiry officer may consider factors other than those directly related to the alien's claim of physical persecution and may deny such application as a matter of administrative discretion without first making a formal finding of the alien's statutory eligibility therefor.
(3) The possibility that respondent, if deported to Formosa, may be prosecuted by a military court martial for offenses committed while a member of the military forces of that country does not constitute "physical persetion' within the contemplation of section 243(h) of the Act. Wang v. Pilliod, 285 F.2d 517 (C.A. 7, 1960)
CHARGE:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) --
Non-immigrant, failed to maintain nonimmigrant status, or to comply with
the conditions thereof.
The respondent, a native of the Mainland of China, a citizen of the
Republic of China on Formosa appeals from an order entered by the
special inquiry officer on October 30, 1964 directing his deportation to
the Republic of China on Formosa on the charge that after entry as a
nonimmigrant alien he has failed to maintain his nonimmigrant status or
to comply with the conditions thereof. Applications for relief under
sections 244(a)(1) and 243(h) of the Immigration and Nationality Act
were denied. Exceptions have been taken to the denial of discretionary
relief which would permit the respondent's continued residence in the
United States.
The respondent, 39 years of age, unmarried, last entered the United
States through the port of Agana, Guam, on October 11, 1954. He was
admitted as a non-immigrant government employee of a foreign government,
to wit, a captain in the Chinese Nationalist Air Force coming to the
United States for advanced military training (section 101(a)(15),
Immigration and Nationality Act; 8 U.S.C. 1101(a)(15)). The respondent
testified that he resigned his commission in the Chinese Air Force on
February 14, 1955 shortly before the scheduled return of his military
unit to Formosa. He has remained in the United States without
authority. The respondent concedes deportability. He alleges that he
is politically opposed to the organization and methods of the
Nationalist government in China. He also alleges that he would be
physically persecuted if returned to Formosa.
The respondent's application for withholding deportation under
section 243(h) of the Immigration and Nationality Act was denied in an
order entered by the Acting Regional Commissioner for the Southwest
Region on August 4, 1959. The respondent sought review of the Acting
Regional Commissioner's denial in the United States District Court for
the District of Columbia. The District Court granted the government's
motion for summary judgment and the respondent appealed to the Court of
Appeals for the District of Columbia. The Court of Appeals on September
10, 1962, following the amendment of 8 CFR 242 and 243, remanded the
case to the District Court with instructions to vacate its judgment and
remand the proceedings to the Immigration Service for a reopening to
afford the respondent an opportunity to seek relief under section 243(h)
according to the procedure established by the amended regulations. This
Board on motion of the District Director at San Francisco ordered the
hearing reopened to afford the respondent an opportunity to seek relief
under section 243(h) pursuant to the procedure established by the
amended regulations and for consideration of such other applications for
discretionary relief that may be filed. Our order of December 19, 1962
also provided that the outstanding order of deportation be withdrawn if
discretionary relief other than under section 243(h) be granted.
The respondent was granted hearing de novo on February 20, 1963,
January 22, 1964, and May 18, 1964. During the course of the hearings
the respondent applied for suspension of deportation under section 244(
a)(1) of the Immigration and Nationality Act as amended by the Act of
October 24, 1962, and in the event that his deportation be not
suspended, he applied for a temporary withholding of deportation under
section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1254(
a)(1) and 1253(h)).
The respondent seeks a suspension of his deportation on the ground
that his expulsion from the United States will cause him extreme
hardship. He testified that if he is forced to leave the United States
he would be unable to adjust to a new environment and would be unable to
obtain employment as a contact lens technician, a position for which he
has been trained. The respondent also testified that his criticism of
the Chiang Kai Shek regime on Formosa has been reported by his superior
officer to the foreign office and that there is no question but that he
would be sentenced to death if returned to Formosa. His fear of
physical persecution because of his criticism of the Chiang Kai Shek
regime and his resignation from the Chinese Air Force is the basis for
his application for withholding deportation under section 243(h) of the
Immigration and Nationality Act.
The special inquiry officer in the exercise of his discretion denied
the respondent's applications for suspension of deportation and for
withholding deportation. The special inquiry officer reasoned that it
would not only be incongruous but would be an abuse of the discretion
delegated to him by the Attorney General to permit the respondent's
continued residence in the United States in view of the demand by the
Nationalist Chinese Government that he be returned to Formosa. The
special inquiry officer is of the opinion that since the respondent
entered the United States as a member of the Armed Forces of one of our
allies, pursuant to a mutual defense effort, solely to receive training
for the purpose of strengthening that ally and the defenses of the
United States he should not be granted relief which would defeat that
purpose.
Counsel for the respondent maintains that the special inquiry officer
committed error in predicating his denial of relief on the conclusion
that the respondent does not merit discretionary relief because he
deserted the Chinese Air Force. He argues that regardless of whether
the respondent "resigned' or "deserted' the important factor bearing
upon the proper exercise of discretion, is that the respondent's actions
were justified in the light of his criticism of the present regime
governing Nationalist China. Counsel maintains that the respondent is
faced with the probability of death if returned to Formosa. Counsel
argues that the proper exercise of discretion vested in the special
inquiry officer under section 244 of the Immigration and Nationality Act
calls for an assessment of the alien's worth rather than a matter of
foreign relations between the United States and Nationalist China.
There was no finding by the special inquiry officer as to whether the
respondent is statutorily eligible for relief under section 244(a)( 1)
of the Immigration and Nationality Act (8 U.S.C. 1254(a)(1)). The
respondent is deportable under a provision of section 241(a) other than
one mentioned in paragraph 2 of subsection 244(a). He has been
physically present in the United States for a continuous period since
October of 1954. We do not believe that his refusal to return to
Formosa under the circumstances which prevail here can be said to
reflect upon his moral character.
The question presented insofar as statutory eligibility for
suspension of deportation is concerned is whether the respondent can
support a claim of "extreme hardship' by relying upon factors which are
concerned with his conduct as an officer in the Chinese Air Force and
the fact that he expressed political views which are not looked upon
with favor by the Nationalist Government of China. We are of the
opinion that the political aspect of this case has no relation to a
determination of "extreme hardship' under section 244(a)(1).
The respondent has a degree from the City College of San Francisco.
He now attends the evening division of the University of San Francisco.
He is gainfully employed as a contact lens technician. He testified
that if he were deported to an area other than Formosa he would have
language difficulties which would in all probability limit his
opportunity for gainful employment. He also testified that he would be
forced to abandon attending school in the evening. He has no relatives
in the United States. A brother resides on Formosa. The respondent
concedes that there would be a need in almost every country for one in
his profession of preparing contact lenses (pp. 11-14).
The personal privation contemplated in a situation characterized by
"extreme hardship' within the meaning of the statute is not a definable
term of fixed and inflexible content or meaning. It necessarily depends
upon the facts and circumstances peculiar to each case. We are
concerned with an alien who was permitted to enter the United States in
1954 for military training as a member of the Armed Forces of a Nation
allied with the United States. His admission for this purpose
contemplated his departure from the United States upon the completion of
the training program.
It is our opinion that the evidence concerned with respondent's
economic well being does not support a claim that his return to Formosa
would result in extreme hardship to him within the meaning of the
statute. The respondent with his advanced training as a pilot; with
his skill as a contact lens technician and with the education he has
acquired during his 10 years residence, is in a better competitive
position for employment than when he entered the United States in 1954.
The respondent has no relatives in the United States who would be
adversely affected by his departure. There are no substantial equities
in the respondent's case other than those arising from the fact that he
refused to return to the country of his nationality after completing the
program of military training for which he entered the United States.
This factor alone is insufficient to support a finding of "extreme
hardship' within the meaning of section 244(a)(1). We find the
respondent statutorily ineligible for suspension of deportation.
The respondent, in the alternative, applied for a temporary
withholding of his deportation pursuant to the provisions of section
243(h) of the Immigration and Nationality Act. He maintains that he
will be subjected to physical persecution if deported to Formosa. The
evidence on this issue consists of the respondent's testimony, magazine
articles concerning political conditions in Formosa and the testimony of
Doctor Ku Cheung Wu, a former private secretary to Generalissimo Chiang
Kai Shek and last a Governor of Formosa from 1949 to 1953. The
consensus of the magazine articles and the testimony of Mr. Wu is that
the Nationalist Government on Formosa is a dictatorial police state;
that secret police arrest people on trumped-up charges and that justice
both civil and military is a farce. It is alleged that the respondent
would be treated as a political opponent of Chiang Kai Shek and that he
would be persecuted for his criticism of the Nationalist Government.
The special inquiry officer is of the opinion that the record of this
case and the records created in the cases of Matters of Cheng Fu Sheng
and Lin Fu Mei, /1/ contained considerable evidence which supports
respondent's claim that he would be subjected to physical persecution if
returned to Formosa (Ex. 6). The special inquiry officer also stated
that the government "offered nothing substantial in refutation' of the
evidence submitted by the respondent (p. 7, special inquiry officer's
opinion). The special inquiry officer denied withholding of deportation
as a matter of administrative discretion without a formal finding on the
issue of whether the respondent would be subjected to "physical
persecution.'
Counsel for the respondent takes the position that an application for
relief under section 243(h) cannot be denied as a matter of
administrative discretion without a formal finding of statutory
eligibility. He maintains that the applicant (respondent) has satisfied
the burden of establishing that he would be subjected to physical
persecution if returned to the country to which he has been ordered
deported. It is argued that neither the statute nor the pertinent
regulations suggest that any factor other than those concerned with
physical persecution may be considered in arriving at a decision on an
application under section 243(h).
We find nothing in the statute or the regulations that limits the
special inquiry officer in the exercise of his discretion. Section 23
of the Internal Security Act of 1950, /2/ the predecessor of section
243(h) required a finding by the Attorney General that the alien would
or would not be subjected to "physical persecution' if such a claim is
made U.S. ex rel. Ching Ping Zee et al v. Shaughnessy, 107 F.Supp. 607
(U.S.D.C., S.D.N.Y., 1952). According to a decision by the United
States District Court for the Northern District of California, the
withholding of deportation under section 23 (supra) was mandatory after
a finding that the alien "would be subjected to physical persecution'
Sang Ryup Park v. Barber, 107 F.Supp. 605 (August 19, 1952).
Congress, in enacting section 243(h) of the Immigration and
Nationality Act, drastically changed the language of section 23 of the
Internal Security Act of 1950. Section 243(h) reads:
The Attorney General is authorized to withhold deportation of
any alien within the United States to any country in which in his
opinion the alien would be subject to physical persecution and for
such period of time as he deems to be necessary for such reason.
(Emphasis supplied.)
The permissive word "authorized' has a far different meaning than the
mandatory word "shall' used in section 23 (supra, footnote 2). The
Attorney General under section 243(h) "is authorized to withhold
deportation of any alien within the United States (when) in his opinion
the alien would be subjected to physical persecution' (Emphasis
supplied.). This permissive language means that the Attorney General or
his delegate may consider factors other than those directly related to
an alien's claim of physical persecution in forming his opinion as to
whether discretion would be exercised either in favor of, or contrary
to, the alien's request for relief. The Attorney General is not
required, as was the case under section 23 of the Internal Security Act
(supra), to make a formal finding with regard to whether the alien will
or will not be physically persecuted. We find no error on the part of
the special inquiry officer in reaching a conclusion in this case that a
withholding of the respondent's deportation is not warranted without
first making a formal finding as to the respondent's statutory
eligibility for such relief (Cf. Silvia v. Carter, 326 F.2d 315 (C.A. 9,
1963), cert. den. 377 U.S. 917).
We do not believe, after a careful review of this record, that the
respondent will be subjected to "physical persecution' within the
meaning of section 243(h) if he returns to Formosa. There is a
possibility that he may be prosecuted by a military court martial. It
is alleged that if convicted he will be subject to punishment under
article 93 of the Armed Forces Criminal Code for a maximum sentence of
not more than three years. It is also alleged that in a similar case a
Chinese Army Captain who refused to return with his military unit after
completing his training in the United States was deported to Formosa,
found guilty by a court martial and sentenced to imprisonment for a term
of only six months (see Ex. 17 and 18). A prosecution before a military
tribunal convened pursuant to the laws of a foreign state to try
offenses committed by a member of the military forces of that country,
cannot be construed to be physical persecution within the meaning of
section 243(h) of the Immigration and Nationality Act. Chao-Ling Wang
v. Pilliod, 285 F.2d 517, 520 (C.A. 7, 1960).
Under section 243(h) it is not a question of whether substantial
evidence supports the exercise of the discretion granted the Attorney
General or his delegate. The Attorney General or his delegate has wide
latitude and the primary consideration is whether the alien has had a
fair opportunity to present his case; whether the Attorney General or
his delegate has exercised his discretion and whether there has been an
error of law in the proceeding. We find no error as a matter of law
that the special inquiry officer's decision rests to some degree on a
political consideration, namely, the foreign policy of the United
States. The special inquiry officer exercised his discretion after
affording the respondent a fair opportunity to present his case. Cf,
U.S. ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 394, 395 (C.A. 2,
1953). The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
(1) It was stipulated that all evidence on the issue of physical
persecution in the three cases covered by files A-10491862, A-11828875
and A-8922627 would be considered by the special inquiry officer in
arriving at his decision.
(2) Section 23, Internal Security Act of 1950, reads as follows:
"No alien shall be deported under any provisions of this Act to any
country in which the Attorney General shall find that such alien would
be subjected to physical persecution.'
Absent a recognition of the validity of petitioner's Mexican "mail
order' divorce by the State of Washington, the State of residence and
domicile of petitioner, a United States citizen, it will not be
recognized as valid in the Philippine Islands for the purposes of his
subsequent marriage in that country to beneficiary, a native and citizen
of the Philippines; hence, his subsequent marriage is invalid for
immigration purposes and does not serve to confer nonquota status on
beneficiary.
The case comes forward on appeal from the order of the District
Director, Manila, Philippines, dated January 25, 1965, denying the visa
petition on the ground that the petitioner's marriage to the beneficiary
is not a valid one and she is not entitled to nonquota status as his
spouse.
The petitioner, a native of the Philippines, a citizen by
naturalization in the United States District Court of Washington,
Washington District, on December 17, 1956, 60 years old, male, seeks
nonquota status on behalf of the beneficiary, a native and citizen of
the Philippines, 30 years old. The parties were married at Pasay City,
Philippines on December 18, 1964. The petitioner was married once
previously, the beneficiary was not previously married.
The record contains a memorandum for the file by the District
Director dated January 7, 1965. The petitioner was questioned under
oath and stated that he had been previously married to Basilisa Labor in
Bohol, Philippines and that two children were born of this marriage;
that he went to the United States in 1951 and since 1952 has been a
resident of Seattle, Washington, where he owns his home; and that he
was naturalized as a citizen of the United States on December 17, 1956,
in -Seattle, Washington. He stated he consulted an attorney in
Brooklyn, New York regarding a divorce from his wife, Basilisa, and the
attorney informed him that he, the attorney, would obtain a divorce in
Mexico and that it would not be necessary for the petitioner to go to
Mexico. The petitioner further testified that his first wife had never
been in the United States and still resides in the Philippines; on
November 25, 1964, through his attorney, the petitioner obtained a
divorce from his wife in the Third Civil Court, Bravos, Chihuahua,
Mexico; and that his attorney told him he was now free to marry again.
The petitioner stated that neither he nor his wife ever went to or
resided in Mexico in connection with the Mexican divorce decree. The
petitioner further stated that he returned to the Philippines in
December 1964, and on December 18, 1964, married the beneficiary at
Pasay City, Philippines. The visa petition indicates that the
petitioner's address in the United States is Seattle, Washington, that
his present address is Caloocan City, Philippines and that he and the
beneficiary intend to reside in Seattle, Washington.
The record, therefore, establishes that neither the petitioner nor
his first wife ever resided in Mexico and that the divorce obtained by
the petitioner is of the type commonly referred to as a "mail order'
divorce decree. The parties were thereafter married in the Philippines.
The generally accepted rule that the validity of the marriage is
governed by the law of the place of celebration is applicable in this
case. /1/ An examination of the marriage contract of the petitioner and
the beneficiary which is contained in the file shows the nationality of
the husband to be American and that of his wife Filipino. The
petitioner, a native-born Philippine citizen, lost such citizenship by
naturalization in a foreign country. /2/ According to article 66 of the
Civil Code of the Philippines, when either or both of the contracting
parties are citizens or subjects of a foreign country, it shall be
necessary, before a marriage license can be obtained, to provide
themselves with a certificate of legal capacity to contract marriage, to
be issued by their respective diplomatic or consular officials. Article
67 of the Philippine Code provides that the marriage contract in which
the contracting parties shall state they take each other as husband and
wife, shall also contain: (1) the full names and domiciles of the
contracting parties; (2) the age of each; (3) a statement that the
proper marriage license has been issued according to law. An
examination of the marriage certificate and other documents fails to
show a compliance with the requirements of article 66 although the
marriage license itself is not an exhibit.
Article 97 of the Civil Code of the Philippines provides that a
petition for legal separation may be filed: (1) for adultery on the
part of the wife and for concubinage, on the part of the husband as
defined in the Penal Code; or (2) for an attempt by one spouse against
the life of the other. This provision, enacted in 1949, in effect,
abolishes divorce in the Philippines. /3/ The abolition of absolute
divorce in the Philippines may result in (1) leniency toward annulment
of marriage; and (2) change of nationality in order to be freed from
the coercive power of Philippine law. If a divorced alien, residing or
sojourning in the Philippines desires to marry there, the requirement
imposed by the Philippine law before a license is issued is for him to
show that he has the capacity to marry under his national law. If under
his national law, the divorce obtained by him is valid, no reason exists
why he should be precluded from marrying in the Philippines. This
liberal attitude commends itself as socially desirable from the
international standpoint. The rule provides a basis for sound
international cooperation in the matter of filing decrees. /4/
The petitioner has resided in the State of Washington since 1952, was
naturalized in Seattle, Washington on December 17, 1956, and continues
to be a United States national and a resident and domiciliary of the
State of Washington. Section 26.08.200 of the Revised Code of
Washington relating to Out-of-State Divorces -- Validity -- provides
that a divorce obtained in another jurisdiction shall be of no force or
effect in this state if both parties to the marriage were domiciled in
this state at the time the proceeding for divorce was commenced.
Research fails to disclose a case exactly in point in the State of
Washington. A "mail order' decree of divorce of a country outside the
United States, i.e., a decree obtained by mail by a spouse not domiciled
in the foreign country in proceedings in which neither the husband nor
wife appeared before the foreign tribunal and the defendant spouse was
not served with process in the divorce forum, is invalid and will not be
recognized. /5/ A state or country cannot exercise through its courts
jurisdiction to dissolve a marriage when neither spouse is domiciled
within the state. /6/ A decree of divorce granted by a court of any
country which is not the bona fide and true domicile is valueless,
unless indeed its effectiveness is recognized by the lex domicilii. /7/
Summarizing, under the present Philippine Civil Code divorce in the
Philippines among Filipions is abolished. A divorced alien (a person of
other than Philippine nationality) must show that he has the capacity to
marry under his national law. /8/ It appears that a Mexican "mail
order' divorce decree is not valid in Washington, the State of residence
and domicile of the petitioner, who is a naturalized American citizen,
and therefore an alien under Philippine law. Accordingly, the appeal
from the decision of the District Director denying the visa petition
will be dismissed.
In the event the petitioner can present a certificate of legal
capacity to contract marriage in the Philippines issued by a United
States consular officer, such certificate may be submitted together with
a motion to reopen the proceedings.
ORDER: it is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of P , 4 I. & N. Dec. 610 (Acting Attorney General, 1952).
(2) The Civil Code of the Philippines, article 49 (1950 ed.).
(3) Garcia & Alba, Civil Code of the Philippines (1950), p. 253.
(4) Salonga, Private International Law (1952 revised ed.), pp. 272
275.
(5) 27B, C.J.S., s. 352.
(6) Restatement of the Law of Confict of Laws, s. 111.
(7) Padilla, Conflict of Laws (1958), p. 169.
(8) Supra, 4. This view is in accord with the view of the Attorney
General in Matter of P , 4 I. & N. Dec. 610.
Respondent, who has never been lawfully admitted to the United States for permanent residence, is statutorily ineligible for suspension of deportation of deportation under section 244(a)(1), Immigration and Nationality Act, as amended, since he is precluded from establishing continuous physical presence by reason of a 2-hour absence to Mexico in 1961 during the statutory period. /*/ Wadman v. Immigration and Naturalization Service, 329 F.2d 812 (1964), held inapplicable since respondent was not lawfully admitted for permanent residence.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry under section 212(a)(20) 8 U.S.C. 1182(a)(20) -- No
immigrant visa.
The issue is whether respondent has been physically present in the
United States for a continuous period of not less than seven years from
the date of his application for suspension of deportation.
Respondent, a 29-year-old single male alien, a native and citizen of
China, illegally entered the United States on August 24, 1951 upon his
false claim to United States citizenship; he has been in the United
States continuously except for a visit of about two hours to Mexico in
November 1961. He voluntarily appeared before the Service in 1962, and
confessed that he was illegally in the United States; these deportation
proceedings were brought. The special inquiry officer found respondent
deportable, granted voluntary departure, denied suspension of
deportation, and certified his order to the Board for final decision.
No change will be made in the special inquiry officer's order.
With one exception, an applicant for suspension of deportation under
section 244(a)(1) of the Act is required to establish that he has been
physically present in the United States for a continuous period of not
less than seven years immediately preceding the date of his application.
The exception relates to an alien who has served honorably for a
minimum period "of twenty-four months in an active duty status in the
Armed Forces' (section 244(b) of the Act (8 U.S.C. 1254( b)). The
respondent attempted to establish that he was within the exception. He
was inducted into the Armed Forces on August 8, 1958 and was transferred
to the Reserves on July 30, 1960. He served in an active duty status
for a total of one year, 11 months and 23 days; this service is several
days short of the 24 months required to give respondent the exemption he
claimed (Matter of Peralta, Int. Dec. No. 1290 (1963); Matter of
Louie, Int. Dec. No. 1310 (1963)). Respondent must, therefore,
establish that he meets the requirement of section 244(a)(1) concerning
continuous physical presence.
The record establishes by affidavits submitted by the respondent,
army record, and Service investigation, that respondent has been
physically present in the United States for a continuous period of not
less than seven years immediately preceding the date of his application
(August 1, 1963) except for his two hour visit to Mexico in November
1961.
We have held than any absence in the required period, no matter how
brief, will break the continuity of physical presence of an alien except
that a "casual visit' as that term is explained in Rosenberg v. Fleuti,
347 U.S. 449 (1963), will not break the continuity of physical presence
if the alien had been lawfully admitted for permanent residence (Matter
of Jacobson, Int. Dec. No. 1413 (1964); Matter of Wong, Int. Dec. No.
1334 (1964). The effect upon our rule of a decision in the judicial
circuit in which the respondent resides must be considered. In Wadman
v. Immigration and Naturalization Service, 329 F.2d 812 (9th Cir., March
26, 1964), an alien whose commission of crime prior to his application
for a visa made him ineligible for the issuance of a visa, nevertheless
received a visa and entered the United States in 1955 upon surrender of
the visa. He remained in the United States continuously except that in
1958 he spent five days of a vacation trip in Mexico. He was found
deportable because his original entry had been illegal and he was
refused suspension of deportation on the ground that his vacation trip
broke the continuity of his physical presence. On judicial review, the
court finding that Fleuti held that the return of a permanent resident
alien after a departure which was not "intended' was not to constitute
an "entry' as that term was defined by section 101(a)(13) of the Act (8
U.S.C. 1101(a)(13)) and pointing to the protection from unsuspected
risks afforded "the resident alien' rejected the contention that there
is a distinction between the making of an "entry' and the concept of
continuous physical presence and returned the case to the special
inquiry officer to determine whether Wadman's departure had been a
"significant one under the guides laid down in Fleuti' (at 816).
The court did not specifically discuss whether or not its
determination applied to an alien whose original entry was illegal.
Since the circuit court's analogy was to a situation which concerned a
legally resident alien, since the court spoke of the resident alien and
did not specifically state that its ruling applied to one who never had
the status of a legal resident alien, since the court specified that the
"guides laid down in Fleuti' were to be applied -- guides which concern
legally resident aliens, since the respondent has never been a legally
resident alien, and since Wadman seeks to create an exception, we
believe it proper to interpret Wadman narrowly and hold that it applies
only to the alien who had been legally admitted for permanent residence
and subsequently became deportable (cf. Zimmerman v. Lehmann, 339 F.2d
943 (1965)). The respondent having never had the status of a legally
resident alien (section 101(a)(20), 8 U.S.C. 1101(a)(20)), we will apply
the rule in Matter of Jacobson, supra, and hold that respondent has
failed to establish that he possesses the continuous physical presence
required by law of an applicant for suspension of deportation.
Apart from finding the respondent ineligible on the ground that he
lacks the required physical presence, we would have no reason to rule
the respondent either ineligible for relief or undeserving of relief.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
(*) Overruled; see 358 F.2d 151 (C.A. 9, 1966), wherein the Court
held that applicant's brief visit to Mexico did not bar him from
consideration for suspension of deportation as a matter of law.
A lawful permanent resident, who, following a brief, casual visit of 4 or 5 hours in Mexico, reentered the United States upon a false claim of citizenship thereby avoiding inspection as an alien, made an entry under section 101(a)(13), Immigration and Nationality Act, upon which to predicate a ground of deportation. Rosenberg v. Fleuti, 374 U.S. 449, inapplicable.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Entered without inspection.
The respondent, a native and citizen of the Netherlands, male, 46
years of age, has been found deportable as an alien who entered the
United States without inspection (section 241(a)(2), Immigration and
Nationality Act; 8 U.S.C. 1251(a)(2)). An application for a waiver of
documents, nunc pro tunc, under the provisions of section 211(b),
Immigration and Nationality Act was denied by an order entered by the
special inquiry officer on March 30, 1962 (8 U.S.C. 1181(b)). An appeal
from this order was dismissed by the Board of Immigration Appeals on
July 25, 1962. The case is again before us on motion of the trial
attorney to reopen the proceedings in the light of the Supreme Court's
decision in the case of Rosenberg v. Fleuti /1/ , rendered on June 17,
1963.
The respondent has resided continuously in the United States since
his admission for permanent residence at the port of New York on March
29, 1930. He was 11 years of age at the time of his original entry.
The respondent testified that he reentered the United States at Reynosa,
Texas, some time in 1959 by falsely claiming to be a citizen of the
United States thereby avoiding inspection as an alien (pp. 10 & 11).
The respondent last entered the United States through the port of
Hidalgo, Texas, on or about July 30, 1960. He testified that he
returned to the United States with a group . . . "we stopped at the
bridge at Hidalgo, Texas, and the inspector asked us if we were all
United States citizens and I nodded my head, yes' (p. 2 of Ex. 2).
According to the record the respondent was in Mexico for only four or
five hours on each occasion.
The issue presented by the trial attorney's motion is whether the
respondent's return to the United States after the two brief casual
visits to a border town in Mexico subjected him to the consequences of
an "entry' into the United States in light of the Fleuti decision
(supra). The Fleuti case concerns an alien who was originally admitted
to the United States for permanent residence in 1952 and had resided
here continuously except for a brief visit of about a couple of hours in
Mexico in 1956. He was ordered deported on the ground that at the time
of his 1956 return he was excludable under section 212(a)(4) of the
Immigration and Nationality Act as an alien "afflicted with psychopathic
personality.' The Supreme Court held that under section 101(a)(13) of
the Act /2/ an innocent, casual and brief excursion by a resident alien
outside the borders of the United States may not have been "intended' as
a departure disruptive of his resident alien status and therefore may
not subject him to the consequences of an "entry' into the United States
on his return.
We are of the opinion that a reopening of the proceedings for the
purpose of reconsidering our decision of July 25, 1962 in light of the
Supreme Court's ruling in the Fleuti case (supra), decided some 11
months later on June 17, 1963, would serve no useful purpose because
Fleuti does not apply to an alien who enters the United States without
inspection. The immigration laws have provided for the inspection of
aliens entering the United States since the Act of March 3, 1875 (18
Stat. 477). Section 235 of the Immigration and Nationality Act
provides, inter alia, that "all aliens arriving at ports of the United
States shall be examined by one or more immigration officers at the
discretion of the Attorney General and under such regulations as he may
prescribe' (8 U.S.C. 1225). 8 CFR 235.1 sets forth in detail the
requirements which must be met by an alien seeking to enter the United
States regardless of the purpose for which he seeks to enter. Among the
requirements are the following: an alien must apply in person at a
place designated as a port of entry and such an alien has the burden of
establishing his admissibility.
The Supreme Court in the Fleuti case (supra) concluded that it would
effectuate Congressional purpose to construe the intent provision in
section 101(a)(13) of the Immigration and Nationality Act (supra /2/ )
as meaning an intent to depart in a manner which can be regarded as
meaningfully disruptive of the alien's permanent residence. The Court
also stated that one of the factors relevant to inferring such an intent
is whether the alien by leaving the United States "accomplish( ed) some
object which is itself contrary to some policy reflected in our
immigration laws.' It was the opinion of the Court that if this be the
case "the interruption of residence thereby occurring would properly be
regarded as meaningful' (374 U.S. at p. 462; 10 L.ed.2d 1009).
There is no question but that the respondent intended to resume his
residence when he reentered the United Sates in 1959 and 1960. However,
this intent in and of itself does not preserve to the alien the right to
return to the United States in a manner which is contrary to the
immigration laws, viz., knowingly evading inspection. The respondent by
claiming to be a citizen avoided the inspection process. Such action is
contrary to a policy which has been reflected in our immigration laws
since 1875. If the immigration laws and the established techniquies of
inspection are to have any meaningful and rational application it must
be held that the respondent made an entry from a foreign port or country
under section 101(a)(13) of the Immigration and Nationality Act (supra
/2/ ) when he returned from Mexico in 1959 and 1960. We conclude that
the case of Rosenberg v. Fleuti does not apply where a resident alien is
charged with entry without inspection following a casual visit to a
foreign country. The motion will be denied.
ORDER: It is directed that the motion be and the same is hereby
denied.
(1) 374 U.S. 449; 10 L.ed.2d 1000.
(2) Section 101(a)(13) of the Immigration and Nationality Act defines
the term "entry' as "any coming of an alien into the United States, from
a foreign port or place . . . except that an alien having a lawful
permanent residence in the United States shall not be regarded as making
an entry into the United States for the purpose of the immigration laws
if the alien proves to the satisfaction of the Attorney General that his
departure to a foreign port or place . . . was not intended by him . .
.' (Emphasis supplied.)
In view of applicant's complete rehabilitation since 1951 as a former
criminal, alcoholic, and drug addict, her temporary admission to the
United States, notwithstanding her inadmissibility under sections
212(a)(4), (9), (12) and (23), Immigration and Nationality Act, as
amended, is authorized pursuant to section 212(d)(3) of the Act to
attend a meeting, and to visit the General Services Headquarters, of
Alcoholics Anonymous, to exchange ideas and information with others who
are also actively engaged in the treatment of drug addicts and
alcoholics.
Applicant is a married female, native, citizen and resident of
Canada, born August 3, 1926, who was excluded and deported from United
States at Detroit, Michigan on September 25, 1951 because of her
criminal record and a Class A medical certificate stating that she was
found to be afflicted with constitutional psychopathic inferiority on
the basis of her past history of "-- repeated criminal activity and
other anti-social behavior including prostitution and drug addiction.'
She has been convicted of the crimes of obtaining goods and money by
false pretenses, uttering, and being an inmate of a bawdy house. These
convictions took place in Canada and are documented in her file. She
admits the commission of the crime of uttering in connection with
obtaining narcotic drugs, and to having engaged in prostitution. Her
appeal from the Class A medical certificate was dismissed and the
medical finding confirmed on October 1, 1951. On July 18, 1952 this
Service denied her application for exercise of the Ninth Proviso to
section 3 of the Immigration Act of 1917. At that time applicant sought
to enter temporarily to visit her husband, who was then an inmate of a
prison in United States. The record indicates applicant now seeks to
enter United States as a nonimmigrant for the period from January 30,
1965 to February 2, 1965 to attend an Alcoholics Anonymous meeting at
Buffalo, New York and to visit General Services Headquarters of
Alcoholics Anonymous in New York City. The application also states that
she would like permanent visiting privileges.
Supporting statements presented with the application claim that
applicant has completely rehabilitated. In a letter of June 4, 1964 the
Rev. James A. Drewelow states that he has known applicant for thirteen
years; that when he first met her she was a dope addict; that she
mentioned to him her desire to change her life, did so, and is now doing
"a great work for humanity in helping unfortunate girls rebuild their
lives -- never once has she gone back to her old habits -- she is an
inspiring speaker -- and her life has been exemplary to all who know
her.' The office manager of Alcoholics Anonymous in Montreal in a letter
of June 12, 1964 states applicant has been a member of that organization
for the past ten and one-half years; is considered one of the more
stable members; "-- by her example has helped many a sick woman
alcoholic along the road to recovery;' and that "-- I take no hesitation
in recommending this person as an honest and trustworthy individual.' In
another letter of June 12, 1964 a priest in Montreal states that he has
known applicant since 1954; vouches for her honesty and high integrity;
states that she is an active, outstanding member of Alcoholics
Anonymous in Montreal; that she was active in organizing Narcotics
Anonymous in Montreal and assisting with organizations in other parts of
Canada; and that he recommends her without reservation. In a letter of
June 10, 1964 another priest states that he has known applicant for two
years; that her life is "surely edifying'; and that she is capable of
living the life of a religious. In a letter of June 20, 1964 Dr. John
A. Larson, Ph.D., M.D., who identifies himself as highly qualified by
training and experience in the psychiatric and medical field,
particularly in the treatment of alcoholics and drug addiction, states
that he has been in constant contact with applicant by mail since 1959
when he wrote to her asking her cooperation in starting work with drug
addicts comparable to that of Alcoholics Anonymous with alcoholics;
that he has the greatest respect and admiration for her; that were he
now in charge of a hospital or outpatient unit he would seek her as a
staff member to assist in treatment of alcoholics and drug addicts;
that throughout their discussions by letter applicant has "not only
shown professional astuteness, dependability, but has exhibited a marked
integrity and sympathetic and yet objective understanding of the patient
-- we have kept contact, but not as patient and physician, but as
colleague and friend. -- in addition to maintaining her sobriety and
abstinence from all types of drugs, she has enrolled to take courses --
I would like to ask her assistance in the final clearance of the
clerical preparation of my present manuscript which I have been
preparing for the past forty years -- .'
Two of the priests who wrote letters in support of this application
and the office manager of Alcoholics Anonymous in Montreal were
interviewed by an officer of this Service. They completely affirmed
their letters in behalf of applicant; stated that they were aware of
her past history of addiction and prostitution; that they believe she
is completely rehabilitated; and that she is not now a person afflicted
with constitutional psychopathic inferiority. In addition, it was
stated that applicant has been continuously attending classes on the
high school and college level; has led an exemplary life helping
others; that she is completely free of any addiction to drugs or
alcohol; has studied hard over the years to improve herself; and that
she has developed an intense interest and participation in religious
life over the past eight years.
The circumstances of this application have been closely scrutinized.
Inquiry, including national agency checks, has revealed no record of
criminal activity, prostitution or narcotic addiction since 1951.
Applicant is now a valuable member of society, actively engaged in
rehabilitation work among alcoholics and drug addicts. In view of the
overwhelming statistics as to recidivism among former drug addicts, her
complete freedom from addiction since 1951 is an astounding
accomplishment. The evidence given by those who are now closely
associated with her, who know her history, and who are themselves
persons of unquestioned veracity cannot be denied. Applicant is
apparently one of the rare cases of rehabilitation found among former
drug addicts, as well as a former alcoholic. Her background has enabled
her to make a unique and valuable contribution to the treatment of
alcoholism and drug addiction. Communication among those working in
these fields is of prime importance. The woman who heads the Women's
Division of Alcoholics Anonymous is to lecture in Buffalo on January 29,
1965. Applicant has mistakenly mentioned the date of this meeting as
January 30, 1965. It is concluded that applicant's entry would serve a
humanitarian purpose. She is a bona fide nonimmigrant. There is no
reason to suspect that her brief presence in the United States would
adversely affect the welfare, safety or security of this country.
It is ordered that the application be granted, subject to revocation
at any time, to permit one entry into the United States despite
inadmissibility under sections 212(a)(4), (9), (12) and (23) of the
Immigration and Nationality Act, at the port of Buffalo, New York on or
before January 29, 1965 for a period through February 2, 1965, for the
purpose of attending a meeting of Alcoholics Anonymous in Buffalo, New
York and to visit the General Services Headquarters of Alcoholics
Anonymous in New York City, to exchange ideas and information with other
persons actively engaged in the treatment of drug addiction and
alcoholism.
Statutory eligibility for adjustment of status to that of a permanent
resident pursuant to the provisions of section 13, Act of September 11,
1957, is established notwithstanding applicant's admission to the United
States as a nonimmigrant under section 3(3), Immigration Act of 1924,
and subsequent change of status to that of wife of a foreign government
official under section 3(1) of that Act, which was automatically changed
to that under section 101(a)(15)(A)(i) upon the effective date of the
Immigration and Nationality Act.
Discussion: The applicant is a 71-year-old native and citizen of
China. She was last admitted to the United States on December 5, 1943
as an alien in transit pursuant to section 3(3) of the Immigration Act
of 1924. On July 31, 1944, the applicant's status was changed from that
of a transit to that of the wife of a foreign government official under
section 3(1) of that Act. She was entitled to this status as the wife
of the Minister for the Republic of China in Washington, D.C. Her
husband held this position until his death on February 21, 1956.
Section 13 of the Act of September 11, 1957 (71 Stat. 642-643)
provides for the adjustment of status to that of permanent residents for
certain persons who have been admitted to the United States under
section 101(a)(15)(A)(i) or (ii), or 101(a)(15)(G)(i) or (ii) of the
Immigration and Nationality Act. The applicant was admitted under
section 3(3) of the Immigration Act of 1924 and had her status changed
to section 3(1) of that act. The change of status is the equivalent of
admission under section 3(1), there being no necessary distinction
between being granted that status at the border or being granted it
within the United States. The classes of aliens described in section
101(a)(15)(A)(i) or (ii) of the Immigration and Nationality Act include
some who were formerly in class 3(1) of the Immigration Act of 1924.
The applicant's classification was accordingly automatically changed to
101(a)(15)(A)(i) upon the effective date of the Immigration and
Nationality Act, December 24, 1952. It is found that notwithstanding
that her admission to the United States and her acquisition of the
nonimmigrant status of the wife of a foreign government official was
under a prior law, the admission and status meet the requirements of
section 13 of the Act of September 11, 1957.
The applicant was gainfully employed by the New York Chun Gift Shop,
New York City, as a saleswoman, from April 1956 until April 1957. She
worked for the Ming Sang Company at 25 Elizabeth Street, New York City,
as a sewing machine operator, from November 1959 until March 1961. She
is presently supported by her son, Robert C. Lee, who is employed by the
Insulation Manufacturing Company, 11 New York Avenue, Brooklyn, New
York, with a salary of $500 per month.
The applicant presently resides with her son, Robert, at 430 West
119th Street, Apartment 47, New York 27, New York. She has three
children, Robert C. Lee and Rose Lee Kingman, who are United States
citizens, and Frank Lee, Jr., who resides on the mainland of China.
The good moral character of the applicant has been established. She
is not inadmissible to the United States under the excluding provisions
of the Immigration and Nationality Act, except for lack of entry
documents. She has fulfilled all of the requirements for eligibility of
section 13 of the Act of September 11, 1957. The Secretary of State has
no objection to the granting of permanent residence status.
The applicant is chargeable to the quota for Chinese persons, which
is oversubscribed. All the evidence of record justifies the conclusion
that were she now applying for admission, in possession of appropriate
documents, she would be admitted.
It is ordered that the status of the applicant be adjusted to that of
lawful permanent resident of the United States.
It is further ordered that if, during the session of Congress at
which this case is reported or the session next following, either the
Senate or the House of Representatives passes a resolution unfavorable
to the applicant, this order be automatically revoked, and the applicant
be required to depart from the United States in the manner provided by
law.
Note: Section 3(1) of the Immigration Act of 1924 classifies the
following aliens, inter alia, as nonimmigrants:
"an accredited official of a foreign government recognized by
the Government of the United States, his family, attendants,
servants and employees,
* * * * * * *
Section 101(a)(15)(A) of the Immigration and Nationality Act
classifies the following aliens, inter alia, as nonimmigrants:
"(i) an ambassador, public minister, or career, diplomatic or
consular officer who has been accredited by a foreign government
recognized de jure by the United States and who is accepted by the
President or by the Secretary of State, and the members of the
alien's immediate family;
"(ii) upon a basis of reciprocity, other officials and
employees who have been accredited by a foreign government
recognized de jure by the United States, who are accepted by the
Secretary of State, and the members of their immediate families;
and
"(iii) upon a basis of reciprocity, attendants, servants,
personal employees, and members of their immediate families, of
the officials and employees who have a nonimmigrant status under
(i) and (ii) above . . .'
As the wife of an accredited high-ranking career diplomatic officer,
the applicant was found to be within the class of aliens described in
section 101(a)(15)(A)(i) of the Immigration and Nationality Act, and her
status was automatically changed to that classification on December 24,
1952.
(1) Personal notice to defendant in Greece of intention to cancel his United States citizenship pursuant to section 15, Act of June 29, 1906, forwarded via the American Consul, Athens, was not vitiated by the Consul's remailing, which did not interrupt transit of notice which commenced with the registered mailing in New York and ended when received and signed for by defendant, and was adequate under both the federal statute and the laws of New York because it served reasonably to inform defendant of the legal steps which was being taken against him and afforded him an opportunity to appear and to defend his citizenship.
(2) Despite lapse of 5 1/2 months between date of order for publication and date publication commenced, judgment of U.S. District Court, New York. September 28, 1940, cancelling defendant's naturalization for presumptive fraud under section 15, Act of June 29, 1906, is not void for lack of jurisdiction since the order of publication required compliance with Rules 50 and 52, N.Y. Rules of Civil Practice, but made no provision for compliance with Rule 51 which provided that publication commence within 3 months of date of order; any defect in publication of notice was an irregularity rather than a jurisdictional defect and was corrected when personal notice was given to defendant by registered mail.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant -- Remained longer.
Respondent is 27 years old, single, male, a native of Greece. He was
admitted to the United States at New York on or about July 4, 1962, as a
nonimmigrant visitor for pleasure. Thereafter, he was authorized to
remain until September 15, 1962. He has not departed, and no
application has been made to extend his stay beyond September 15, 1962.
He claims United States citizenship through the naturalization of his
father in New York before his birth. His claim to citizenship has been
rejected by the Immigration and Naturalization Service. The special
inquiry officer found that respondent has established good moral
character and the financial ability to qualify for voluntary departure,
and granted respondent voluntary departure with an automatic order of
deportation if he fails to depart. Respondent appeals from that
decision. The appeal will be dismissed.
Respondent's father, Panos Psalidas, was naturalized in the United
States District Court for the Southern District of New York on April 13,
1931. He lived in this country from 1914 until 1935. On August 28,
1922, respondent's parents were married in New York. Panos Psalidas
joined his wife in Greece on January 7, 1935. Respondent was born in
Greece on December 14, 1936. It is said that Panos intended only to
visit in Greece, and then to return with his wife and family to the
United States. However, respondent's mother died in 1937, and Panos
never returned. Respondent remained in Greece with his father from the
time of his birth until his departure for the United States in 1962.
On June 29, 1938, the United States Attorney filed a petition in the
United States District Court for the Southern District of New York to
cancel the certificate of citizenship granted Panos Psalidas. The
petition states that Panos Psalidas' last place of residence in this
country was New York, within the jurisdiction of the court. This action
is authorized by section 15 of the Act of June 29, 1906 (former 8 U.S.C.
405), which establishes a rebuttable statutory presumption that the
naturalization was procured by fraud if within five years after the
issuance of the certificate of naturalization the naturalized person
should take permanent residence in any foreign country. /1/ On January
20, 1938, the United States Vice Consul at Athens, Greece executed a
certificate of fraudulent naturalization of Panos Psalidas based on the
fact that within five years after obtaining a certificate of
naturalization he took up permanent residence in Greece, thereby
demonstrating that at the time he became a citizen he did not intend to
remain permanently in the United States.
On September 28, 1940, a default judgment revoking Panos Psalidas'
naturalization was entered in the United States District Court for the
Southern District of New York. The court ordered that the certificate
of citizenship issued to him be cancelled, set aside, and surrendered.
On December 2, 1940, the surrendered certificate of citizenship was
forwarded to the Immigration and Naturalization Service. It is well
established that when a grant of citizenship was extinguished by
judicial cancellation for presumptive fraud prior to January 13, 1941,
/2/ any status dependent upon that citizenship also was extinguished.
Therefore, respondent lost his claim to United States citizenship based
on his relationship to Panos Psalidas, if the judgment of
denaturalization was valid and binding.
In 1955 respondent was an applicant for a fourth preference visa. He
served in the Greek Army from October 1958 to June 1960, and he voted at
national elections in Greece in 1956 and 1960. We do not reach the
question of his possible expatriation by these acts, in view of our
finding that respondent has had no claim to United States citizenship
since his father's citizenship was cancelled on September 28, 1940.
Respondent contends that the court order cancelling his father's
citizenship was improperly issued, in that the court was without
jurisdiction by reason of its failure to follow the procedure prescribed
for giving notice in such actions. Respondent refers to the language of
section 15 of the Act of June 29, 1906, "* * * and if the holder of such
certificate be absent from the United States of from the district in
which he last had his residence, such notice shall be given by
publication in the manner provided for the service of summons by
publication or upon absentees by the laws of the State or the place
where such suit is brought.' The New York law governing service by
publication is set forth in Rules 50, /3/ 51, /4/ and 52 /5/ of the
Rules of Civil Practice. Respondent contends that the Government failed
to comply with the legal requirements for obtaining jurisdiction over
Panos Psalidas by publication under the New York rules, in that (1) the
mailing to Panos Psalidas did not occur on or before the first date of
publication, as required by Rule 50, and (2) the first publication did
not take place within three months after the order of publication was
granted on December 7, 1938. Respondent contends, therefore, that the
denaturalization decree entered on September 28, 1940, was absolutely
void and may be attacked collaterally at any time.
The record establishes that an affidavit of mailing was made by an
employee in the office of the United States Attorney for the Southern
District of New York stating that the required papers were mailed to the
Vice Consul of the United States at Athens, Greece, on May 13, 1940.
There is also an affidavit from the United States Consul at Athens,
Greece, stating that he, in turn, mailed the papers to the "defendant'
(Panos Psalidas) on June 8, 1940, by registered mail to his residence in
Greece. The papers were received by Panos Psalidas, as evidenced by a
postal return receipt bearing his signature. The required papers
consisted of a copy of the writ of subpoena, petition and notice
required by law, and a copy of the order for publication. It is conceded
that the writ of subpoena was published for the first time in two New
York newspapers, the New York Law Journal and the New York Post, on May
16, 1940, and was published thereafter for six successive weeks.
The special inquiry officer held (1) that the Government met all the
requirements set forth in the court's order for service by publication;
(2) that even though there may not have been exact compliance with the
statutes, the court was not deprived of jurisdiction, and the
denaturalization decree is not void ab initio; (3) that there was
strict compliance with the order for service by publication and
substantial compliance with the New York statutes providing for service
by publication; (4) that an administrative agency may not disregard a
judgement of a United States court when there is an issue as to whether
the court had jurisdiction over the defendant; (5) that respondent may
attack the decree cancelling his father's citizenship, but that the
attack must be in the court which issued the decree.
The Board concludes that respondent's father received personal notice
under the federal statute. This law provides no specific method of
service, as pointed out in United States v. Tuteur, infra, and United
States v. Cardillo, infra, and the best method would seem to be the one
that conforms to the local pattern and is successful. We conclude that
respondent's father also received notice by publication under the New
York law. Respondent complains that the mailing to Panos Psalidas via
the consul at Athens prior to the commencement of publication was not a
timely mailing to the defendant himself. The fact that the necessary
documents were remailed by the consul to the party at his home did not
interrupt their transit which commenced with the registered mailing in
New York and ended when he received them, and signed the return receipt.
The Board holds also that the lapse of five and a half months between
the court's order of publication and the date publication was commenced
was not a fatal defect in service. To hold otherwise, to quote from
United States v. Nicolay, infra, "would surely be most technical.'
Respondent relies heavily in his briefs and in oral argument on our
decision, Matter of C , 6 I. & N. Dec. 366 (November 18, 1954), wherein
the respondent's father had only 29 days' notice. We found that this
period was inadequate under both the federal statute (providing for 60
days' personal notice) and the law of Illinois (providing for 30 days'
notice to an absentee defendant). The complaint against C 's father was
filed on October 1, 1935. The decree of the court purporting to cancel
the citizenship of the person was dated October 28, 1935. We relied on
Yamashita v. Hinkle, 260 U.S. 199 (1922), and on U.S. ex rel. Lapides
v. Watkins, 165 F.2d 1017 (2d Cir. 1948) and found that we may, if
necessary, reject a judicial decree granting or cancelling citizenship,
if the judgement of the court is void on its face. We held that service
by publication must comply with the statute authorizing such service.
The Government had used a "consent and waiver' signed by C (in lieu of
formal notice or service), which has been disapproved by the courts in
several cases, and which was not used in the instant case. This is a
signal distinction between C and the instant case.
There is no doubt that a certificate of citizenship may be revoked by
default when the procedure prescribed by Congress has been strictly
followed. We will refer again to the use of the waiver of notice and
consent to judgment. The facts in the instant matter take it outside
the scope of Matter of C , supra, and the cases cited therein. We have
reviewed the cases wherein judgements of denaturalization were entered
by default and were later attacked for procedural defects. We agree
with counsel that the principal issue is whether or not there was
adequate notice to Panos Psalidas. Most of the cases fit into a
rationale, as follows:
A. If there was adequate notice or service of process by the
Government upon the denaturalized citizen so that the court had
jurisdiction:
1. The party claiming citizenship is bound by the rule that he
must respond or appeal promptly, and he cannot use a dilatory
motion to reopen in lieu of a defense undertaken, or an appeal
taken, within a reasonable time. Sunal v. Large, 67 S.Ct. 1588,
332 U.S. 174 (1947); Title v. United States, 263 F.2d 28 (9th
Cir., 1959); Zurini v. United States, 189 F.2d 722 (8th Cir.,
1951); United States v. Kung. 163 F.2d 344 (2d Cir., 1947);
United States v. Cardillo, 135 F.Supp. 798 (D.C. Pa., 1955).
2. The party claiming citizenship is bound by the rule that a
derivative citizen has no standing to attack a denaturalization
judgement taken prior to the Nationality Act of 1940 by default
against a parent who did not defend. Battaglino v. Marshall, 172
F.2d 979 (2d Cir., 1949), cert. den. 338 U.S. 829; Krause v.
United States, 136 F.2d 935 (7th Cir., 1943), cert. den. 327 U.S.
781, 66 S.Ct. 680 (1946); U.S. ex rel. Harrington v.
Schlotfeldt, 136 F.2d 935 (7th Cir., 1943); Rosenberg v. United
States, 60 F.2d 475 (3d Cir., 1932), cert. den. 287 U.S. 645; In
re Naturalization of Estevez, 189 F.Supp. 705 (D.C. Pa., 1960);
Manha v. Brownell, 146 F.Supp. 411 (N.D. Cal., 1956); Antonacci
v. Brownell, 133 F.Supp. 201 (S.C. Ill., 1955); Sanders v.
Clark, et al, 76 F.Supp. 489 (D.C. Pa., 1948).
B. If there was not adequate notice or service of process by
the Government upon the denaturalized person, so that the court
issuing the denaturalization order had no jurisdiction:
1. It makes no difference that a long period of time has
elapsed during which the denaturalized person has done nothing to
protect his citizenship or to protest the proceedings. Stennerman
v. Brownell, 204 F.2d 336 (9th Cir., 1953); United States v.
Kiriaze, 172 F.2d 1000 (5th Cir., 1949); U.S. ex rel. Stabler v.
Watkins, 168 F.2d 883 (2d Cir., 1947); U.S. ex rel. Volpe v.
Jordan, 161 F.2d 390 (7th Cir., 1948); United States v. Sotis,
131 F.2d 783 (7th Cir., 1942); United States v. Milana, 148 F.
Supp. 152 (E.D. Mich., 1957).
2. It makes no difference that the party attacking the
denaturalization judgement collaterally is claiming citizenship as
a derivative. United States v. Nicolay, 148 F.2d 608 (2d Cir.,
1945); Laranjo v. Brownell, 126 F.Supp. 370 (N.D. Cal., 1954).
There are numerous cases in all the state reports concerning the
subject of adequate service, as typified by Ferguson v. Crawford, 70 N.
Y. 253 (N.Y. Ct. App., 1877), cited by respondent. We limit our
discussion principally to cases concerning denaturalization, because (1)
the case arises under federal statute; (2) the courts tend to treat
citizenship matters differently from estate and property controversies;
and (3) the local cases often turn on a rule of practice, or a statute
delineating procedure for special situations, or in a particular court.
The statute (section 15, Act of June 29, 1906) gives the defendant in
revocation proceedings "sixty days' personal notice,' and if he is
absent from the United States "such notice shall be given by publication
in the manner provided for the service of summons by publication . . .
by the laws of the State . . . where such suit is brought.' The cases
differ widely in interpreting the notice and service requirements. What
consitituted adequate notice in one case is found to be noncompliance in
another. In United States v. Tuteur, 215 F.2d 415 (7th Cir., 1954), the
order against defendant was not entered by default, and the case was
remanded for trial of questions of fact. The court found, however, that
respondent had been given adequate notice. The circuit court was asked
to review a summary judgment cancelling respondent's certificate of
naturalization, wherein the respondent contended that the district court
did not acquire jurisdiction over him because he did not have sixty
days' "personal notice' of the action. It was stipulated that service
"was effected' on the wife of respondent by a Deputy United States
Marshal. The district court found that notice and manner of service was
sufficient to meet the requirement of the statute. The circuit court
said:
The controlling question, therefore, is what kind of notice is
required by the term "personal notice'. Giving to the words their
common place meaning personal notice is communication of
information, orally or in writing, according to the circumstances,
directly to the person affected or to be charged. 66 C.J.S.,
Notice, par. 8, p. 641.
Notice in its legal sense may be defined as information
concerning a fact, actually communicated to a person by an
authorized person, or actually derived by him from a proper
source. Notice is regarded in law as actual when the person
sought to be affected by it knows thereby of the existence of the
particular fact in question. 66 C.J.S., Notice, par. 2, pp. 635,
637.
* * * * * * *
The statute makes no reference to service of the required
notice and indeed the method of giving the required notice is not
specified by the statute. If, as a matter of fact, personal
notice to the respondent results from any method which petitioner
uses, the purpose of the statutory provision has been met and no
rights of the respondent have been infringed.
The court recites that the undisputed facts of record sustain the
trial judge's finding that the notice was sufficient, and that the
record establishes that the respondent personally and actually received
notice of the pending petition.
In the cases cited under paragraph A(1) and (2) above, the
Government's notice and service procedure was found adequate. In Zurini
v. United States, 189 F.2d 722 (8th Cir. 1951), Zurini came into court
in 1948 declaring that he had no knowledge that his decree of
naturalization had been cancelled in 1935. The court said, "It is not
conceivable to us that a district court, except in the most
extraordinary judgement which it had jurisdiction charged with an abuse
of discretion in refusing to vacate, after the lapse of more than
fourteen years, a judgment which it had jurisdiction to enter.' The
court considered that the notice given Zurini by registered mail through
the American Consulate in Italy and the publication, copies of which
were mailed to him, were adequate to advise him that the United States
was seeking the cancellation of his citizenship, and that he was charged
with knowledge of the proceeding.
In United States v. Cardillo, 135 F.Supp. 798 (D.C. Pa., 1955), the
Government petitioned to revoke a certificate of naturalization. The
sole issue was whether jurisdiction existed when service was made by
registered mail and publication, and the proper address of the
respondent was not set forth. As in Tuteur, the court observed that the
statute did not specify any form of notice or process, by registered
mail or otherwise, quoted from Rule 4 of the Federal Rules of Civil
Procedure /6/ and declared that the Act must be liberally construed,
requiring merely that respondent have personal notice 60 days prior to
hearing. That actual notice was effected was evidenced by the
registered mail receipt which was signed either by the respondent or by
some person on behalf of respondent. There was also publication once a
week for three successive weeks in two publications, as ordered by the
court. The court said that no one should be deprived of his citizenship
without the strongest cloak of protection, but "a corresponding duty
rests upon such person to come forth with his defense where actual
notice has been given him and receipt of such notice has been
exemplified by his own writing or writing by an authenticated
representative in his behalf.' The court stated that the publication
contained an erroneous address which could have resulted in confusion,
and therefore the publication of notice was defective, but the defect
was cured when registered notice was given the respondent.
Antonacci v. Brownell, 133 F.Supp. 201 (S.D. Ill., 1955), is similar
on its facts to the instant case. The court held that the suit by the
son of a naturalized citizen whose certificate of naturalization has
been cancelled in a proceeding under 8 U.S.C. 405 (1927) is a collateral
attack, and all legal presumptions arise in favor of the decree of
denaturalization; the findings of fact contained in the
denaturalization decree with respect to the questions of jurisdiction,
the service of process and the publication of notice, are conclusive,
and such findings may not be attacked by evidence not found in the
record. A finding in the denaturalization decree that there was due
notice of the filing of the suit by publication three times as required
by law is also conclusive, although the record contained no certificate
that publication was had during three consecutive weeks; a presumption
arises that the court heard evidence with respect to the publication of
notice, and based its findings thereon, and it is not necessary that the
proof of publication be by affidavit of the publisher.
We find that Zurini, Cardillo, Antonacci, and Tuteur, all supra, and
other cases cited above under A(1) and (2), are adequate authority to
support a conclusion that Panos Psalidas had sufficient notice by
registered mail through the consul at Athens.
Several cases holding that there was noncompliance with the
requirements for notice are unsatisfactory as authorities, because they
were litigated during hostilities. After the emergency has passed, the
courts tend to compensate the individual for the severity of the
war-time legislation or the inconvenience he has experienced. In this
category comes Klapprott v. United States, 335 U.S. 601 (1949), wherein
a Bund member was in jail for several years on criminal charges and
continuously during denaturalization proceedings. In United States v.
Nicolay, 148 F.2d 608 (2d Cir., 1945), the court found the order of
publication and other requirements were adequate and stated, "On the
face of the record there was jurisdiction to cancel Nicolay's
certificate of naturalization.' However, Nicolay was in Germany, and
because of the war he could not return to testify or even to supply a
deposition. It was held that until communication with him became
possible, so that be could appear if he desired, he has not been given
his day in court.
Jurisdiction of the trial court cannot be predicated upon a form of
consent to the judgment and waiver of further notice, when Congress has
outlined the procedure to be followed. In Stennerman v. Brownell, 204
F.2d 336 (9th Cir., 1953), and Laranjo v. Brownell, 126 F.Supp. 370 (N.
D. Cal., 1954), the Government had used a "Form of Consent and Waiver'
as the basis for jurisdiction. In both cases judgment had been entered
in the trial court against each defendant the day following the filing
of the petitions. There had been no attempt by the Government to comply
with the publication and service requirements of the statute. It was
held that a denaturalization decree taken by default may be set aside
for lack of jurisdiction through improper service, and that a default
decree based only on the consent and waiver by the absent defendant
cannot operate to nullify his citizenship ab initio, because such a
consent and waiver is in the nature of a voluntary relinquishment of
citizenship and does not evidence a fraud. The "consent and waiver'
technique was used in Matter of C , 6 I. & N. Dec. 366, and we followed
Stennerman and Laranjo and found that this procedure (combined with the
Government's failure to comply with other statutory requirements) was
insufficient, and that the Illinois court never acquired jurisdiction of
the absent C to vacate his decree of citizenship. In the instant case
the consent and waiver was not used. A letter from Commissioner of
Immigration and Naturalization Service, Washington, D.C., to Immigration
and Naturalization Service, New York, April 27, 1938, states, "Mr.
Psalidas has refused to sign a form of consent and waiver.' This is a
significant distinction between C and the instant case.
United States v. Kiriaze, 172 F.2d 1000 (5th Cir., 1949), United
States v. Sotis, 131 F.2d 783 (7th Cir., 1942), and United States v.
Milana, 148 F.Supp. 152 (E.D. Mich., 1957), all held denaturalization
judgments void for noncompliance with statutes authorizing service by
publication. Kiriaze, supra, stated that where the United States "seeks
not by actual notice to the citizen but by substituted service by
publication to deprive him of this precious right, it must strictly
comply with the statute authorizing such service.' The opinion is not
helpful to us, because it does not state in what respect the substituted
service failed to comply with the statute. The court said, 172 F.2d
1001, footnote 2, "The contention made was that the judgment was based
upon citation by publication under the Mississippi laws and there had
been a failure to comply therewith.' Kiriaze was caught in Greece during
World War II and had been unable to return to the United States to
defend his citizenship against the denaturalization proceeding. The
action of the court may have ben influenced by this circumstance.
Sotis, supra, held that "there was compliance with the Illinois
provision' but that the record did not "show conpliance with the federal
requirement.' The court held that the marshal's "affidavit of
nonresidence' was inadequate, and that there was unreasonable delay in
publishing the notice. The "affidavit' was executed on March 22, 1938,
and filed on March 28, 1938 but the first publication was not made until
September 13, 1938. In this respect it is like the instant case. The
court declared that the record disclosed no circumstances to justify the
unreasonable delay in publishing the notice, and that the delay was such
as to invalidate the notice. The court found that the denaturalization
decree on March 14, 1939, was a nullity, and could be expunged whenever
the jurisdictional question was called to its attention. Sotis had no
actual notice, and his certificate of naturalization was cancelled
without his knowledge. While his motion to set aside the decree of
cancellation was presented nearly three years after the decree was
entered, it was within a month after Sotis acquired actual knowledge
thereof. Again, the circumstances differ from the instant case where
Psalidas received notice at the time of the commencement of the action,
but no move was made to challenge the Government's action until his son
came to this country 22 years later.
Milana, supra, is similar on its facts to the instant case. Palao
Milana moved the court to vacate an order entered in 1936 cancelling his
father's (Rosario Milana's) certificate of naturalization for having
taken up permanent residence in his native country within five years of
his naturalization. Rosario died in 1947. Palao attacked the
jurisdiction of the court on the ground that Rosario was never served
with notice of the proceedings. The Government contended the service
was valid, and that Palao was not a proper party to bring the motion, in
that, under Rule 60(b) a court might give relief from judgments only on
the motion of a "party or his legal representative.' The court said that
Palao was not born at the time of the order, but even if he were then in
existence his derivative citizenship would not have given him standing
to be heard in a proceeding to revoke his father's citizenship, citing
U.S. ex rel. Harrington v. Schlotfeldt, 136 F.2d 935, 939 (7th Cir.,
1943), and Sanders v. Clark, 76 F.Supp. 486 (D.C. Pa., 1943). The
court held, however, citing Wetmore v. Karrick, 205 U. S. 141 (1907),
and other cases, that it may on its own motion set aside a void
judgment, provided notice has been given of the contemplated action, and
an opportunity to be heard is afforded the parties. On this basis,
then, the court took jurisdiction of the proceeding, stating, "The
conclusion that the judgment in question is void is inescapable,' and it
is "almost too elementary to bear repeating that a judgment rendered
without valid personal or substituted service on the defendant is void.'
The court found that there was no personal service on Rosario Milano,
and that the substituted service did not comply with the statutory
provisions in effect in Michigan. It is not clear from the decision
whether Milano had actual notice of the proceeding. An affidavit in the
record stated only that the order of publication was mailed to the
defendant but did not state that the mailing was by registered mail and
the return receipt demanded, as required by the Michigan statute. There
was a delay of three and one-half months between the date of the return
that personal service could not be made and the date of the execution of
the affidavit of inability to make personal service. The court stated
that it must appear at the time substituted service is employed that
personal service was unobtainable, and the affidavits or proofs were not
in the record.
We are not persuaded by Kiriaze, Sotis and Milana that a delay in
service in this type of case constitutes a detriment to the defendant.
The reason for the rule that only a short period should elapse between
the proof of inability to serve a defendant and the making of the
affidavit or the order of publication, or the actual publication, is
that "absence from customary places' may be a temporary condition, and
there is no inference that it will continue indefinitely. This
reasoning loses its application and its logic in a denaturalization
proceeding where the very basis of the proceeding is the fact that the
citizen has departed from this country and has taken up his residence
elsewhere. The Government must establish not only that he is absent
from the jurisdiction (as required by the statutes governing substituted
service), but that he established his foreign residence within five
years of his naturalization. It is this foreign residence that was
under the statute (8 U.S.C. 405 (1927)) "prima facie evidence of a lack
of intention * * * to become a permanent citizen of the United States.'
While a delay in publication may prejudice a defendant in some kinds
of litigation, the absentee defendant in a denaturalization proceeding
is more apt to be prejudiced by speed than by delay. He is abroad and
he must be served through the United States Consul nearest his home.
Arrangements to appear personally or by counsel are costly and
time-consuming. This could have been the reason for the leisurely pace
/7/ which apparently was the standard procedure for these cases in the
United States District Court in New York in the 1930's when respondent's
father was denaturalized. If service is made at a great distance and
the answering time is comparatively short, the constitutional question
of due process may arise. The federal statute does not specify any time
limit within which the defendant must be served or publication must
begin. The court in its Order for Service by Publication specified that
service be in accordance with Rules 50 and 52, but did not incorporate
in the order the time limit prescribed by Rule 51. Under the
circumstances of this case the lapse of five and one-half months between
the date of the order for publication and the date publication was
commenced did not "trench on any constitutional rights of defendant
(Panos Psalidas) nor involve the jurisdiction of the trial court,' to
borrow from Sunal v. Large, 67 S.Ct. 1588. During this five and a half
month period Panos Psalidas was served by registered mail. At best due
process is a slow ritual. What is termed "an unreasonable delay in
publishing the notice' in the state court decisions, becomes a
reasonable time for the defendant to return to meet the challenge to his
citizenship in a denaturalization proceeding.
The Service representative argued that respondent's present attack on
the 1940 decree of denaturalization is precluded by Rule 60(b) of the
Federal Rules of Civil Procedure. /8/ We have paid particular attention
to the discussion of the application of Rule 60(b) in Title v. United
States, 263 F.2d 28 (9th Cir. 1959), and in United States v. Borchers,
163 F.2d 347 (2d Cir., 1947), cert. den. 332 U.S. 811, and United States
v. Kunz, 163 F.2d 344 (2d Cir., 1947). These cases do not involve the
entry of a denaturalization judgment by default. In each case the
defendant had appeared but failed to prosecute his appeal. These cases
hold that motions to open and vacate do not lie as a substitute for a
deliberately abandoned appeal, and that appellants in effect consented
to the entry of the decrees against them, that their time to appeal had
long since expired, and that the motions, based on alleged newly
discovered evidence and other technicalities, had no merit. Zurini v.
United States, supra, holds that Rule 60(b) of the Federal Rules of
Civil Procedure applied to this proceeding and required that a motion to
vacate a denaturalization judgment be made within a reasonable time,
and, upon certain grounds, within one year.
The Supreme Court in Klapprott v. United States, 355 U.S. 601 (1949),
split on the application of Rule 60(b) to vacate a denaturalization
judgment by default where the judgment was entered without proof of the
charges made. The four decisions stressed the "special circumstances,'
and the majority decision states that Klapprott was as deprived by the
Government of an opportunity to defend himself as if he had "never
received notice of the charges.' There are no "special circumstances' in
the matter now before as were present in Klapprott (war, criminal
prosecution and a long imprisonment).
It seems to us that, only if we were to find the 1940 decree of
denaturalization against Panos Psalidas void for lack of jurisdiction,
would the application of Rule 60(b) become an issue. Believing that the
notice to respondent's father was adequate and complied with the
requirements, and that the decree is, therefore, valid and binding, we
do not reach this question.
Respondent, received personal notice of the petition to revoke his
citizenship, but, because he was absent from the United States and from
the district in which he last had his residence, he believes that he is
entitled also to notice by publication in the manner provided by the
laws of New York for serving absentees. The applicable rules of
practice are set forth above in footnotes 2, 3 and 4.
The New York Rules of Civil Practice and Carmody-Wait, Cyclopedia of
New York Practice, make a clear distinction between substituted service
and service by publication. New York also permits a third form of
service referred to as "service without the state under an order of
publication,' with which we are not concerned here. The Cyclopedia
states, Vol. 3, par. 86, p. 191, "Substituted service may be made only
within the state upon a resident thereof.' Psalides who resided abroad
could not have been served by substituted service. Panos Psalidas was,
in fact, served by publication as well as personally. Volume 3, par.
105, pp. 212-214, describes service by publication as follows:
Service of a summons by publication is a method adopted,
generally speaking, to reach cases where service cannot be
effected either personally within the state or by substitution.
Nonresident persons and, under certain circumstances, residents
who cannot otherwise be reached are thus constructively notified
of the commencement of legal proceedings by the publication of the
summons in a newspaper in accordance with prescribed formalities
for a certain length of time, and the mailing of the summons to
them, or by serving the summons personally on the defendant
without the state.
The prescribed method of service by publication is designed to
afford a reasonable probability that actual notice will reach the
defendant. Notice is directed through several channels in the
reasonable expectation that, through one of the channels, it will
be brought to the attention of the defendant. But the court
acquires jurisdiction to proceed in such case whether the
defendant is actually notified or not.
Where a summons has been served by publication and a defect in
the course of the proceedings has been discovered, the question
arises whether the defect is jurisdictional so that the
proceedings are absolutely void and not amendable, or whether the
defect is a mere irregularity which may be cured. In order for
the court to acquire jurisdiction, there must be a substantial
compliance with the statute. Notice to the defendant of the
pendency of the action given in a manner substantially different
from that prescribed by the legislature is nugatory. If a defect
is jurisdictional, it is fatal * * *
The court may disregard and cure defects and irregularities
"not being against the right and justice of the matter.' And so
the courts may disregard unsubstantial defects even in the service
of process of (sic) publication.
There was an irregularity in service under the New York Rules, as
complained by respondent. It is provided by the New York
Rules that the first publication of a summons must be made within
three months after the order of publication is granted. (For R.C.P. 51
see footnote 4.) As pointed out above, the order of the court on
December 7, 1939, for service by publication made no mention of Rule 51.
Respondent refers to New York cases holding that failure to comply
strictly with the statutory requirements for publication rendered
proceedings ineffective and that improper mailing is jurisdictional, and
not an irregularity. The New York cases on substituted service have no
application here. Respondent relies on Korn v. Lipman, 201 N. Y. 404,
94 N.E. 861 (1911), as the leading New York case concerning substituted
service. Substituted service was also involved in Robinson v. Five One
Five Associates Corp., 180 Misc. 906, 45 N.Y.S.2d 20 (1943), cited by
respondent.
We have examined the numerous New York cases and believe the leading
cases are Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 163 N.E.
124, cert. den. 49 S.Ct. 82, 278 U.S. 647, and Mishkind-Feinberg Realty
Co., v. Sidorsky, 189 N.Y. 402, 82 N.E. 448. In Valz v. Sheepshead Bay
Bungalow Corp., the court found that there was no willful failure to
comply with the order, and that the error did not deprive the defendants
of the opportunity to appear and defend. The lower court pointed out,
223 N.Y.S. 329, 337, that a case where the defendant did not know of the
pendency of the action should not be followed as authority. That there
is a close question is indicated by the fact that the Court of Appeals,
249 N.Y. 122, sustained the decision of the lower court by a vote of
four to three. The majority hold that the defendants' failure to appear
"was not occasioned, or contributed to, by the defect in publication,'
and that they received formal notice of their right to defend, and they
chose not to assert any defense. Counsel maintains that Sheepshead Bay
is applicable only to a situation where the error in publication was
corrected by a nunc pro tunc order. We think the holding is of broader
application and that the rule that the defect may be disregarded or
cured in the court's discretion where the parties have not been
prejudiced is consistent with the holdings in the federal cases of
Cardillo and Antonacci, supra.
Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N.Y. 402, 406, N.E.
448, 449, is a persuasive New York authority wherein the court stated:
The Supreme Court has very broad powers, either before or after
judgment in furtherance of justice to amend any process, pleading
or proceeding. Section 723. It would be difficult to use more
comprehensive language than is used in that section. The
correction of the clerical error in the order was not harmful to
Rabinovitch, but was in furtherance of justice. To deny power in
the court in this case to make such an order would subordinate
substance to form.
As with the federal cases, we believe the New York cases which
developed from wartime situations should not be considered binding
precedents. For example, respondent cites Risley v. Phenix Bank, 83 N.
Y. 318 (Ct. App. N.Y., 1880), which related to the confiscation of
property belonging to a South Carolina bank, but which was deposited in
a bank in New York. This decision in no way relates to the matter now
before us. Robinson v. Five One Five Associates, supra, concerns a
defendant whose whereabouts was unknown, because he was serving in the
armed forces in World War II. The court stated that clearly he did not
know of the action and could not know, and that the Civil Procedure Act
was unsuited to wartime conditions.
Respondent cites Malone v. Citarella, 182 N.Y.S.2d 200 (S.Ct. App.
Div. 1959), wherein a judgment obtained in 1940 was found void in 1959
for serious procedural irregularities. The judgment was entered by a
clerk with no authority and was a nullity. Malone v. Citarella differs
materially from the instant case which involves both actual notice and
what the courts refer to as "substantial compliance.'
The state court decisions depend on the individual facts and the
applicable statute. For example, Schulte Real Estate Co., Inc., v.
Pirkig, 78 N.Y.S.2d 815 (S.Ct. N.Y. City, 1948), points out the
difference between Rule 50, Rules of Civil Practice of 1933, regarding
service by publication, and paragraph 231, Civil Practice Act, 1933,
providing for substituted service, and the case involves the latter
rule. Counsel cites In re Manley's Estate, 226 N.Y.S.2d 21 (Surrog.
Ct. N.Y. City, 1962), which is not pertinent for our purposes. It
involved an estate and probate controversy, wherein there were false
statements of essential facts, and the executrix failed to notify some
of the distributees under most questionable circumstances.
Counsel cites Mojarriets v. Saenz, 80 N.Y. 547 (N.Y. Ct. Apps.,
1880), where publication of a summons was not made within 30 days after
an attachment of property, and the court held that by that omission the
attachment fell. Ferguson v. Crawford, 70 N.Y. 253 (N.Y. Ct. Apps.,
1887) concerned a foreclosure of a mortgage where the defendant was
alleged to have appeared through his attorney, whereas, in fact, neither
he nor his attorney was served or appeared, but the appearance by the
attorney and consent to entry of a judgment was by forgery. The other
New York cases cited also relate to attachments of property, and orders
of foreclosure and for damages, and are not pertinent.
As pointed out above, there are purposes for the time limits in the
state rules and statutes authorizing substituted service or service by
publication in state cases. These purposes are absent in a
denaturalization proceeding. The state courts recite (see United States
v. Sotis, supra) that there is no presumption of continued absence from
customary places, and for this reason service by publication must be
accomplished within a given, and usually short, period of time. In
denaturalization proceedings there is an assumption of continued absence
from the country, and for this reason the state decisions requiring
prompt publication deal with the situation in reverse. A policy of
delayed publication in a situation where the party has absented himself
in a foreign country for an extended period is a practical and sensible
policy consonant with due process.
Respondent's father, Panos Psalidas, received notice by registered
mail that the United States sought cancellation of his citizenship. The
order of publication of the United States District Court required
compliance with Rules 50 and 52, but made no provision for compliance
with Rule 51 which provided that publication commence within three
months of the date of the order. We conclude that if there was a defect
in the publication of this notice it was an irregularity rather than a
jurisdictional defect, and it was cured when notice was given to
respondent by registered mail. The notice to him was adequate both
under the federal statutes and under the laws of New York, because it
served reasonably to inform him of the legal steps which were being
taken against him and afforded him an opportunity to appear and to
defend his citizenship.
A few decisions have permitted attacks on denaturalization decrees
for procedural errors, even though a period of years has elapsed since
the decree was entered.
We believe that the better view is that a procedural error, in this
case a delay in publication of notice, not affecting the rights of the
parties should be disregarded.
Respondent's complaint about the time of mailing to the United States
Consul at Athens, Greece, is not substantial. The Consul knew Psalidas'
whereabouts and relayed the notice to him. This constituted the best
possible method of serving the defendant.
There is no contention that, had Panos Psalidas been given notice in
any manner different from that employed, he would have defended the
action. Having received adequate notice, he was under obligation to
respond within a reasonable period to protect his rights.
This case differs from Matter of C , 6 I. & N. Dec. 366, in that C
had only 29 days' notice between the time the Government petitioned to
cancel his citizenship and the date of the decree of cancellation, and
we held that this was not sufficient notice under either the federal
statute (giving 60 days) or the Illinois law (giving 30 days). The
complaint in the instant case is that too long a period elapsed between
the order of publication and the date publication commenced. The
defendant in a denaturalization proceeding living abroad may be
prejudiced by receiving too short a period of notice, but he is not
prejudiced by being given a longer period than the statutory minimum.
This case is distinguishable from Matter of C , also in that C signed
a "consent and waiver' form which was used as a basis of jurisdiction.
It has been held that the use of this form constituted a voluntary
relinquishment of citizenship in which there is no implication of fraud,
rather than a cancellation for presumptive fraud. It has been held also
that this "hearsay waiver' and consent constituted a short-cutting of
the procedure provided by Congress which the courts will not approve.
Psalidas refused to sign this consent and waiver form and he, therefore,
was given notice in accordance with the statute.
There is no contention that respondent has any citizenship status
independent of his father. Panos Psalidas was denaturalized by a
binding decision of the United States District Court in New York on
September 28, 1940, and any claim respondent had to United States
citizenship was extinguished at that time.
The appeal must be dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.
(1) Act of June 29, 1906: Sec. 15. That it shall be the duty of the
United States district attorneys for the respective districts or the
Commissioner or Deputy Commissioner of Immigation and Naturalization
upon affidavit showing good cause therefor, to institute proceedings in
any court having jurisdiction to naturalize aliens in the judicial
district in which the naturalized citizen may reside at the time of
bringing the suit, for the purpose of setting aside and canceling the
certificate of citizenship on the ground of frand or on the ground that
such certificate of citizenship was illegally procured. In any such
proceedings the party holding the certificate of citizenship alleged to
have been fraudulently or illegally procured shall have sixty days
personal notice in which to make answer to the petition of the United
States; and if the holder of such certificate be absent from the United
States or from the district in which he last had his residence, such
notice shall be given by publication in the manner provided for the
service of summons by publication or upon absentees by the laws of the
State or the place where such suit is brought.
If any alien who shall have secured a certificate of citizenship
under the provisions of this Act shall, within five years after the
issuance of such certificate, return to the country of his nativity, or
go to any other foreign country, and take permanent residence therein,
it shall be considered prima facie evidence of a lack of intention on
the part of such alien to become a permanent citizen of the United
States at the time of filing his application for citizenship, and, in
the absence of countervailing evidence, it shall be sufficient in the
proper proceeding to authorize the cancelation of his certificate of
citizenship as fraudulent, and the diplomatic and consular officers of
the United States in foreign countries shall from time to time, through
the Department of State, furnish the Department of Justice with the
names of those within their respective jurisdictions who have such
certificates of citizenship and who have taken permanent residence in
the country of their nativity, or in any other foreign country, and such
statements, duly certified, shall be admissible in evidence in all
courts in proceedings a cancel certificates of citizenship.
(2) The Nationality Act of 1940, Section 338(d), 8 USCA 738(d), made
a distinction between cancellation for actual fraud and cancellation for
presumptive fraud, but this change came too late to be of aid to
respondent. Battaglino v. Marshall, 172 F.2d 979 (2d Cir. 1949); Manha
v. Brownell, 146 F.Supp. 411 (N.D. Cal. 1956).
(3) Rule 50. Order for service of summons by publication; contents.
The order for service of a summons by publication must direct that such
service be made by publication thereof in two newspapers, in the English
language, designated in the order as most likely to give notice to the
defendant to be served, for a specified time, not less than once in each
of six successive weeks. It must also contain either a direction that
on or before the day of the first publication the plaintiff deposit in a
post-office, or in any post-office box regularly maintained by the
government of the United States, one or more sets of copies of the
summons, complaint and order, and of the notice required by rule
fifty-two, each set properly inclosed in a postpaid wrapper addressed to
the defendant to be served, and if the defendant be an infant, addressed
to his father, mother or guardian or a person having the care or control
of him or with whom he resides at a place specified in the order; or a
statement that the court or judge, being satisfied by the affidavits on
which the order was granted that with reasonable diligence the plaintiff
cannot ascertain a place or places where such defendant, or any such
person, probably would receive matter transmitted through the
post-office, dispenses with the deposit of any papers therein . . .
(4) Rule 51. Time of publication; when service complete. The first
publication of a summons in each newspaper designated in the order
therefor, must be made within three months after the order is granted.
For the purpose of reckoning the time within which the defendant must
appear or answer, service by publication is complete on the forty-second
day after the day of first publication.
(5) Rule 52. Papers to be filed on service by publication or without
the state; notice to defendant. If service be made by publication, or
without the state in lieu thereof, the summons, complaint and order and
the papers on which the order was made must be filed with the clerk on
or before the day of the first publication or the day of such personal
service.
(6) Rule 4. Process
* * * * * * *
(d) Summons: Personal Service * * *
(7) Upon a defendant * * * is also sufficient if the summons and
complaint are served in the manner prescribed by any statute of the
United States or in the manner prescribed by the law of the state in
which the service is made for the service of summons or other like
process upon any such defendant in an action brought in the courts of
general jurisdiction of that state.
(7) Exhibit 3: Memorandum to Commissioner of Immigration and
Naturalization from Assistant District Director, New York, October 23,
1939, states, "This case is being placed on a call-up for one year.'
(8) Rule 60(b). Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, etc. On motion and upon such terms as are
just, the court may relieve a party or his legal representative from a
final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying
relief from the operation of the judgment. The motion shall be made
within a reasonable time, and for reasons (1), (2), and (3) not more
than one year after the judgment, order, or proceeding was entered or
taken. A motion under this subdivision (b) does not affect the finality
of a judgment or suspend its operation. This rule does not limit the
power of a court to entertain an independent action to relieve a party
from a judgment, order, or proceeding, or to grant relief to a defendant
not actually personally notified as provided in Title 23, U.S.C.,
Section 1655, or to set aside a judgment for fraud upon the court.
Writs of coram nobis, coran vobis, audita querela, and bills of review
and bills in the nature of a bill of review, are abolished, and the
procedure for obtaining any relief from a judgment shall be by motion as
prescribed in these rules or by an independent action. As amended Dec.
27, 1946, and Dec. 29, 1948, effective Oct. 20, 1949.
Since remission in full of $500 penalty imposed under section 239, Immigration and Nationality Act, is not limited to emergent circumstances of 8 CFR 239.2(d), and since section 239 specifically provides that the penalty incurred for violation of any regulation made thereunder may be remitted or mitigated, penalty of $500 incurred under section 239 of the Act for failure of pilot to present himself and passenger for inspection is mitigated to extent of a remaining $25 penalty when both are United States citizens returning from a bona fide business trip in Mexico, bringing no merchandise, and evidence establishes violation was unintentional and pilot acted in good faith throughout.
IN RE: CESSNA AIRCRAFT, Model 172, No. "N-2476-U' which arrived at
Lindbergh Airfield, San Diego, California, from Mexico on September 11,
1963. Persons involved: James D. Ellis, Pilot; and John Thomsen,
Esquire, passenger.
This appeal is directed to an administrative penalty of $400 ($500
mitigated to the extent of $100), which the District Director has
ordered imposed on the aircraft's pilot for "failure to present the
aircraft, yourself, and one passenger for inspection by an immigration
officer as required by 8 CFR 239.2(c).'
This flight involved the return portion of a Mexican business trip by
the two persons named above, both United States citizens, who brought
back no merchandise. At the time of landing, as had been the case
during the entire return trip from Mexico, the pilot and his passenger
were engrossed in a discussion of the business problem which had caused
them to make the flight. They also had not eaten for several hours and
were hungry. Accordingly, the pilot forgot about the inspection
requirements, taxied the aircraft to that part of the airfield used by
the company from whom he had hired the plane, parked it there, and
proceeded to a restaurant in San Diego with his passenger to continue
their business discussion. While dining, the pilot remembered about
inspection and, with his passenger, promptly returned to the airport.
He reported to the Government officer on duty, an employee of the
Department of Agriculture, who notified an immigration officer. The
latter requested the pilot to report to him the following morning, which
he did, accompanied by his passenger, an attorney in San Diego.
The statute authorizes the Attorney General to promulgate regulations
setting forth, inter alia, reasonable requirements for the inspection of
arriving aircraft, and passengers and/or crew thereof. Pursuant to this
statutory authority, the Attorney General has promulgated 8 CFR
239.2(c), which has the force and effect of law. In substance, that
provision of the regulations prohibits the discharge or departure of any
passenger or crewman from the aircraft without permission from an
immigration officer, under pain of a $500 penalty.
The foregoing facts of record establish that we are confronted here
with precisely such a situation as is contemplated by the regulation.
Accordingly, liability to the fine has been incurred. This is not
seriously challenged.
The District Director has ruled that remission of the fine provided
for in section 239 of the statute is permissible only "if the violation
was occasioned by emergency or forced landing of the aircraft.' In other
words, the District Director interprets the statute as permitting the
fine to be forgiven in full only where a violation of 8 CFR-239.2( d) is
involved. This, however, is not correct.
Section 239 contains the specific provision that the $500 penalty
incurred for a violation of any regulation made thereunder may be
remitted, in accordance with such proceedings as the Attorney General
shall prescribe. Clearly, therefore, the District Director's ruling has
the effect of having the regulation exceed the scope of its statutory
authority. To this extent, therefore, his decision is overruled.
Despite the fact that such action is permissible here, we do not
think that remission of the fine is merited. The pilot it admittedly
experienced in international flights such as this one. We think a
minimum penalty should be permitted to stand to keep him mindful of the
inspection requirements in the future.
The Service report of investigation sets forth that the employee of
the Department of Agriculture on duty at the airport telephonically
informed an immigration officer of the aircraft's arrival and the fact
that it had not been inspected. It also reflects that the immigration
officer to whom this was made known then called the pilot's wife and
requested her to have her husband report to the Government office the
following morning (which he did). It then intimates that the
Agriculture Department employee was under the impression that the pilot
returned for inspection that afternoon as the result of a telephone
conversation with his wife putting him on notice of the fact that the
immigration officer was looking for him. The testimony of the pilot and
his passenger, however, negatives this adverse inference. The District
Director appears to have accepted their statements in this respect. We
agree with said official that the evidence of record shows that the
pilot returned to report for inspection of his own volition.
The District Director has stressed that the pilot made a statement
that he had not flown a private aircraft into the United States from a
foreign country within the past five years whereas, in fact, aircraft
arrival records at the airport involved reflect an arrival by the pilot
from Mexico on August 15, 1963. The pilot, on the other hand, insists
that he made no such statement and that the immigration officer who
attributed it to him confused his statement with that of his passenger
who, according to the pilot, stated to the immigration officer that he
was not mindful of the requirement of reporting because he had not used
a private aircraft in the past five years, relying, instead, on
commercial aircraft. The passenger in question, an attorney, has
corroborated the pilot's claims in this respect. Accordingly, and in
view of the following considerations, we discount this as an adverse
factor.
The pilot and his passenger are both citizens of the United States.
They brought back no merchandise from Mexico with them. Their trip was
for bona fide business purposes. We are satisfied that the evidence of
record establishes that the violation was unintentional on the pilot's
part. We are also convinced that he became aware of this violation
without outside influence, and that he thereafter made every reasonable
effort to comply with the law and regulations, to wit: he returned to
the airport the same afternoon to report; and he complied with the
immigration officer's request to report again the following morning. We
feel that the evidence shows that the operator of the aircraft was
acting in good faith throughout. The operator apparently has no adverse
immigation record despite several such flights in the past. It appears
that the parties involved are reputable businessmen respected in their
communities. The pilot was acting in that capacity as a matter of
convenience for his passenger, and not for any immediate financial gain
for his services as such. Under these circumstances, we think the
penalty should be reduced to the bare minimum.
ORDER: It is ordered that the District Director's decision of
January 5, 1965, be modified to provide for $375 additional mitigation,
and that as so modified the decision of said official be and the same is
hereby affirmed. The penalty permitted to stand is $25.
A tailor who has had at least 5 years' journeyman experience in all
of the hand and/or machine sewing operations necessary to make an entire
garment, such as a suit or overcoat, is accorded first preference quota
classification under section 203(a)(1), Immigration and Nationality Act,
as amended, regardless of his age at the time he acquired such
experience. Matter of S , 9 I. & N. Dec. 299, overruled.
On December 11, 1964 the Regional Commissioner, Southeast Region,
Richmond, Virginia, affirmed the decision of the District Director,
Philadelphia, Pennsylvania, who had denied the visa petition to accord
the beneficiary first preference classification under section 203(a)(
1)(A) of the Immigration and Nationality Act. Thereafter, the Regional
Commissioner reopened the petition on his own motion and, on February
11, 1965, entered an order withdrawing his decision of December 11, 1964
and approving the petition. Since the Regional Commissioner's order of
February 11, 1965 was contrary to the decision of July 10, 1961 by the
Assistant Commissioner, Central Office, in the Matter of S , 9 I. & N.
Dec. 299, the Regional Commissioner certified his order of February 11,
1965 to this office.
The beneficiary is a native and citizen of Italy born November 8,
1937. From 1952 to 1956 he served his apprenticeship as a tailor in
Italy. Except during the period July 12, 1959 to December 5, 1960 when
he was performing military duty in the Armed Forces of Italy, the
beneficiary was continuously employed in his native country as a
journeyman tailor from 1956 until August 1963 when he came to the United
States. At the time of the adjudication of the petition by the District
Director, the beneficiary had over five years' journeyman experience,
but only about 48 months of which was acquired after his 21st birthday.
The District Director had denied the petition on the ground that the
beneficiary did not have five years' journeyman experience as a tailor,
acquired after the age of 21 years, as required by the Matter of S ,
supra. The Matter of S recited that, after consultation with
representatives of labor and industry the Service had concluded than an
aggregate of five years' actual working experience as a journeyman
tailor in the performance of all hand and/or machine sewing operations
to make an entire garment, such as a suit or overcoat, was necessary for
an individual to be recognized as a skilled tailor. Based upon Service
experience prior to July 10, 1961 indicating that many young tailors
were deserting the tailoring field after having gained admission to the
United States as first preference quota immigrants, it was further
decided in the Matter of S that the five years' journeyman experience
must have been acquired after the beneficiary's 21st birthday in order
to qualify for first preference classification.
Upon further consideration, it has now been concluded that a tailor
who has had at least five years' journeyman experience in all of the
hand and/or machine sewing operations necessary to make an entire
garment, such as a suit or overcoat is qualified as a skilled tailor,
regardless of his age at the time he acquired such experience.
Therefore, the decision in the Matter of S , 9 I. & N. Dec. 299, is
hereby overruled.
The record establishes that the beneficiary has had the requisite
journeyman experience to qualify as a skilled tailor. The petitioner
has established an urgent need for the beneficiary's services in that
capacity.
The Regional Commissioner's decision of February 11, 1965 approving
the petition is affirmed.
ORDER: It is ordered that the petition be approved.
Two visa petitions having been previously approved for petitioner in
behalf of eligible orphans, as defined in section 101(b)(1)(F),
Immigration and Nationality Act, as amended, notwithstanding one of the
orphans died subsequent to entry, section 205(c) of the Act precludes
approval of a third visa petition by same petitioner for an eligible
orphan, absent the factor of prevention of separation of brothers and
sisters.
Discussion: This case is before me on appeal from the District
Director, San Francisco, who denied the petition on November 20, 1964 as
follows:
Your petition has been denied. You have previously filed visa
petitions under section 205(b) of the Immigration and Nationality
Act in behalf of two orphans who were subsequently admitted to the
United States. Section 205(c) of the Immigration and Nationality
Act states "not more than two such petitions may be approved for
one petitioner unless necessary to prevent the separation of
brothers and sisters'.
The petitioner and his wife, both adult citizens of the United
States, reside in Chico, California where the petitioner is employed as
a watchmaker and his wife as a school teacher. They live in a modern
home in Chico. Their combined income exceeds $10,000.00 yearly. They
have three children of their own ranging in age from 12 to 16 years.
Their ability to properly support and maintain the orphan for whom
petitioned is not in question.
The petitioner had previously petitioned for two orphans who were
subsequently admitted to the United States on the basis of two
separately approved petitions as eligible orphans. One of these orphans
is presently residing with the petitioner. This orphan is an
18-month-old Korean girl born May 23, 1963 who was admitted to the
United States in the company of the petitioner as his adopted daughter
on November 30, 1963 at Anchorage, Alaska.
Subsequently, a second visa petition was filed by the petitioner and
approved for a second Korean orphan girl born May 24, 1963. This child
was admitted on the basis of the approved petition on May 1, 1964 at
Seattle, Washington. A death certificate has been presented to show
that this second adopted orphan died on June 5, 1964 of pneumatic
bronchitis in Chico, California.
The petitioner filed a petition for a third child, the beneficiary of
the petition now before me on appeal, on October 30, 1964.
Section 205(c) of the Immigration and Nationality Act, as amended,
provides in part that: "Not more than two such petitions may be
approved for one petitioner in behalf of a child defined in section
101(b)(1)(E) or (F) unless necessary to prevent the separation of
brothers and sisters'. Section 101(b)(1)(F) of the Immigration and
Nationality Act defines a child as: "A child who is an eligible orphan
adopted abroad by a United States citizen and spouse or coming to the
United States for adoption by a United States citizen and spouse'. The
beneficiary falls within this definition, but is not a brother or sister
of the previously adopted orphans. The statute precludes the granting
of the instant petition.
In the decision in Matter of P , 9 I. & N. Dec. 750, decided by the
Board June 21, 1962 it is stated: "We, therefore, construe the context
of section 205(c) of the Immigration and Nationality Act to mean simply
that a limitation of two is placed on the number of visa petitions that
may be approved by the Attorney General for one petitioner in behalf of
a child adopted, or an eligible orphan child, as those terms are defined
in section 101(b)(1)(E) and (F) of the Act. We find that Congress has,
in current legislation, provided a visa petition procedure for eligible
orphan children by reason of relationship; and that only orphan
children who are the beneficiaries of visa petitions come within the
provisions of section 205(c) to limit two orphan children to each
petitioner. Any other interpretation or construction of the language in
the statute, it seems to us, would be reading meaning into it that is
not there'.
Two visa petitions for eligible orphans have previously been approved
for the petitioner in the instant case. The approval of a third visa
petition for an eligible orphan by the same petitioner is statutorily
prohibited. The decision of the District Director was proper. The
appeal must be dismissed.
ORDER: It is ordered that the decision of the District Director be
affirmed and the appeal is dismissed.
"Urgent need' within the contemplation of section 203(a)(1),
Immigration and Nationality Act, as amended, has not been established
where beneficiary's proposed entry into the United States is to become a
partner in a plastics factory and no action has been initiated to
establish the factory.
Discussion: The petitioner, the Berkeley Luggage Company (located at
Berkeley, California), is engaged in the retail sales of luggage, small
leather goods, handbags, wallets, and gift items. Besides the
petitioner, Mr. Rosenzweig, the company employs three persons: two
being sales personnel and one as a stock and monogramming employee. The
company was established five years ago and is expected to gross $70,000
this year.
Services of the beneficiary are desired for the purpose of
establishing and directing a factory to engage in the manufacturing of
plastic items, particularly brief cases, binders, underarm cases, and
handbags made of plastic. If things work out, according to the
petitioner, the beneficiary will become his partner. United States
Employment clearance order submitted with the petition lists the
education and experience requirement as follows: "Ability to direct one
or more persons engaged in plastics manufacturing. Minimum five years'
experience in designing, molding and finishing plastic luggage,
including bags, brief cases, purses, wallets.'
The beneficiary is a 50-year-old married male, a native of Hungary
and a citizen of Chile, now residing in Montreal, Canada, where
according to the belief of the petitioner, he is employed by Or-Plast,
Ltd., at Montreal, Canada. The petitioner believes the beneficiary is
the owner of Or-Plast, Ltd. If the beneficiary is admitted into the
United States, the petitioner believes the beneficiary may bring with
him a certain amount of equipment that would be necessary in
manufacturing plastics at Berkeley, California. The beneficiary is the
uncle of the petitioner's wife.
Evidence has been presented that the beneficiary is a skillful
technician in plastics and has been employed in that field in South
America for over 14 years.
In a sworn statement before an officer of this Service at San
Francisco, California on November 6, 1964, the petitioner indicated the
beneficiary will set up a factory at Berkeley, California, equip it and
operate the factory and supervise the employees therein. He will order
the supplies, equipment, maintain records, design the products with the
petitioner's assistance, will order the molds for the products, such
molds being made according to the specifications of the design of the
petitioner and beneficiary. The petitioner stated that he would
guarantee financial responsibility for the enterprise and the setting up
of the sales organization. He further stated that "if things work out,
he will be my partner'. The petitioner intends to invest $10,000 or
$15,000 or perhaps more in the enterprise.
The petitioner has not, as yet, leased property for his anticipated
venture. He stated in his sworn statement of November 6, 1964: "I will
lease this property for this venture, sir, and put up the money, when
this man is here in the United States, here in Berkeley.'
In a letter dated at Montreal, Canada on March 20, 1964 addressed to
"Dear Robert' (apparently the petitioner), the beneficiary stated:
"Referring to our recent correspondence and long distance telephone
calls in regard to starting a new plastics factory in California,' * * *
"I am quite able to make the financial investment which you require to
match the money which you will invest. We could form a partnership and
start a factory in Berkeley. If it pleases you, I could dispose of my
machinery here in the East and we could purchase more modern machinery
and equipment when I arrive to (sic) California. Have you leased the
needed factory space as yet? It would be wiser, Robert, if you wait for
my arrival with my family.'
From the record, it is evident that the purpose of the beneficiary's
proposed entry into the United States is to become a partner in a
plastics factory. No action has been taken by the petitioner to
initiate proceedings to establish the factory, as he is waiting for the
beneficiary to enter the United States. It is obvious that there is no
urgent need for the beneficiary's services at this time, which is a
requirement under section 203(a)(1) of the Immigration and Nationality
Act, if the petition is to be approved.
ORDER: It is ordered that the petition be denied, as it has not been
established that the services of the beneficiary are needed urgently in
the United States as required by section 203(a)(1) of the Immigration
and Nationality Act.
Beneficiaries, who are entertainers, comedian ventriloquist and
acrobatic dancer, are ineligible for classification under section 101(
a)(15)(H)(i), Immigration and Nationality Act, as aliens of
distinguished merit and ability since the evidence does not establish
that they have played starring or leading roles or have been prominently
featured by name as entertainers, or that they have been acknowledged as
eminent by recognized critics or other experts in the field of
entertainment.
This matter is before the Regional Commissioner on an appeal from the
decision of the District Director denying the petition to accord the
beneficiaries nonimmigrant status under section 101(a)(15)(H)(i) of the
Immigration and Nationality Act.
The petitioner is a theatrical agent and producer who seeks to import
the beneficiaries temporarily for bookings through his office as
entertainers. The beneficiaries are natives and citizens of France.
Their address is given as Montreal, Canada. The male alien, aged 52, is
described as an "international comedian ventriloquist (the man with the
speaking hand)'. His wife assists him and is also a ballet dancer.
To qualify for classification under this section of the law, these
entertainers must be persons of distinguished merit and ability, and
further, must be coming to the United States to perform services
requiring such merit and ability.
The evidence submitted as to the personal qualifications of the
beneficiaries consists of
(1) Publicity release of Bob Bellamy and Company, vocal
impressionist, ventriloquist, gags and comedy.
(2) Publicity release of Betty Gromer, "acrobatic dancer in
Spanish style, the only artist in Europe performing somersaults
while playing castanets;'
(3) Photographs, and
(4) Clippings from unnamed and undated publications showing
appearances of the couple as entertainers at cafes, restaurants, a
music hall, hotels, and civic celebrations.
These documents do not establish that the beneficiaries have played
starring or leading roles, that they have been prominently featured by
name as entertainers, nor that they have been acknowledged as eminent by
recognized critics or other experts in the field of entertainment. It
is concluded that the petitioner has failed to establish that the
beneficiaries are eligible for classification under section 101(a)(15)(
H)(i) as persons of distinguished merit and ability. It is unnecessary,
therefore, to consider whether the engagements obtained or to be
obtained by the petitioner in their behalf require persons of such merit
and ability. The appeal must be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.
Petition, by a jobber of periodicals of scientific and scholarly
nature in various languages, to accord beneficiary classification under
section 101(a)(15)(H)(iii), Immigration and Nationality Act, as an
industrial trainee for a six-month period during which he will receive a
salary of $100 per week, is denied since the petition fails to set forth
a training program, the specific position, duties, or skills in which
beneficiary is to be trained, and the substantial salary beneficiary
will receive suggests that productive employment, which may displace a
United States citizen, will be involved.
This matter comes before the Regional Commissioner as an appeal from
the decision of the District Director denying the petitioner's request
for classification of the beneficiary as a nonimmigrant trainee under
section 101(a)(15)(H)(iii) of the Immigration and Nationality Act. The
petitioner, a jobber of periodicals of scientific and scholarly nature
in various languages, desires to accord the beneficiary training for a
period of six months and will pay him a salary of $100 per week plus
time and one half for overtime.
Section 214.2(h)(2)(iii), Title 8 of the Code of Federal Regulations,
provides that such trainee status cannot be granted unless the required
petition is accompanied by a statement describing the type of training
to be given and the position or duties for which the beneficiary is to
be trained. It further provides that such trainee may not engage in
productive employment if such employment will displace a United States
resident.
It is believed that this petition, even when supplemented by the
brief submitted on appeal, fails to meet the requirement set forth
above. No training program is set forth; the specific skills in which
the beneficiary is to be trained are not described; the specific
position or duties which the beneficiary will perform upon conclusion of
the program is not designated; and the substantial salary which he will
receive suggests that productive employment, which may displace a United
States citizen, will be involved. It is concluded that the beneficiary
is not properly classifiable as a nonimmigrant trainee and the appeal
will therefore be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.
The retention provisions of section 301(b), Immigration and
Nationality Act, requiring continuous physical presence in the United
States for at least 5 years between the ages of 14 and 28, are fully
satisfied by a combination of constructive and actual physical presence
in the United States for the requisite period prior to age 28, no
physical presence beyond that age being obligatory under said section.
Discussion: The subject has applied for a certificate of
citizenship, claiming to have acquired citizenship at birth in Canada on
July 25, 1935, through a citizen father and an alien mother.
The pertinent statute in effect when the applicant was born was
section 1993, Revised Statutes, as amended by the Act of May 24, 1934,
providing that any child hereafter born out of the limits and
jurisdiction of the United States, whose father or mother, or both, at
the time of the birth of such child, is a citizen of the United States,
is declared to be a citizen of the United States, but the right of
citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the United
States previous to the birth of such child. In cases where one of the
parents is an alien, the right of citizenship shall not descend unless
the child comes to the United States and resides therein for at least
five years continuously immediately previous to his eighteenth birthday.
The latter part of this section concerning retention of citizenship
was changed by the provision of section 201(g) of the Nationality Act of
1940 (54 Stat. 1138 39), effective January 13, 1941, and these in turn
were affected by section 301(b) and (c) of the Immigration and
Nationality Act, effective December 24, 1952 (8 U.S.C. 1401), quoted
below:
Any person who is a national and citizen of the United States
at birth under paragraph (7) of subsection (a), shall lose his
nationality and citizenship unless he shall come to the United
States prior to attaining the age of twenty-three years and shall
immediately following any such coming be continuously physically
present in the United States for at least five years: Provided,
That such physical presence follows the attainment of the age of
fourteen years and precedes the age of twenty-eight years.
Subsection (b) shall apply to a person born abroad subsequent
to May 24, 1934: Provided, however, That nothing contained in
this subsection shall be construed to alter or affect the
citizenship of any person born abroad subsequent to May 24, 1934,
who, prior to the effective date of the Act, has taken up a
residence in the United States before attaining the age of sixteen
years, and thereafter, whether before or after the effective date
of this Act, complies or shall comply with the residence
requirement for retention of citizenship specified in subsection
(g) and (h) of section 201 of the Nationality Act of 1940, as
amended.
The applicant's father was born in Woonsocket, Rhode Island, on July
23, 1909. He was taken to Canada by his parents in 1915. The
applicant's parents were married in Canada on April 6, 1932, and he is
the legitimate issue of that marriage. His mother was a native and
still is a citizen of Canada.
The father has testified that he has voted in Canada since 1945. The
record indicates, however, that he was a citizen of the United States on
the date of applicant's birth. The applicant testified that he,
himself, also voted in Canada in 1954. This was before he knew that he
might be a citizen of the United States due to his father's birth in the
United States. It is the Service position that a United States citizen
who performs an act of an expatriating nature without knowledge that he
had ever acquired United States citizenship does not thereby expatriate
himself (Rogers v. Patokoski, 271 F.2d 858 (1959); Matter of C A , 9 I.
& N. Dec. 482 (1961); Matter of C S , 9 I. & N. Dec. 670 (1962)).
The applicant had no knowledge of his possible claim to citizenship
until he applied for an immigrant visa at the American Consulate in
Montreal, Canada, on February 26, 1963. On the basis of the Attorney
General's opinion of May 24, 1962, Matter of C S (supra), it was
concluded that he might properly be issued limited documentation as a
United States citizen valid for a period to enable him to proceed to the
United States. The record discloses that the applicant did enter the
United States on March 23, 1963, in possession of a United States
citizen's identity card. At that time he was twenty-seven years of age
and had never previously been in the United States.
It has been held in Matter of Yanez-Carrillo, (Int. Dec. No. 1302,
August 29, 1963) that the retention requirement of section 301(b),
Immigration and Nationality Act, requiring continuous physical presence
in the United States for at least five years between the ages of
fourteen and twenty-eight, does not operate to deprive an individual of
United States citizenship until he has had a reasonable opportunity to
come to the United States as a United States citizen after learning of
such claim to citizenship. It is concluded that the applicant's arrival
was timely.
Subsequent to the applicant's initial entry on March 23, 1963, he has
returned to Canada on several occasions. He went to Canada on August 3,
1963, and returned to the United States on August 5, 1963; for three
days in November 1963; two weeks in December 1963 and from March 28,
1964, to March 31, 1964. These trips were after the applicant's
twenty-eighth birthday.
Constructive residence and physical presence in the United States are
concepts regularly given effect in the field of immigration and
nationality law. Thus, in the Matter of L B D , (4 I. & N. Dec. 639
(1952)), in considering the question of whether United States
citizenship was retained under a statute which required the child to
take up residence in the United States before sixteen years of age, the
Attorney General ruled that the retention requirements were satisfied
although factually residence was not taken up until after that age
because of conditions beyond the control of the child.
In two other cases (Matter of S , 8 I. & N. Dec. 221, and Matter of S
, 8 I. & N. Dec. 226 (1958)), the Board of Immigration Appeals had under
consideration section 301(b), the identical section of law involved in
the present case. In those two cases, factually the coming to the
United States and consequently the beginning of physical presence in
this country were not in sufficient time to permit a full five-years'
presence to accumulate before twenty-eight years of age. The Board,
nevertheless, concluded that the applicants were to be regarded as
having constructively complied with the provisions of section 301(b).
Similarly, in Matter of S , Int. Dec. No. 1252 (1962), subject's absence
abroad in the United States Armed Forces during the period of physical
presence required by section 301(b) was regarded as constructive
physical presence in the United States within the meaning of that
section. The conclusions in these cases were based on the fact that
failure to comply was due to circumstances beyond the control of the
persons involved. In such cases it is equitable not to penalize
individuals for circumstances beyond their control. Such a situation
would also exist when the failure to come to the United States is due to
ignorance of a claim to citizenship. In the instant case, it is
concluded that the concept of constructive physical presence is also
applicable in accordance with the principle of law that no conduct
results in expatriation unless it is engaged in voluntarily (Nishikawa
v. Dulles, 356 U.S. 129 (1958)).
Although the above cases establish the principle of constructive
physical presence, and regard the commencement thereof after age 23 as
timely under appropriate circumstances, they are silent with respect to
the physical presence requirement subsequent to such a person's arrival
in this country. It remains, therefore, to be determined how such
retention provisions apply to one who is regarded as having been
constructively physically present for a portion of the required
five-year period.
The word "constructive' has been defined as "That which is
established by the mind of the law in its act of construing facts * * *;
that which has not the character assigned to it in its own essential
nature, but acquires such character in consequence of the way in which
it is regarded by a rule or policy of law; hence, inferred, implied,
made out by legal interpretation.' Black's Law Dictionary, 3rd Ed., p.
413.
In this posture, the applicant is regarded, in law, as having been
physically present in the United States from a date immediately prior to
his 23rd birthday to March 23, 1963, the date upon which he came to the
United States. He was factually physically present from that date until
July 25, 1963, his 28th birthday. Section 301(b) requires only that the
physical presence be between the ages of 14 and 28 years in order that
citizenship may be retained. No obligation beyond the 28th birthday is
imposed. Accordingly, it is concluded that the applicant's constructive
physical presence, coupled with his actual physical presence, amounted
to a full compliance with the retention requirements of section 301(b).
Having fulfilled the requirements of that statute between his 23rd and
28th birthday, he had no further obligation thereunder and was relieved
of any further obligation to retain citizenship.
ORDER: It is ordered that the application for a certificate of
citizenship be and the same is hereby granted.
A conviction under 18 U.S.C. 371 of conspiracy to violate 18 U.S.C. 1546 (false statements in immigrant visa) is not tantamount to a conviction under 18 U.S.C. 1546 within the purview of section 241(a)( 5), Immigration and Nationality Act.
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at entry -- Not nonquota immigrant.
Act of 1952 -- Section 241(a)(5) 8 U.S.C. 1251(a)(5) -- Convicted
under Title 18, U.S.C., section 1546.
Respondent appeals from the order of the special inquiry officer
finding him deportable on the first charge set forth above. The trial
attorney appeals from the order of the special inquiry officer finding
that the respondent was not deportable upon the second charge set forth
above. Both appeals will be dismissed.
Respondent, a 32-year-old married male, a native and citizen of
Spain, entered the United States on March 31, 1956 in transit to Spain;
but failed to depart. On June 16, 1956 he married Milagros Rivera. He
was apprehended by the Service on December 19, 1956 and on December 22
was returned to Spain. His wife filed a visa petition for him in
January 1958; the petition was approved; the respondent entered the
United States on March 16, 1958 with a nonquota visa issued to him as
the husband of an American citizen.
The Service claims that the marriage was one entered into with the
understanding by both parties that it would be one in name only, that it
would not be consummated, and that it would be terminated when it had
served its purpose of securing respondent's admission for permanent
residence. Respondent contends that he married for love, that the
marriage was consummated, that he lived with his wife, and that he left
her only when he found that she had been unfaithful to him. The special
inquiry officer found the parties had not entered into a bona fide
marriage relation.
The Service case is based on the testimony of Milagros Rivera and
prehearing admissions against interest made by respondent. Counsel
attacks Rivera as a person who was untruthful, of questionable character
and whose testimony was induced by fear that she might otherwise be
prosecuted for perjury since her unfavorable testimony was in conflict
with a prehearing statement she had made. He contends that her
testimony, contradicted as it is by that of respondent, a stable person,
who has proven a good husband and provider (he remarried), is not
credible. The conflicting testimony of Rivera has been set forth by the
special inquiry officer and need not be repeated. We find as did the
special inquiry officer that Rivera's testimony is corroborated by
prehearing admissions against interest made by the respondent. We find
that respondent's admissions were neither made under duress nor made to
conform with testimony of Rivera. The information he furnished goes far
beyond hers. We believe that the record adequately supports the first
charge. The respondent's appeal will be dismissed.
Counsel contends the special inquiry officer was unduly influenced by
the fact that the respondent was convicted on a criminal charge in
connection with his marriage. The special inquiry officer stated that
the criminal proceedings were such that the doctrine of collateral
estoppel could not apply to the charge in question. There is no
evidence that he was improperly influenced by the court decision; the
reasons for his findings are fully set forth. There is no reliance upon
the criminal proceeding.
The Service appeal will now be considered. On March 6, 1962,
respondent, along with two others, was indicted for conspiracy to
violate the immigration laws of the United States. The indictment
contained four counts. Respondent was convicted and sentenced on count
one. The count laid under 18 U.S.C. 371 charges that from about May
1956 to May 1959, the respondent and two others conspired to violate 18
U.S.C. 1001 (false statements) and 1546 (false statements in immigration
visa) and to defraud the Government in the exercise of its governmental
function of administering the immigration laws. In pursuance of the
conspiracy five overt acts relating to the respondent's marriage to
Rivera, his obtaining a visa, and his entry with a nonquota visa are set
forth.
Respondent's deportation is sought under the underlined portion of
section 241(a)(5) of the Act (8 U.S.C. 1251(a)(5)); the section
provides for the deportation of an alien who --
has failed to comply with the provisions of section 265 unless
he establishes to the satisfaction of the Attorney General that
such failure was reasonably excusable or was not willful, or has
been convicted under section 266(c) of this title, or under
section 36(c) of the Alien Registration Act, 1940, or has been
convicted of violation or conspiracy to violate any provision of
the Act entitled "An Act to require the registration of certain
persons employed by agencies to disseminate propaganda in the
United States, and for other purposes', approved June 8, 1938, as
amended, or has been convicted under section 1546 of tille 18 of
the United States Code; (Emphasis supplied.)
The special inquiry officer dismissed the charge based on section
241(a)(5) of the Act, finding that the section required a conviction
under 18 U.S.C. 1546 whereas the conviction in the instant case had been
under 18 U.S.C. 371. The special inquiry officer felt that had Congress
who made conviction for a violation of 18 U.S.C. 1546 a ground of
deportability intended to also make conviction for a conspiracy to
violate 18 U.S.C. 1546 a ground of deportation, they would have provided
as they had elsewhere in section 241(a)(5) of the Act for the
deportation of an alien "convicted of violating or conspiracy to
violate' the law in question. The special inquiry officer also pointed
out that in other sections relating to the deportation of aliens,
Congress specified that it was both the conviction of the law and the
conviction of a conspiracy to violate that law that would subject the
alien to liability to deportation (sections 241(a)(11) and (17) of the
Act).
The Service representative contends that Congress intended by means
of section 241(a)(5) of the Act to deport persons guilty of fraud and
misuse of visas and that since reference to the overt acts listed in the
conspiracy count reveals that respondent's conviction was for acts of
fraud and misuse of a visa, respondent should be held deportable under
section 241(a)(5) of the Act. No authority is cited for the contention
that it was the intent of Congress to make liable to deportation by
means of section 241(a)(5) of the Act any person who committed acts of
fraud or misused a visa but had not been convicted under 18 U.S.C. 1546.
The contention must be rejected. The contention is made in face of the
fact that by other provisions of the Act Congress, without requiring a
conviction, provided for the deportation of an alien who was guilty of
fraud or misuse of a visa (sections 212( a)(19), 241(a)(1), 241(c) of
the Act); reliance upon 241(a)(5) of the Act is, therefore, unnecessary
to deport an alien guilty of acts of fraud of the nature present in the
instant case. Furthermore, the contention is made in face of the fact
that Congress made deportability under section 241(a)(5) dependent upon
the existence of a conviction under 18 U.S.C. 1546 and a conviction is
not present in the instant case.
The Service representative conteds that Congressional failure to
provide that conviction for conspiracy to violate 18 U.S.C. 1546, as
well as conviction under the section itself, would make an alien
deportable may well have been due to the fact that Congress, realizing
that in the normal situation the conspirators would be outside the
United States, did not think that a conspiracy charge would be used. No
historical basis for the Service belief is given. If it is a fact that
Congress considered making conviction for a conspiracy a ground of
deportability and decided not to, it is not our function to remedy the
omission; it is a matter for Congress. Moreover, the Service
contention appears to be without any foundation. The predecessor of 18
U.S.C. 1546 had been the basis of conspiracy prosecutions (U.S. v.
Rubenstein, 151 F.2d 915 (C.A. 2, 1945); U.S. v. Birnbaum, 55 F.Supp.
356 (S.D.N.Y. 1944); Shimi Miho v. U.S., 57 F.2d 491 (C.A. 9, 1932)).
In section 241(a)(17) of the Act Congress provided for the deportation
of aliens convicted of conspiracy to violate certain laws which, as much
as 18 U.S.C. 1546, can involve actions by persons abroad. Also,
Congress was well aware that the conspiracy section of the Penal Code
"can frequently be utilized effectively concerning conspiracies of
violate various provisions of the immigration laws' S. Rep. No. 1515,
81st Cong., 2d Sess., 649 (1950).
Finally, the Service contends that a conviction of a conspiracy to
violate 18 U.S.C. 1546 is actually a conviction under 18 U.S.C. 1546.
It is the Service contention that by use in section 241(a)(5) of the
word "under' when referring to a conviction where conspiracy is not
specified, and use of the word "of' when referring to a conviction where
a conspiracy is specified, Congress intended to give these words
separate meanings: "of' relating to the source of the conviction, and
"under' to that which is encompassed within the range or bounds of the
specific law. The simple answer appears to be that if Congress intended
to attach the deportation liability to a person convicted of a
conspiracy to violate a statute when they referred to a conviction
"under' that statute, there would have been no need to specify in that
very section in reference to another law that a conviction of that law
and a conviction of a conspiracy to violate that law would carry the
same penalty. Before this fact contentions based on ambiguous
grammatical constructions must fall (Matter of Marinho, Int. Dec. No.
1273).
The Service representative cited several cases as authority for the
utilization of the overt facts set forth in the conspiracy count to
determine what acts the respondent had actually committed. Inasmuch as
the alien's deportation on the charge in question must be based upon a
conviction and not upon the nature of his acts, the point made is
immaterial and the cases cited are not applicable. The fact that the
acts could presumably have been the basis for a conviction under 18 U.
S.C. 1546, is also immaterial.
ORDER: It is ordered that the appeals be and the same are hereby
dismissed.
The parent of a minor United States citizen is ineligible for preference quota classification under section 203(a)(2), Immigration and Nationality Act, as amended. Reaffirmed: 360 F.2d 304 (1966) .
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant student, remained longer.
The case comes forward on appeal from the order of the special
inquiry officer dated November 17, 1964, denying the application for
adjustment of status pursuant to section 245 of the Immigration and
Nationality Act, granting voluntary departure in lieu of deportation
with the further order that if the respondent failed to depart when and
as required, he be deported to Lebanon on the charge contained in the
order to show cause.
The record relates to a native and citizen of Lebanon, 30 years old,
male, who last entered the United States at the port of New York on
January 31, 1956. He was then admitted as a nonimmigrant student,
authorized to remain in such status until January 5, 1963. The
respondent was granted until February 10, 1963, within which to effect
voluntary departure but remained thereafter without authority.
Deportability on the charge stated in the order to show cause is
established.
The case was previously before us on appeal from an order of the
special inquiry officer entered on March 27, 1963, granting voluntary
departure with the alternate order that if he failed to depart as
required, he be deported to Lebanon. The appeal was dismissed. On
August 7, 1964, we ordered proceedings reopened for the purpose of
considering the respondent's request for adjustment of status under
section 245 of the Immigration and Nationality Act, as amended, or for
such other relief as might be appropriate.
The record shows that the respondent on September 5, 1963, in the
Parish of East Baton Rouge, Louisiana married Shirley Claudia O'Hara
Mulligan, a native-born citizen of the United States. On April 19,
1964, at Omaha, Nebraska, the respondent's wife gave birth to a citizen
child. The day after the marriage she completed a visa petition to
accord the respondent nonquota status. In her sworn statement of April
20, 1964, the wife asked that the visa petition be revoked and on May
19, 1964, the District Director at New Orleans denied the visa petition.
On May 29, 1964, the respondent filed a petition for separation a mensa
et thoro in the Family Court For The Parish Of East Baton Rouge,
Louisiana in which respondent asserted under Louisiana law he was the
legal father of the child and was awarded the temporary care, custody
and control of the minor child (Ex. R-4). (A final decree in this
matter was rendered on September 9, 1964.) There is some evidence in the
file of a sham marriage for the purpose of avoiding deportation. There
is also evidence that the respondent is not the natural father of the
child (Ex. R-4; Ex. R-6, p. 5; Ex. R-7). However, we need not at this
point consider whether the relief of section 245 of the Act is warranted
as a matter of discretion. For the purpose of this discussion we shall
also assume, without conceding, that under the laws of the State of
Louisiana the respondent is recognized as the legal father of the child,
Darlene Rachael, born in Nebraska, despite his admission that he is not
the biological or natural father of the child and despite the statement
by the mother that there was never any intercourse between herself and
the respondent.
The critical question in the case is whether the respondent can meet
the requirement of section 245(a)(3) of the Immigration and Nationality
Act (8 U.S.C. 1255(a)(3)) that an immigrant visa be immediately
available to the alien. Section 203(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1153(a)(2)) provides:
(2) The next 30 per centum of the quota for each quota area for
such year, plus any portion of such quota not required for the
issuance of immigrant visas to the classes specified in paragraphs
(1) and (3), shall be made available for the issuance of immigrant
visas to qualified quota immigrants who are the parents of
citizens of the United States, such citizens being at least
twenty-one years of age or who are the unmarried sons or daughters
of citizens of the United States. (Emphasis supplied.)
Counsel construes the underlined portion of this section as though
the language thereof reads:
* * * to qualified quota immigrants who are the parents of
citizens of the United States, such citizens being (a) at least
twenty-one years of age; or (b) who are the parents of unmarried
sons or daughters of citizens of the United States.
Counsel argues that inasmuch as the respondent is the parent of a
citizen who is the unmarried daughter of his citizen wife, he is
therefore entitled to second preference quota status under the statute
as he interprets it.
The ingenuousness of counsel is commendable but not persuasive. When
the language of a statute is plain and unambiguous there is no occasion
for construction, and the statute must be given effect according to its
plain and obvious meaning. The fundamental rule of statutory
construction is to ascertain and, if possible, give effect to the
intention or purpose of the legislature as expressed in the statute.
Proper interpretation of a statute requires adherence to the plain
common sense and meaning of the language therein contained, rather than
an application of refined and technical rules of grammatical
construction. /1/
As we read section 203(a)(2) of the Immigration and Nationality Act
(8 U.S.C. 1153(a)(2)), the second preference category of immigrant visas
is available to qualified quota immigrants who are the parents of
citizens of the United States, such citizens being at least 21 years of
age, or to qualified quota immigrants who are the unmarried sons or
daughters of citizens of the United States. We are unable to read into
the language of the statute the meaning ascribed by counsel that
immigrant visas are available to parents of the unmarried sons or
daughters of citizens of the United States.
The report of the committee in each House of the legislature which
investigated the desirability of the statute under consideration is a
much used source for determining the intent of the legislature, when it
sets forth a committee's grounds for recommending passage of the
proposed bill, and more important, its understanding of the nature and
effect of the measure. Although not decisive, the intent of the
legislature as revealed by the committee report is highly persuasive.
/2/
Section 1 of the Act of September 22, 1959 (P.L. 86-363); 73 Stat.
644, H.R. 5896, provides:
Section 203(a)(2) of the Immigration and Nationality Act is
hereby amended by striking out the period and adding the
following: "or who are the unmarried sons and daughters of
citizens of the United States.'
Senate Report No. 962 (September 8, 1959), to accompany H.R. 5896,
states that section 1 of the Bill would improve the quota immigrant
status of the unmarried sons or daughters over 21 years of age of
citizens of the United States by moving them from the fourth to the
second preference in the allocation of immigrant visas within the
quotas. The second preference is presently available only to parents of
United States citizens. The report made reference to a letter from the
Deputy Attorney General, dated June 23, 1959, to the Chairman, Committee
of the Judiciary, which stated:
Under existing law (section 203(a)(4) of the Immigration and
Nationality Act) aliens who are the sons and daughters of citizens
of the United States are accorded fourth preference in the
allocation of immigrant visas within quotas. Under section 1 of
the Bill, the adult unmarried sons or daughters of citizens of the
United States would be placed in the second-preference category.
We believe that the plain reading of the statute and the legislative
history conclusively demonstrates that the allocation of quotas within
the second preference group is available only to two categories of
immigrants: (1) immigrants who are the parents of citizens of the
United States, such citizens being at least 21 years of age; or (2)
immigrants who are the unmarried sons or daughters of citizens of the
United States. Inasmuch as the respondent does not fall within any of
these categories, he is eligible only for nonpreference status. The
nonpreference portion of the quota for Lebanon, to which the respondent
is chargeable, is oversubscribed. A visa is not immediately available
to the respondent and his application for adjustment of status under
section 245 was properly denied. The respondent has been granted the
privilege of voluntary departure with an automatic order of deportation
if he fails to depart as required. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) 2 C.J.S. 577, 560, 683.
(2) Sutherland, Statutory Construction (1943 ed.) pp. 489, 490.
Applicant's voluntary departure from the United States following the institution of, and pursuant to, deportation proceedings did not break the continuity of his residence within the purview of section 249, Immigration and Nationality Act, as amended.
CHARGES:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) -- Remained longer -- Nonimmigrant.
Lodged: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Entered without inspection.
The case comes forward on appeal by the trial attorney from a
decision of the special inquiry officer dated September 15, 1964
granting the application for adjustment of status under section 249 of
the Immigration and Nationality Act.
The record relates to a native and citizen of China, 65 years old,
male, widower, who last arrived in the United States at the port of New
York on or about July 4, 1947 on the S. S. Paralos and was ordered
detained and refused a landing permit. He thereafter entered the United
States without inspection as an alien. Deportability solely on the
lodged charge is conceded.
The respondent has applied for an adjustment of immigrant status
under section 249 of the Immigration and Nationality Act. The only
requirement with which we are concerned is that the alien must have
resided continuously in the United States since prior to June 28, 1940.
In his Application for Adjustment of Status as a Permanent Resident
(Form I-485), executed in connection with the deportation proceedings,
and in his Alien Registration Form (Form AR-2) executed November 2,
1940, the respondent indicated that he had resided in the United States
since 1925. The respondent has established, on the basis of testimony
and documents presented, the requisite continuous residence in the
United States since prior to June 28, 1940. However the Service
contends that the respondent interrupted the continuity of his residence
by his voluntary departure on March 15, 1947 because this voluntary
departure occurred after the institution of deportation proceedings;
that any departure from the United States after deportation proceedings
have been instituted breaks the continuity of residence for the purpose
of section 249 relief.
The term "residence' means the place of general abode, the place of
general abode of a person means his principal, actual dwelling place in
fact without regard to intent. /1/ The Service has commingled the
definitions of "entry' and "residence' to result in the conclusion that
a person whose departure is occasioned by deportation proceedings could
not claim that he had not made a new "entry' into the United States. It
is conceded that the repondent made a new "entry' into the United States
when he entered without inspection on or about July 4, 1947 after his
voluntary departure. Since section 249 of the Immigration and
Nationality Act requires continuous residence in the United States since
prior to June 28, 1940, it is apparent that the significant term is
"residence' and that the question to be determined is whether such
residence was continuous or was broken by a voluntary departure pursuant
to deportation procedings in March 1947. The respondent testified that
he reshipped in France to another vessel owned by the same line at the
direction of the owner of the line. He claims that when he departed in
March 1947 he maintained his residence in the United States as indicated
by his retention of his living quarters in the United States where he
left much of his personal effects.
There appear to be no court cases directly in point. Those court
cases which held that residence for the purpose of section 249 of the
Immigration and Nationality Act was broken involve a departure under an
order of deportation, such departure being regarded as having executed
the order and warrant of deportation. /2/
There have been some administrative decisions which have dealt
indirectly with the problem. In Matter of P , 8 I. & N. Dec. 167, the
alien alleged entry in the United States in 1920 and continuous
residence since that time. Evidence was presented to establish that
claim and also establish that he had been absent from the United States
for brief periods on two occasions, in August 1922 and again in 1940.
The departure in 1922 was as the result of exclusion proceedings. It
was held that an alien who has been absent from the United States at any
time since the entry upon which his application is based may be found to
have resided continuously in the United States since the date of his
original entry if his absence was temporary and his principal actual
dwelling place in fact remained in the United States during the entire
period of his absence. It was further held that a departure from the
United States as a result of exclusion or expulsion proceedings breaks
the continuity of residence for the purpose of section 249, regardless
of the period of time the alien is outside the United States after such
departure. The underlined portion must be read in conjunction with the
next sentence which indicates that the applicant's continuous residence
in the United States was broken on August 24, 1922 when he was excluded
and deported. Thus the holding in this case is consistent with the
holding of the Supreme Court in Mrvica v. Esperdy, 376 U.S. 560. /3/
Although the residence since the critical date must be continuous,
the statute does not require actual physical presence in the United
States during the entire period. Temporary absence, without abandonment
of residence in the United States, will not preclude establishment of
the required residence. All the statute requires is that the applicant
"has had his residence in the United States continuously since such
entry.' "Residence' is defined as "the place of general abode; the
place of general abode of a person means his principal, actual dwelling
place in fact, without regard to intent.' /4/
The Service suggests that the record does not clearly show whether or
not the respondent was accorded the privilege of voluntary departure or
left under an outstanding deportation order. A reading of the evidence
clearly shows that it is conceded that he left under an order of
voluntary departure. In any event, if the respondent had in fact been
deported, the Service would have introduced evidence of such deportation
into the record and if they should discover such evidence, it may
properly be made the subject of a motion to reopen or reconsider.
It is concluded that the respondent has established continuous
residence in the United States since prior to June 28, 1940. His
departure in 1947 was not the result of exclusion or expulsion
proceedings but was voluntary. We are unable to distinguish between a
voluntary departure prior to the institution of deportation proceedings
and a voluntary departure subsequent to the institution of deportation
proceedings. The legal effect remains the same. The respondent has
established that his absence was temporary. He is not a member of the
excludable classes enumerated in section 249, is not ineligible to
citizenship and is a person of good moral character. He has established
eligibility for the discretionary relief available under section 249 of
the Immigration and Nationality Act. The order of the special inquiry
officer will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated September 15, 1964 granting the application for adjustment of
status under section 249 of the Immigration and Nationality Act be
affirmed.
It is further ordered that the appeal by the trial attorney from such
decision of the special inquiry officer be and the same is hereby
dismissed.
(1) Section 101(a)(33) of the Immigration and Nationality Act, 8 U.
S.C. 1101(a)(33).
(2) Mrvica v. Esperdy, 376 U.S. 560, 11 L.ed.2d 911; Chong v.
Esperdy, 191 F.Supp. 935 (S.D.N.Y., 1961); Sit Jay Sing v. Nice, 182
F.Supp. 292 (D.C., Cal. 1960) aff'd. 287 F.2d 561.
(3) Matter of P , 8 I. & N. Dec. 167, was cited with approval in
Matter of R , 8 I. & N. Dec. 598, 599.
(4) Gordon and Rosenfield, Immigration Law and Procedure 737.
Respondent is ineligible for the creation of a record of lawful admission for permanent residence, pursuant to section 249, Immigration and Nationality Act, as amended, because the continuity of his residence in the United States since prior to June 28, 1940, was broken by his absence to China from April 1947 to August 1951, during which he maintained no personal property, business or financial interests in the United States and, following the death of his wife shortly after his arrival in China, remarried, went into business there and intended to remain had not the communists overrun that country.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry -- Immigrant, no visa.
The case comes forward on appeal from the order of the special
inquiry officer dated October 30, 1964 denying the respondent's
application for adjustment of his immigration status under section 249
of the Immigration and Nationality Act, but ordering that the
deportation of respondent be suspended under section 244(a)(1) of the
Immigration and Nationality Act, as amended.
The record relates to a native and citizen of China, 66 years old,
male, married, who last entered the United States at the port of San
Francisco, California on August 24, 1951 upon presentation of a United
States passport issued to him in a name other than his own. He had
first entered the United States in 1922, returned to China in 1928,
remained there until 1936 when he returned to the United States and
again departed April 23, 1947 to China again returning the date of his
last entry as set forth above. At the time of his last entry he
intended to remain in the United States indefinitely and to seek
employment but was not in possession of a valid immigrant visa.
Deportability on the charge stated in the order to show cause has been
established.
The respondent has been granted the discretionary relief of
suspension of deportation pursuant to section 244(a)(1) of the
Immigration and Nationality Act, as amended. The appeal, however, is
from the denial of registry pursuant to section 249 of the Immigration
and Nationality Act. The discretionary relief of registry is preferred
because the respondent could immediately proceed to file a petition for
naturalization, whereas he is required to wait for five years after the
establishment of the date of lawful entry pursuant to suspension of
deportation proceedings. /1/
The reason for denial of the application for adjustment of status
pursuant to section 249 of the Immigration and Nationality Act is the
conclusion that the respondent's absence from the United States from May
1947 to August 1951 interrupted his continuous residence from June 28,
1940 and thereby rendered him ineligible for adjustment of status
pursuant to section 249 of the Immigration and Nationality Act. The
respondent, however, claims continuous residence in the United States
since May 13, 1936. He contends that his absence from the United States
during the period from May 1947 to August 1951 did not interrupt his
residence for the purpose of establishing eligibility under section 249
because he alleges that at the time he left the United States in 1947,
he did not intend to give up his residence in this country but went
abroad because his wife was seriously ill; that he decided to return to
the United States when the communists began to invade China in 1949 but
was unable to return because his adopted son was ill and because of the
illness of this adopted son he remained in China until 1951. Counsel
relies upon the case of Mendelsohn v. Dulles, 207 F.2d 37 (D.C. Cir.,
1953), which held that a person who had involuntarily resided in a
foreign country for more than five years due to financial inability to
buy passage and because of his wife's illness did not forfeit United
States nationality under section 404(c) of the Nationality Act of 1940
and section 406(c) and (e) of the Immigration and Nationality Act (8
U.S.C. 804(c), 806(c) and (e)). The court interpreted such absence as
not being voluntary and equated "duress of devotion' and "coercion of
marital affection' with physical restraint to render such absence
involuntary.
The term "residence' is defined in section 101(a)(33) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(33)) to mean the place
of general abode; the place of general abode of a person means his
principal, actual dwelling place in fact, without regard to intent.
Without stressing the higher standard of proof required in establishing
a forfeiture of United States citizenship as against the standard of
proof required in deportation proceedings, we believe the cases may be
differentiated on factual grounds.
In a sworn statement made before an immigration officer in connection
with a previous application for adjustment of status under section 249
of the Immigration and Nationality Act (which was denied by the Regional
Commissioner, Southeast Region) the respondent stated that the purpose
of his trip to China in 1947 and 1951 was because his wife was real
sick, he had a paper business in Toishan City, China and had an idea of
staying in China but when the communists came in he returned here. At
that time he left no property in the United States, his wife died a
month after his return to China in 1947, he married a second wife in
1947 and two children were born in May 1948 and December 1950. Not
until the communists took over China in 1949 did he decide to return to
the United States (Ex. B of Ex. 7, p. 10). In a subsequent sworn
statement on January 9, 1962 the respondent was questioned about his
residence in China from 1947 to 1951. He stated that when he left the
United States in 1947 he had not made up his mind to return, that he
owned no property in the United States at that time, that later on he
went into business at Toishan City, Canton, China, that when the
communists started invading China he decided to leave that country and
come back, that his intention was to remain in China if the communists
had not invaded and he would have remained there until his sons caught
on to the business and then he would have come back. He stated during
the four years he spent in China from 1947 to 1951 he had not maintained
a residence in the United States, having sold his business when he made
his trip back to China, and intended, if he came back, to look for a new
business and start again. The ages of his sons, Lee Tio Kew and Lee Ben
Kung, whom he stated were not his blood sons, were 20 and over 30,
respectively. It may be noted that the respondent has not during
previous proceedings mentioned that his continued stay in China was due
to the illness of an adopted son.
It is believed that the case is governed by the decision in Chan Wing
Cheung v. Hamilton, 298 F.2d 450 (1st Cir., 1962). In that case the
alien, an applicant for creation of a record of lawful admission for
permanent residence under section 249 of the Immigration and Nationality
Act, had entered the United States before 1940 and returned to China in
March 1947. In July 1947 while in Hong Kong he married and resided
there in his mother's apartment with his wife until August 1950. During
that time he and his wife had three children and during the latter part
of his stay in Hong Kong he was employed. The alien contended that by
various evidence relating to his continuous financial interest in the
United States and the payment of rent upon his apartment here, where he
left his clothing and furniture during his absence, and by an
affirmative statement that he "intended to continue residence
indefinitely in the United States', it could be found that he had been a
continuous resident since his original entry. The court, making
reference to the definition of residence in section 101(a)(33) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(33)), held that
residence within that definition was not the equivalent of domicile and
that it could not be found that the alien's "principal, actual dwelling
place in fact' was "continuously' in the United States throughout the
period 1947 to 1950 when he was living in China.
The instant case does not present as many favorable factors as were
present in the Cheung case, supra. Here, the respondent admittedly gave
up all his business connections in the United States, did not maintain
an apartment, and did not leave any personal property or have any
financial interest in this country. The illness of his wife lasted but
one month. Thereafter, he ramarried, went into business in China, had
two children, and would have continued to reside there had not the
communists overrun the country. We conclude that the respondent's
"principal, actual dwelling place in fact' was not continuously in the
United States during 1947 to 1951. The respondent has been granted
suspension of deportation. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) As argued by counsel. In fact, to accomplish this result
residence must be shown from prior to 1924 (section 249).
Application for waiver of the two-year-foreign-residence requirement
of section 212(e), Immigration and Nationality Act, as amended, is
granted an exchange visitor alien, a research economist in the field of
economic statistics and econometrics, whose continued presence in the
United States is deemed in the public interest since the loss of his
services through compliance with the requirement would be detrimental to
a research program of official interest to the Department of Defense.
The subject, a single male, is a native and citizen of India and his
last foreign residence was in that country. He entered the United
States on June 22, 1960 as an exchange visitor, sponsored by the
University of Chicago under Exchange Program P-I-100, and was granted
extensions of stay as a participant in that program to March 30, 1965.
Under the provisions of section 212(e) of the Immigration and
Nationality Act, as amended, he is not eligible to apply for an
immigrant visa or permanent residence in the United States until he has
resided in the country of his nationality or last residence, or in
another acceptable foreign country, for two years following departure
from the United States, or has been granted a waiver of the two-year
period of foreign residence.
The subject is a research economist in the field of economic
statistics and econometrics. He received his bachelor's degree in
mathematics in 1955 from the University of Andhra in India, his master's
degree in statistics in 1957 from the University of Bombay, and his
doctor's degree in economics in 1963 from the University of Chicago. He
has been employed as an assistant professor of economics at Stanford
University since September 1963 under a practical training program. The
university is anxious to retain his services for an important teaching
and research position in the Department of Economics, where he devotes a
substantial portion of his time to research on an Office of Naval
Research project on "efficiency of decision making in economic systems,'
a program of work concerned with several questions of considerable
importance for Department of Defense planning and programming in
research and engineering, and in procurement, and for the operation of
the United States economy. His research bears particularly on the
measurement of productivity growth and on the effects of technological
progress and change on the expansion of employment opportunities and
income distribution. In his teaching assignments he will be concerned
with courses in economic statistics and econometrics and supervising the
work of graduate students in econometric techniques. Operations
research analysts trained in these fields are in critically short supply
and greatly in demand by Defense offices and Defense contractors.
The Department of Defense is requesting that the subject be granted a
waiver of the foreign residence requirement on the ground that the loss
of his services through compliance with the requirement would be clearly
detrimental to a research program of great official interest to that
Department. The Secretary of State has reviewed the request and
recommends that the waiver be granted. From the record it is concluded
that the subject's continued presence in the United States is in the
public interest. Eligibility for the waiver has been established.
ORDER: It is ordered that the two-year period of foreign residence
required by section 212(e) of the Immigration and Nationality Act, as
amended be waived.
Since the burden of proof of establishing eligibility for nonquota
status rests upon the petitioner, and since the petitioner has not borne
his burden -- his identity and claimed relationship to the beneficiaries
having been cast in doubt by the established identity of his mother and
by the testimony of witnesses in Hong Kong -- the visa petition approval
is revoked, without prejudice to reopening if petitioner is able to
produce further evidence relating to his claimed identity and
relationship.
The cases come forward on appeal from the notice of revocation of the
District Director, San Francisco District, dated October 29, 1963,
revoking the visa petitions in behalf of the son and daughter for the
reasons that the American Consulate at Hong Kong has returned the visa
petitions with the information that a local investigation concerning the
beneficiaries reveals that they are surnamed LOUIE rather than YEE and,
therefore, the petitioner failed to establish the relationship claimed;
and that the petitioner has also failed to resolve discrepancies
developed by the American Consulate in Hong Kong.
The petitioner, born at Wo On Village, Toyshan District, Kwangtung,
China on February 9, 1924, claims United States citizenship through
parentage and is holder of a certificate of citizenship AA-33814 issued
in San Francisco in 1952. He filed a visa petition on September 7,
1962, on behalf of his alleged son, Jerng Wai Yee, and daughter, Chun
Har Yee. The beneficiaries were born on December 6, 1951, and April 1,
1949, respectively, at Wo On Li, Toyshan District, Kwangtung, China.
The petitions were conditionally approved for nonquota status on October
8, 1962, and forwarded to the American Consulate at Hong Kong.
The visa petitions were accompanied by a letter dated April 17, 1958,
relating to the approved visa petition of the petitioner's wife, Ng Ngan
Sun, which reflected that the petitioner first arrived in the United
States on June 15, 1952, was admitted by a Board of Special Inquiry as a
United States citizen and was issued citizenship certificate No.
AA-33814 around August 14, 1952. At the time of his first admission to
the United States he was 26 years old and stated he was single. When he
applied for a certificate of citizenship he also stated that he was
single. The petitioner alleged that he made a trip to Hong Kong on
April 29, 1957, returning on October 2, 1957, and exhibited United
States Passport No. 197665 showing such admission. The petitioner was
interviewed on April 15, 1958, and the facts and allegations in his
petition and relating files were verified by him. He furnished
photographs of himself and the wife-beneficiary of his petition,
identifying the latter photograph as a good likeness of his wife, Ng
Ngan Sun. He also submitted a certified copy of a Hong Kong marriage
certificate certifying to the marriage of himself to the beneficiary.
In the interview he stated that he was married on August 31, 1957, and
that he first met his wife in the Nathan Coffee Shop in Kowloon after
being introduced to her by a friend, Ng Min Poy. He stated that after
two months they became engaged and then in about another month they were
married; that he then lived with his wife after the marriage. He
stated that he thereafter took his wife to the movies; that he bought
her a gold ring with a jade setting; and also bought her some clothes
including shoes and a wrist watch of Swiss make. He stated that his
wife's father is Ng Man Yin and her mother is Lew Shee, both of whom
were presently in Hong Kong and that his wife has no brothers or
sisters. The petitioner stated that his wife's native village was Tung
Gong Village T.S.D., China and that she had lived in Hong Kong for over
two years. He stated that he sent her a little less than $1,000 since
he returned to the United States and stated that she is not now
pregnant. Photographs of the petitioner and the beneficiary and the
certificate of marriage certifying to the marriage of Yee Yook Lin and
Ng Ngan Sun were presented.
The petitioner was interviewed on October 8, 1962. It was
ascertained that the original information regarding his single status
was false. Actually, according to the petitioner, he was married by
Chinese custom at the Wo On Village, Toishan, China, on December 15,
1945, and remarried, according to western custom at Hong Kong on August
31, 1957. The petitioner's wife was also present at the interview and
her file, A-10768805 shows she was admitted into the United States at
Honolulu, Hawaii, via air, on February 12, 1960, under section 101(a)(
27)(A) of the Immigration and Nationality Act, as the wife of Yee Yok
Lin. In her application for an immigrant visa she listed her husband as
Yee Yok Lin but does not show the name of any minor children. She
stated at her interview on October 8, 1962, that she did not inform the
American Consulate at Hong Kong of her children, Jeing Wai Yee and Chun
Har Yee, because it did not seem logical for her to do so inasmuch as
she was claiming that she had married for the first time on August 31,
1957. The petitioner and his wife asserted that she and the two
beneficiaries went to Hong Kong during the Chinese ninth month of 1954,
having traveled from Ai Gong Market where the petitioner's wife and the
two children had been living since 1952. It is alleged that she and the
children left the Wo On Village about 1952, which was the year that the
petitioner entered the United States, for the reason that her mother
lived near the Ai Gong Market in the Ung Gong Village and the market was
just across the river from the Ung Gong Village. It is again claimed
that Ngan Sun Ng, the wife, has no brothers or sisters. The petitioner
stated that he has the following brothers and sisters: Yook Jee, two
years older than the petitioner living in Colorado; Yook Lim, three
years younger than the petitioner, residing in Illinois; Gim Lan, his
only sister, two years younger than the petitioner residing in Fresno,
California.
A consular report dated March 20, 1963, from the American Consulate
at Hong Kong, after reciting the above facts, states that inasmuch as
the petitioner's surname and native village did not check with the
village index, the consular officer questioned his claimed identity. On
February 8, 1963, the case investigator called on the beneficiaries'
alleged maternal grandmother, Lau Lai Wah, but found instead at the same
address a woman claiming to be the beneficiaries' guardian. She
asserted that Lau Lai Wah returned to the Mainland after the
beneficiaries' mother left for the United States in 1960. The alleged
guardian identified herself as Ng Gim Lui, a fellow tenant of the
beneficiaries' family before their mother went to the United States,
after which, the witness said she herself took the responsibility of
looking after the beneficiaries. The witness disclaimed any
relationship to the beneficiaries' family. The witness gave her
husband's name as Louie Ying also known as Louie Kun Wai (marriage
name), now in the United States. While in the witness' flat, the
investigator noticed a certificate from the Ming Sun Primary School,
evidently that of the beneficiary Yee Jerng Wai, inscribed Louie Jerng
Wai. On February 13, 1963, the investigator visited the Ming Sun
Primary School where the headmaster said the beneficiaries had entered
the school as "Yees' but in 1959 their guardian had changed their
surname to "Louie.'
The consular report went on to state that on February 18, 1963, a
usually reliable source of information reported identification of the
petitioner's father as Louie Kong Sing, who along with the petitioner,
whose given name the source did not know, is in the United States.
Naming the petitioner's wife as Ng Shee, the source said they had two
children -- a son, Louie Jerng Wai, and a daughter, Louie Chun Har --
both in Hong Kong. On February 25, 1963, a member of the consular
office interviewed Louie Bo, male, age 52, and a claimed native of Ho
Mok Village, Tong Min Heung, Toishan. This witness executed a statement
in which he identified the petitioner as Louie King Fai, his neighboring
villager; the petitioner's wife as Ng Shee, whom he thought still in
Hong Kong; and the beneficiaries as their children -- Louie Chun Har,
daughter, and Louie Jerng Wai, son. The witness said the petitioner is
in the United States as is his father, Louie Kong Sing; the latter's
wife, Hui Shee, is still in Hong Kong. This witness stated that Louie
Kong Sing and Hui Shee has a daughter whose name he does not recall, but
recalls only the son's name. On February 26, 1963, a consular
investigator interviewed Louie Man Hon, male, age 46, and a claimed
native of Sheung Lem Village, Tong Min Heung, Toishan. The witness
identified the petitioner's photograph as Louie King Fai, his
neighboring villager, now in the United States. This witness'
identification of the petitioner's wife, his children, his parents and
his sister agreed with that of the previous witness.
Counsel's brief recites that on two occasions the investigation
section of the San Francisco office confronted the petitioner with the
gist of the report from Hong Kong but that he denied that his true name
was Louie and said that he is in fact a person of United States
nationality. He argues inasmuch as the petitioner has previously been
admitted as a United States citizen and is the holder of a certificate
of citizenship, he is entitled to be recognized a citizen of the United
States and that the visa petition should be approved in view of the fact
that the report establishes the claimed relationship. He further
comments that no steps have been taken to cancel the certificate of
citizenship of the petitioner.
The burden of proof of establishing eligibility for the benefits
sought under the immigration laws rests upon the petitioner.
Cancellation of the certificate of citizenship under the provisions of
section 342 of the Immigration and Nationality Act would affect only the
document itself and not the citizenship status of the person in whose
name the document is issued. Two witnesses have positively identified
the photograph of the petitioner as that of Louie King Fai, and his
brother as Louie Kong Sing. It is noted that the petitioner's file.
AA-33814, reflects that on June 24, 1952, the alleged brother, Yee Yook
Lim, testified that his mother had one younger brother named Louie Bing
Kuey (Tr. June 24, 1952, p. 10). The alleged father testified that he
married Louie Tai Jang on CR11-2-8 (March 6, 1922) (Tr. p. 13, June 24,
1952). The applicant also testified that his mother had one younger
brother, Louie Bing Kuey (Tr. June 25, 1952, p. 24).
The testimony of the witnesses in Hong Kong and the established fact
that the petitioner's mother was a Louie who had a younger brother casts
a doubt upon the identity of the petitioner and the true nature of the
claimed relationship. Under the circumstances, it is felt that the
petitioner has not borne the burden of establishing eligibility for the
benefit he seeks under the immigration laws. The appeal from the
revocation of the visa petition will be dismissed without prejudice to
reopening if the petitioner is able to produce further evidence relating
to his claimed identity and the relationship.
ORDER: It is ordered that the appeal be dismissed from the order of
the District Director, San Francisco District, dated October 29, 1963,
revoking the approval of the visa petitions.
First preference quota status under section 203(a)(1), Immigration
and Nationality Act, as amended, as a dentist, is accorded the
beneficiary of a petition filed by an organization -- the Village of
DeWitt, Michigan, which, acting on behalf of the community, desires, and
has established an urgent need for, the services of the beneficiary --
even though beneficiary will not be in the actual employ of the
petitioner.
The petitioner, the Village of DeWitt, Michigan, seeks to bring a
dentist to DeWitt as a private practitioner to provide dental services
for the people in the community and the surrounding area. The
population of DeWitt is 1,300 and 7,000 persons live in the surrounding
area.
The petitioner requires a dentist with the degree of doctor of dental
surgery. The nearest dentists are in Lansing, Michigan, eight miles
away. Appointments must often be scheduled two to four months in
advance. The Bureau of Employment Security has found that the
occupation is one for which nationally the supply of available workers
is inadequate to meet all demands.
The beneficiary is an unmarried, 32-year-old British subject, who was
born in Hong Kong. He was admitted to the United States as a
nonimmigrant. Evidence has been presented that he received the degree
of doctor of dental surgery from the University of Detroit, Detroit,
Michigan, in June 1963. He is employed as a dentist at Wayne County
General Hospital, Eloise, Michigan,
Under section 203(a)(1)(A) of the Immigration and Nationality Act,
first preference quota status may be accorded to "qualified quota
immigrants whose services are determined by the Attorney General to be
needed urgently in the United States because of the high education,
technical training, specialized experience, or exceptional ability of
such immigrants and to be substantially beneficial prospectively to the
national economy, cultural interests, or welfare of the United States'.
Those who may file a visa petition under section 204(b) of the Act to
have an alien classified as a first preference quota immigrant are "any
person, institution, firm, organization, or governmental agency desiring
to have an alien classified as an immigrant under * * * section
203(a)(1)(A)'.
While the Village of DeWitt will not be the beneficiary's actual
employer, it is an organization which, acting on behalf of the
community, desires the services of the beneficiary and has established
an urgent need for his services.
The beneficiary has the required high education and his services
would be substantially beneficial prospectively to the welfare of the
United States.
Since the requirements of the statute have been met, the petition
will be approved.
ORDER: It is ordered that the petition be approved.
In the absence of persuasive, appealing factors, application for
waiver, pursuant to section 212(g), Immigration and Nationality Act, as
amended, of excludability under sections 212(a)(9) and (10) of the Act,
is denied, in the exercise of discretion, in the case of an alien who
was convicted in Italy in 1948 of the crime of continued extortion, in
association with 14 other men in an operation bearing strong resemblance
to the activities of an organized criminal band.
The applicant is a male, native and citizen of Italy, born in
Aragona, Agrigento, Italy, on June, 14, 1902. He was married on April
23, 1924, in Aragona to Carmela Salamone, a fifty-seven year old native
and citizen of Italy. They live together in Vittoria, Ragusa, Italy.
This is the first and only marriage for both the applicant and his
spouse. Satisfactory documentary evidence of marital history and the
naturalization of his son, Domenico Vaccarello, was presented.
The applicant has the following children, all born in Italy: (1)
Maria, born January 25, 1925; (2) Vincenzo, born August 30, 1928; and
(3) Domenico, born March 8, 1931.
Maria was lawfully admitted to the United States for permanent
residence three years ago and resides with her resident alien spouse in
Chicago, Illinois. Vincenzo is married to a school teacher and resides
in Vittoria, Ragusa, Italy. Domenico, married to a United States
citizen, was naturalized in 1963 and resides in Patterson, New Jersey.
The applicant, who has never been to the United States, was found by
the consular officer to be eligible for a visa for permanent residence
in all respects except for excludability under sections 212(a)(9) and
(10) of the Immigration and Nationality Act.
In testimony before an officer of this Service on October 6, 1964, at
Palermo, Italy, the applicant testified that the following record of
conviction related to him:
On June 26, 1948, sentenced by the Court of Assizes of Ragusa
to five years and four months' imprisonment and twenty-four
thousand lire fine for continued extortion.
According to the official court record, the applicant was accused of
having written threatening letters for the purposes of extortion, and of
attempted kidnapping, in association with fourteen other men in an
operation bearing strong resemblance to the activities of an organized
criminal band. The depredations of this band caused wide-spread terror
in the southeastern portion of the island of Sicily during 1945 and
1946. Fifteen members alleged to have been members of the band were
arrested and eventually brought to trial on June 26, 1948, in the Court
of Assizes, Ragusa. Among the crimes for which various defendants were
convicted were, extortion letters, attempted kidnapping, destruction of
property by means of military mines, dynamite, and hand grenades. The
applicant was convicted of aggravated extortion, in that, he had been
involved in the forwarding of threatening letters to the victims. The
court noted in its decision that the applicant had received a sum of
three hundred thousand lire from one of the victims and had kept, for
his own use, a portion more than that to which he was entitled, thus
cheating his co-conspirators. The court record was replete with
accounts of activities which are the mark of criminal conspirators, such
as the bombing and dynamiting of homes of intended victims who were
reluctant to accede to the demands of the extortionists. Of the
numerous crimes ascribed to the fifteen members of the band arrested and
tried, the applicant was convicted of aggravated extortion. He was
sentenced to five years and four months' imprisonment and a fine of
twenty-four thousand lire.
In describing the circumstances surrounding the conviction, the
applicant testified that, for business reasons and because he did not
enjoy "good relationship' with the local police, he had been the
innocent victim of machinations by business associates and the police.
He emphatically denied any complicity in the crime for which he was
convicted, or any association with the fourteen codefendants in his
trial. He testified further that he had never committed the crime for
which he was convicted, nor any other act or offense which might render
him inadmissible to the United States, or subject him to criminal
prosecution.
The applicant testified that he is a truck-farmer, operating his own
small acreage of vegetables. In 1963 he earned a total of five hundred
thousand lire, plus the vegetables his own family consumed. He stated
that, in the event he is granted a waiver, his wife would accompany him
to the United States. According to the applicant, his son Vincenzo, who
is married to a school teacher, intends to remain in the small town of
Vittoria close to the home occupied by the applicant and his spouse. He
testified that since his son, Domenico, had been admitted to the United
States, he had received nothing in the way of financial support from
him. He claimed, however, to be self-sufficient with his earnings.
The applicant's son, Domenico Vaccarello, was interviewed by a
Service officer on March 30, 1964, at Newark, New Jersey, and
corroborated his statements relative to their family history. He stated
that he was aware of his father's ground of excludability, but that it
was his desire that he be permitted to join him in the United States.
Domenico Vaccarello testified that he is steadily employed and has
other substantial assets, and that he was willing and able to assume the
financial obligation to support the subject in the event he is admitted
to the United States. He testified further that the hardship he was
suffering involved the age of the subject and the subject's spouse, and
the difficulty that they were experiencing in sustaining themselves. He
added that he would like to have the subject and his wife come to the
United States so they could see their grandchild. He also indicated it
would be an additional financial burden to him if, in addition to
supporting his own family, he might have to contribute to support his
parents in Italy.
Records of other investigative agencies were checked with negative
results regarding the applicant and his son.
The ground of excludability which presently bars the applicant from
admission was the result of a conviction of a crime stemming from
activities of a group of individuals who evidently had banded together
for the express purpose of planning and executing crimes of a nature
peculiarly adapted to the gang concept. The methods commonly used by
the gang to achieve its objectives were those extremely repugnant to men
of good will, and familiar with democratic traditions. The vicious
threat of physical injury, kidnapping, or damage to property, has been
recognized for many years as the evil tool of this particularly
despicable type of criminal. Manifestations of this type of criminality
are all too evident today, unfortunately, both in Sicily and in the
United States.
In spite of the weight of evidence which led to the conviction of the
applicant with his fourteen co-defendants, he stoutly maintained that he
had been innocent and that he was the victim of the animosity of
individuals because of business and personal reasons. The official
court record strongly contradicts this self-serving statement. The
applicant's intransigent attitude concerning his conviction, and his
attempt to re-try his case before the interviewing officer would tend to
invalidate an assumption of his reformation and rehabilitation.
In view of the type of criminal background relating to the applicant,
it is not entirely certain that his admission to the United States would
not be contrary to the national welfare, safety, and security of the
nation. With regard to the hardship alleged by the applicant's son, it
cannot be regarded as within the purview of the "extreme' hardship
contemplated by the statute. The applicant resides adjacent to a son
who has never actually been seperated from him.
In view of the absence of persuasive, appealing factors and the
presence of many that are derogatory, the application will be denied as
a matter of discretion.
ORDER: It is ordered that the application of Domenico Vaccarello for
a waiver of excludability under paragraphs (9) and (10) of section
212(a) of the Immigration and Nationality Act, be and is denied,
pursuant to the authority contained under section 212(g) of the
Immigration and Nationality Act.
A lawful permanent resident alien, who, following arrest and conviction of a crime involving moral turpitude in Mexico, thereafter on numerous occasions departed to Mexico on short visits to appear before the clerk of court in that country to report and to sign the bond book, made upon his returns from Mexico following such departures entries into the United States within the meaning of section 101(a)( 13), Immigration and Nationality Act, upon which to predicate a ground of deportation Rosenberg v. Fleuti, 374 U.S. 449, inapplicable. /*/
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Convicted of crime involving moral turpitude, incest.
The case comes forward on appeal by the trial attorney from the
decision of the special inquiry officer dated September 14, 1964,
ordering that the proceedings be terminated.
The respondent, a native and citizen of Mexico, 42 years old, male,
married, last entered the United States on or about January 31, 1963 and
was admitted as a returning resident alien upon presentation of his Form
I-151, Alien Registration Receipt Card. He was returning after a brief
visit with the family that had been involved in a criminal matter which
will be discussed below. The respondent had been admitted for lawful
residence as a nonquota immigrant on April 10, 1953 and he testified
that he had been entering the United States illegally for some four
years prior to his legal admission. Since his lawful admission on April
10, 1953, the respondent had made numerous short visits to Mexico,
returning each time upon presentation of his Form I-151. However, he
testified that he was arrested in the month of July 1960 at Jaurez,
Mexico, charged with the crime of incest and was kept in jail for two
months. He was then released on bond around September 26, 1960 and
thereafter reported weekly to the office of the clerk of the Second
Penal Court, Jaurez, Mexico to sign the bond book and appeared weekly
for a period of two or three months, thereafter receiving permission to
appear not less than once per month. The respondent continued to report
to the clerk's office in Jaurez to sign the bond book until either
November 1961 or January 1962.
On September 27, 1961 in the Second Penal Court, Jaurez, Chihuahua,
Mexico the respondent was convicted of the crime of incest and was
sentenced to a term of imprisonment of two years and six months. On
November 22, 1961 the First Penal Branch of the Supreme Tribunal of
Justice of the State of Chihuahua, Mexico dismissed his appeal from this
conviction. A further appeal in the nature of an application for an
"amparo' was made by his lawyer to a higher court in Mexico and he
testified that the application for the "amparo' was dismissed on August
24, 1962, a fact which he first learned from an immigration investigator
on February 1, 1963 when the investigator required him to surrender his
Form I-151. The respondent testified that since surrendering this
document he has been unable to go to Mexico to consult with his attorney
about any further action in the criminal case relating to the conviction
for incest and has not communicated with his attorney in Jaurez, despite
the fact that he knows the attorney's address, and does not know the
present status of the case. He has testified that except for the two
months' imprisonment after his arrest, he has not subsequently served
any imprisonment as a result of his sentence for conviction of incest.
In his original order dated June 26, 1963, the special inquiry
officer found the respondent deportable on the charge contained in the
order to show cause. The respondent applied for a waiver nunc pro tunc
under section 212(g) of the Immigration and Nationality Act of his
excludability under section 212(a)(9) of the Act, based upon the claim
that his exclusion would result in extreme hardship to his citizen wife
and citizen daughter whom, he testified, resided with him and were
dependent upon him for support. At the hearing the respondent alleged
that his wife and daughter were living with him at 1000 East San Antonio
Street, Apartment 16, El Paso, Texas. A report of investigation with
reference to discretionary relief under section 212( g) was received
into evidence pursuant to stipulation, and counsel for the respondent
has declined to make application for reopening to present evidence that
would overcome the adverse matter contained therein (Ex. 7). The report
of investigation shows that the respondent has not lived with his wife
for the past 14 months; that she had instituted divorce proceedings in
El Paso early in 1957 but did not complete these proceedings because of
lack of funds; that she and the respondent were reconciled in 1960 and
lived together until March 1962 when they separated. She stated that
the source of their difficulties was that the respondent had a woman and
daughters in Jaurez, Mexico and spent all of his money on them.
Apparently this Mexican family was involved in the incest case. The
respondent's wife stated that he visited her frequently and gave her a
little money but does not contribute materially to her support; that
she has worked continuously since 1957 and is employed at a restaurant
in El Paso, earning $30.00 a week plus tips; that she supports herself
and their daughter as well as her divorced daughter's baby. The
respondent's wife stated that under the present situation it would not
constitute an economic detriment to her if the respondent were deported.
In the exercise of discretion the special inquiry officer on the basis
of this evidence denied discretionary relief for a nunc pro tunc waiver
under section 212(g) or for voluntary departure.
On June 27, 1963, the special inquiry officer ordered that his prior
order and decision entered June 26, 1963, be withdrawn and that the
hearing be reopened for further consideration in the light of the
holding in Rosenberg v. Fleuti, 374 U.S. 449 (June 17, 1963). On
September 14, 1964, the special inquiry officer found that,
notwithstanding the respondent's conviction for incest which became
final on November 22, 1961, he did not make an "entry' on the occasions
that he returned to the United States thereafter following brief visits
to Juarez, Mexico at weekly intervals which were for the purpose of
signing the bond book in the office of the clerk of the court in Juarez
and also for the purpose of pleasure and to visit relatives in that
city; that consequently he fell within the purview of Rosenberg v.
Fleuti, supra, and ordered that the proceedings be terminated.
The case of Rosenberg v. Fleuti, 374 U.S. 449, 10 L.ed.2d 1000,
concerned an alien who was originally admitted to the United States for
permanent residence in 1952 and had resided here continuously except for
a brief visit of about a couple of hours in Mexico in 1956 and was
ordered to be deported on the ground that at the time of his 1956 return
he was excludable under section 212(a)(4) of the Immigration and
Nationality Act of 1952 as an alien "afflicted with psychopathic
personality.' The Supreme Court felt it was unnecessary to reach the
constitutional question raised by the term "afflicted with psychopathic
personality,' since under section 101(a)(13) of the Act an innocent,
casual and brief excursion by a resident alien outside the borders of
the United States may not have been "intended' as a departure disruptive
of his resident alien status and therefore may not subject him to the
consequences of an "entry' into the United States on his return. In its
decision the Court traced the earlier cases which had developed a
judicial definition of entry which had harsh consequences for the alien,
the impact of which was lessened by the cases of Di Pasquale v. Karnuth
and Del Guercio v. Delgadillo. /1/ The Court pointed out that the
holding of these cases was considered by Congress by defining the term
"entry' in section 101(a)(13) of the Immigration and Nationality Act of
1952, 8 U.S.C. 1101(a)(13) to mean any coming of an alien into the
United States, from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise, except that an alien
having a lawful permanent residence in the United States shall not be
regarded as making an entry into the United States for the purposes of
the immigration laws if the alien proves to the satisfaction of the
Attorney General that his departure to a foreign port or place or to an
outlying possession was not intended or reasonably to be expected by him
or his presence in a foreign port or place or in an outlying possession
was not voluntary: Provided, That no person whose departure from the
United States was occasioned by deportation proceedings, extradition, or
other legal process shall be held to be entitled to such exception.
The Court stated if a foreign trip was innocent, casual and brief, it
is consistent with those discernible signs of Congressional purpose to
hold that the "departure was not intended' within the meaning of the
ameliorative intent of the exception to section 101(a)(13) of the Act
and concluded that it effectuates Congressional purpose to construe the
intent exception to section 101(a)(13) as meaning an intent to depart in
the manner which can be regarded as meaningfully interruptive of the
alien's permanent residence. The Court further stated that the major
factors relevant to whether such intent can be inferred, is the length
of time the alien is absent; another, the purpose of the visit, for if
the purpose of leaving the country is to accomplish some object which is
itself contrary to some policy reflected in our immigration laws, it
would appear that the interruption of residence thereby occurring would
properly be regarded as meaningful; and that still another was whether
the alien had to procure any travel documents to make his trip since the
need to obtain such documents might cause the alien to consider more
fully the implications involved in his leaving the country. The Court,
observing that the operation of these possibly relevant factors remains
to be developed by the gradual process of judicial inclusion and
exclusion held that an innocent, casual and brief excursion by a
resident alien outside this country's borders may not have been
"intended' as a departure disruptive of his resident alien status and
therefore may not subject him to the consequences of an "entry' into the
country on his return.
In the instant case the respondent was admitted for permanent
residence on April 10, 1953. On one of his numerous trips into Mexico
he was arrested in July 1960, charged with the crime of incest and was
kept in jail for two months. It may be noted that the type and length
of this absence is not the innocent, casual and brief absence that was
present in the Fleuti case. On September 27, 1961, he was convicted,
his appeal from this conviction was dismissed on November 22, 1961 and
his application for an "amparo' was dismissed on August 24, 1962. The
exact nature and effect of an "amparo,' are not set forth by the special
inquiry officer. However, upon the facts, it appears that there exists
a final conviction on September 27, 1961 for the crime of incest.
Thereafter, on numerous occasions the respondent was required by the
court in Mexico to appear before the clerk of the court to report and to
sign the bond book. All these absences of the respondent were as a
result of the legal criminal proceeding arising out of the commission
and conviction of the crime of incest.
The definition of the term "entry' contained in section 101(a)(13) of
the Immigration and Nationality Act of 1952 provides that the "intent'
exception shall not be applicable to a person whose departure from the
United States was occasioned by deportation proceedings, extradition or
other legal process. The departures of this respondent, whose
departures from the United States were occasioned by legal criminal
proceedings, appear to fall squarely within the scope of this proviso.
We conclude that the facts and circumstances of this case vary so much
from the facts and circumstances in the Fleuti case as to render the
holding in that case inapplicable. /2/ It is found that the respondent
since his conviction on September 27, 1961, for the offense of incest, a
crime involving moral turpitude, has been absent on numerous occasions
to Mexico and that his returns from Mexico constituted entries into the
United States. At the time of his entries into the United States
subsequent to his conviction the respondent was excludable under the
immigration laws. The charge in the order to show cause is sustained.
The respondent has made application for a nunc pro tunc waiver under
section 212(g) of the Immigration and Nationality Act based upon his
citizen wife and child or in lieu thereof for voluntary departure. For
the reasons set forth by the special inquiry officer in his order of
June 26, 1963, to wit, the failure to establish that his deportation
would result in extreme hardship to his citizen wife and daughter and in
view of the fraud and deceit revealed in the testimony of the respondent
and his wife as shown by an investigator's report which showed that they
had been separated for the past 14 months instead of living together as
represented, together with the fact that he has been convicted of a
crime involving moral turpitude within the past five years,
discretionary relief will be denied.
ORDER: It is ordered that the appeal of the trial attorney from the
order of the special inquiry officer dated September 14, 1964, be
sustained.
It is further ordered that the application for a waiver nunc pro tunc
under section 212(g) of the ground of excludability of the respondent at
the time of his entry on January 31, 1963, as an alien who had been
convicted of a crime involving moral turpitude to wit, incest, be
denied.
It is further ordered that the application for voluntary departure be
denied.
It is further ordered that the respondent be deported from the United
States to Mexico on the charge contained in the order to show cause.
(*) Affirmed: Caudillo-Villalobos v. Immigration and Naturalization
Service, 361 F.2d 329 (C.A. 5, 1966).
(1) Di Pasquale v. Karnuth, 158 F.2d 878, involved an alien who took
an overnight sleeper from Buffalo to Detroit which was routed through
Canada and the Court held that it could be too harsh to impute the
carrier's intent to the alien, there being no showing that the alien
knew he would be entering Canada; Delgadillo v. Carmichael, 332 U.S.
388 involved an alien who upon rescue after his intercostal merchant
ship was torpedoed during World War II had been taken to Cuba to
recuperate before returning to this country and the Court held that the
exigencies of war and not his voluntary act put the alien on foreign
soil and the Court refused to attribute to Congress a purpose to make
the alien's right to remain here dependent on circumstances so
fortuitous and capricious.
(2) Compare Matter of Abi-Rachid, Int. Dec. No. 1344; Matter of
Guimares, Int. Dec. No. 1339; Matter of Scherbank, Int. Dec. No. 1337.
Since a United States citizen who voted in a municipal election in
Italy on March 30, 1946, has the burden of proving duress by a
preponderence of the evidence (section 349(c), Immigration and
Nationality Act, as amended; 8 U.S.C. 1481(c)), and petitioner failed
to carry her burden, her voluntary voting in said municipal election
resulted in expatriation under section 401(e), Nationality Act of 1940.
The District Director, New York District, certified to us his order
denying petitioner's application to have her married daughter, an
Italian national, given the preference available to the daughter of a
United States citizen under the quota; the District Director held that
the petitioner had lost United States citizenship when she voted in
Italy in 1946. Petitioner claims that she did not lose her citizenship
because her voting was under duress and was without knowledge of her
United States citizenship. No change will be made in the District
Director's order.
Petitioner, born in the United States on June 4, 1908, was a citizen
of both the United States and Italy at birth. After the death of her
father in 1910 her mother took her to Italy where she resided until May
8, 1961 when she entered the United States as an alien for permanent
residence. Petitioner married in Italy in 1932, the beneficiary was
born the following year.
The evidence as to voting in Italy is based primarily upon admissions
made at various times by the petitioner. The earliest admissions -- in
a questionnaire the petitioner completed on January 22, 1954 before a
vice consul of the United States at Naples, Italy to obtain a United
States passport -- revealed that she voted in municipal elections on
March 30, 1946 and May 25, 1952, in national elections on June 2, 1946,
April 18, 1948 and June 7, 1953, and that she voted without knowing that
she should not vote. The vice consul executed a Certificate of Loss of
Nationality on February 3, 1954 stating that petitioner had lost United
States nationality by voting in a political election in Italy on March
30, 1946 (section 401(e), Nationality Act of 1940; 54 Stat. 1168).
Other admissions were made at a hearing before a naturalization
examiner on May 18, 1963. Petitioner testified she had furnished
truthful information concerning voting to the American consul in Naples
(pp. 6-8), that she then could recall the dates of voting but cannot now
(pp. 7-8, 11) and that she does not remember whether she voted in 1946.
Somewhat inconsistent with the testimony that she cannot recall the
dates of voting, she testified that she voted on the dates shown in the
questionnaire (pp. 6-8, 15). She stated she was not permitted to read
the questionnaire before she signed it (pp. 6-7). The Service officer
in charge at Naples, Italy has furnished the information that evidence
of voting which was available when petitioner made her statement to the
vice consul, has been destroyed.
The fact that the petitioner voted at the times shown in the
questionnaire is deemed established by the admissions in the
questionnaire, her present admission that she voted and that she told
the vice consul the facts about her voting, the certificate of loss of
citizenship executed by the vice consel and the presumption of official
regularity existing in connection with its execution (Vaccaro v.
Bernsen, 267 F.2d 265 (5th Cir., 1959)).
Petitioner claims she was forced to vote. She explained her
statement of 1954 (about voting without knowing she should not vote)
meant that she did not want to vote, but that she did because she was
told to vote to help democracy in Italy (pp. 7, 11-13). She said that
before she voted in 1948, a high church official, stating that he had
received a telegram from the American consul urging all American people
to vote, told the congregation of which she was a part to vote in order
to prevent the Communists from gaining power and taking away their
children; the church official threatened those who did not vote with
excommunication (pp. 13-14). She stated that after she voted in one
election the pastor of the church suggested that she vote in the others
(p. 6). Petitioner submitted a letter dated January 25, 1962 from a
church official who stated that in 1948, he "insisted' that the
petitioner vote because it was her moral responsibility. Petitioner
testified that in municipal elections there was no pressure to
participate (pp. 14-15).
The contention that duress was present in the petitioner's voting
cannot be considered a defense as to any voting after December 24, 1952
(she voted on June 7, 1953); the provisions of section 349(b) of the
Act, 8 U.S.C. 1481(b) (as the hearing officer has fully pointed out)
raise a conclusive presumption in circumstances such as exist here that
expatriation occurred as of June 7, 1953 (Matter of C , 9 I. & N. Dec.
41; Matter of C S , 9 I. & N. Dec. 670).
If it were necessary to consider petitioner's acts of voting prior to
December 24, 1952 the conclusive presumption would not apply. As to
voting prior to December 24, 1952 the rule as to duress depends upon
whether the issue as to loss of citizenship was raised before or after
September 26, 1961. In this proceeding, the issue was raised after
September 26, 1961 by the filing of the visa petition on October 16,
1961; the governing rule is that the person claiming duress has the
burden of proving the claim by a preponderance of the evidence (section
349(c) of the Act, 8 U.S.C. 1481(c)). Petitioner failed to carry her
burden: voting in a municipal election is expatriatory (Bisceglia v.
Acheson, 196 F.2d 865 (D.C. Cir., 1952)) and by her own admission her
voting in the municipal elections was voluntary, and in this case,
expatriation occurred in 1946 under section 401(e) of the Nationality
Act when the first expatriative act occurred.
The petitioner's claim that when she voted she did not know she was a
United States citizen need not be considered for loss of United States
citizenship is conclusively established by reason of her voting in 1953.
Moreover she voted in 1952 and in 1953 after she had learned she was a
citizen of the United States and before she had been informed that she
had lost United States citizenship. The voting in 1952 was in a local
election where duress was not involved; the voting in 1953 was in an
election where duress cannot be offered as a defense. It is not
necessary to discuss the contention further. Roger v. Patokoski, 271
F.2d 858 (9th Cir., 1959) which concerned the commission of acts of
expatriation by a person who at the time had not known that he had a
right to United States citizenship is therefore not pertinent. We may
add for the record that it is our belief that, even prior to 1950, the
petitioner must have known she was a United States citizen. She wanted
to come to the United States but gave as reasons only the fact that she
had no money or that her birth certificate was not available --
documentary grounds were not advanced; furthermore, even before 1940,
there was a question in her mind as to whether or not she was entitled
to a United States passport (pp. 9-10).
The fact that petitioner did not intend to lose United States
citizenship by voting does not save her from the consequences of voting
(Perez v. Brownell, 356 U.S. 44 (1958); Acheson v. Mariko Kuniyuki, 190
F.2d 897 (9th Cir., 1951), certiorari denied 342 U.S. 942).
ORDER: It is ordered that no change be made in the order of the
District Director.
Petition to accord beneficiary first-preference classification under
section 203(a)(1), Immigration and Nationality Act, as amended, as a
masseuse, is denied for failure to establish that beneficiary possesses
the high degree of skill required or that the position requires a person
possessing such qualifications since the position requires the care of
petitioner who is afflicted with multiple sclerosis in an advanced
stage, beneficiary had no training or experience as a masseuse, or in
the field of therapeutics, prior to her arrival in the United States in
1961, her qualifying experience for the position in question has been
gained basically from a two-week period of intensive instruction which
she received in 1961 from the physiotherapist and physician of the
petitioner, and her duties since that time have generally involved
putting such training into practice with some occasional modification of
procedures under the direction of the physician or the therapist.
This matter is before the Regional Commissioner on appeal from the
decision of the District Director at New York, New York, who has denied
the petitioner's request for preference in the issuance of an immigrant
visa on the ground that the petitioner has failed to satisfactorily
establish that the services of the beneficiary are needed because of her
high education, technical training, specialized experience or
exceptional ability and further that the beneficiary's employment does
not meet the additional statutory requirements of being substantially
beneficial prospectively to the national economy, cultural interest or
welfare of the United States.
The clearance order provides for a masseuse. It sets out specific
experience requirements as follows:
At least 2 years experience in the massage and exercise
techniques used in the management of multiple sclerosis and
familiarity with the use of a massage vibrator, Hoyer lift, and
the customary pulley and other exercise equipment.
The duties of the position require the holder to perform:
Therapeutic massage with and without electric vibrator, three
times daily, and assistance with supervision of various
therapeutic exercises with and without equipment, all under
medical supervision. The incidental care and comfort of the
patient also includes personal washing and feeding, and lifting,
moving and turning.
The petition and supporting documents disclose that the 64-year-old
petitioner is afflicted with multiple sclerosis in an advanced stage and
is confined to home, is not ambulatory, lacks motor control and requires
constant care and therapy. She has been unable to secure the services
locally of someone to stay in attendance with her and give her the care
that she needs. The beneficiary is the petitioner's 40-year-old single
niece who was admitted to the United States as a visitor destined to the
petitioner at the time of her arrival on April 29, 1961. For the 10
years prior to her arrival she was employed as a worker in a tobacco
factory in Italy. Since arrival, the beneficiary has been the
petitioner's principal attendant. The alien is supervised in the care
of the petitioner by the family physician who visits once a month and by
a licensed physiotherapist who comes to the home weekly. The
therapeutic care, which calls for massage three times daily with and
without electric vibrators, requires different techniques according to
the part of the body involved.
It has been claimed on appeal that without the beneficiary's
assistance, the petitioner will eventually have to be institutionalized
at public expense; that, for this reason, the alien's services should
be regarded as prospectively beneficial to the economy and welfare of
the United States. There has been submitted in support of the appeal a
statement by the petitioner's family physician in which he sets forth
the beneficiary's training and qualifications for the position.
The alien's instruction began in the summer of 1961 and continued for
about two years. Initially, she received daily instruction over a
two-week period from both the physician and therapist regarding the
nature of the petitioner's disease, the anatomy of the muscle groups
involved, and the techniques to be employed in massaging and moving the
patient. Since such time, the beneficiary has been supervised weekly by
the therapist and monthly by the physician. In view of the progressive
character of the disease, it has been necessary from time to time to
change the positioning of the patient and massage. According to the
physician, the alien has demonstrated natural aptitude in the field of
physiotherapy, adeptness in handling the petitioner and ability to cope
with the changing situations attributable to to the vagaries of the
disease.
After very careful consideration of this matter, we are convinced
that the petitioner requires the constant care of an attendant and that
the beneficiary has served her well in this regard. We are also
cognizant of the difficulties encountered in filling a position of this
nature and the loving care and devotion which the alien has accorded the
petitioner. Despite the sympathetic factors involved, we cannot
authorize the approval of first preference quota status for the
beneficiary as a means of perpetuating her stay in the United States.
The record in this case reflects that the alien had no training or
experience either as a masseuse or in the field of therapeutics prior to
her arrival in this country. Her qualifying experience for the position
in question has been gained basically from the two weeks of intensive
instruction which she received in 1961 from the family physician and the
physiotherapist. Her duties since that time have generally involved
putting such training into practice with some occasional modification of
procedures under the direction of the physician or therapist. In view
of the foregoing, we do not find it has been satisfactorily established
that the beneficiary possesses the high degree of skill or ability
necessary for first preference quota classification or that the duties
of the position require a person having these qualifications. The
appeal, therefore, will be dismissed for these reasons.
It is ordered that the appeal be and same is hereby dismissed.
A single scheme of criminal misconduct within the purview of section 241(a)(4), Immigration and Nationality Act, is not established by respondent's self-serving testimony where records of convictions show forgery of two checks on two different accounts one year apart, there was no connection between the accounts, and respondent did not have access to the second account when he started forging checks on the first.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of two crimes after entry, petit larceny and attempted grand
larceny, second degree.
This is an appeal from the order of the special inquiry officer
requiring respondent's deportation upon the ground stated above. The
appeal will be dismissed.
Respondent, a 37-year-old married male alien, a native of Scotland
and citizen of the United Kingdom and Colonies, was admitted to the
United States for permanent residence on April 3, 1960. His deportation
is sought on the ground that he has been convicted of two crimes after
entry; his defense is that the crimes arise out of a single scheme of
criminal misconduct.
This is the respondent's testimony. Employed by an accounting firm,
he visited various businesses to audit books; Mr. Donaughy was visited
every Friday and Mr. Reidy every Tuesday. Respondent took some blank
checks from Mr. Donaughy whose name he tried to forge but could not to
his satisfaction. About a week later he took some blank checks from Mr.
Reidy and tried to forge his signature; dissatisfied with the results,
he kept trying to forge checks upon both accounts. Deciding he could
satisfactorily forge the names of both Mr. Donaughy and Mr. Reidy, he
made out a check in the sum of $200 on the Donaughy account and one for
$400 on the Reidy account; both checks were made out at respondent's
home in the same evening, but were given different dates (p. 14).
Respondent deposited the Donaughy check; finding it cleared, he
deposited the Reidy check. There was an interval of about a month in
making the deposits; it was brought about primarily by the need for
determining if the first check would clear but was also to enable
respondent to have sufficient time to juggle the books, to prevent
suspicion which might be raised by the fact that too many deposits were
made to respondent's account at one time, and because it was easier to
conceal the taking of small amounts from two separate accounts than a
large amount from one account. The forgeries apparently continued over
a period of time.
The record does not support the respondent's version as to the manner
and time the crimes were committed. The forgery of a check on the
Donaughy account came to light. In an affidavit dated November 1, 1963
instituting criminal proceedings Mr. Donaughy charged the respondent
with committing the crime of forgery of a check dated October 10, 1963
in the sum of $200; the affidavit stated that in the period from
January 1963 to October 1963 when respondent had access to the affiant's
books, he had taken eight blank checks. The affidavit states that
respondent, when questioned by a detective, had said that he made out
the check in Mr. Donaughy's office (Ex. 2). Respondent was permitted to
enter a plea of guilty on November 12, 1963 to a charge of petty
larceny. On December 20, 1963 he was given a suspended sentence and
placed on probation.
When the Donaughy forgery came to light an audit of the accounts
serviced by respondent revealed the Reidy forgeries. On December 3,
1963, Mr. Reidy filed an affidavit charging respondent with having
committed forgery, grand larceny, and uttering 15 checks between October
1, 1961 and September 30, 1963 for a total of $5000. An indictment
filed February 26, 1964 charged respondent with forging checks on
Reidy's account from April 1962 to September 30, 1963. Three specific
checks (November 6, 1962, June 4, 1963, September 30, 1963) formed the
basis for nine counts. The respondent was charged with forgery of the
three checks, with uttering each check and with committing grand larceny
in the second by stealing the money he obtained by cashing each check.
The fourth count of the indictment charged the respondent with
committing grand larceny in the second degree by stealing $400 which he
obtained by cashing the check forged on September 30, 1963. On this
count, respondent entered a plea of guilty to attempted grand larceny,
second degree; on March 17, 1964 he received a suspended sentence and
was placed on probation. He is making restitution in connection with
both convictions.
The respondent's claim that it was at his home and at the same time
that he forged the two checks which were the bases for his convictions
is contrary to his alleged admission to the detective that he forged one
check at Donaughy's place of business. Moreover, even if it were true
that both checks had been made out at the same time and place, a single
scheme would not be established for the record reveals that the plot to
steal from both Reidy and Donaughy could not have been formed at the
same time: respondent who was uttering forged checks on Reidy in 1962
did not even have access to the Donaughy account until 1963.
Furthermore, since there was no connection between Reidy and Donaughy,
the stealing from one could not have been part of a conspiracy to steal
from the other. Considering the self-interest of the respondent, the
conflict in his testimony and statement reportedly made to the detective
and considering the fact that respondent did not have access to the
Donaughy account when he started forging checks on Reidy, we must
conclude the Service has borne its burden of establishing that the two
convictions did not arise out of a single scheme of criminal misconduct.
Respondent's statement that his deportation would result in
separation from his two-year-old natural child and from her mother whom
he intends to marry as soon as he receives a divorce from his wife in
England is noted. Since the respondent is not eligible for
discretionary relief, there is no administrative authority to grant him
a legal status in the United States.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
A native of Hungary and naturalized citizen of Canada, married to a
naturalized citizen of the United States, who was a member of the
Communist Party of Hungary from 1948 to 1956, when he left Hungary, is
granted classification as a defector, pursuant to section 212(a)(28)(
I)(ii), Immigration and Nationality Act, since his admission to the
United States would be in the public interest and he has demonstrated
opposition to communism within the contemplation of that section, having
testified that at the time of the 1956 Revolution he was a captain in
the Hungarian army and aided the revolutionaries by furnishing them
cars, auto parts, and fuel; that he has completely disavowed and, in
fact, never believed in communism; that he opposed communism in Canada
since 1956 by speaking out against communism among old-time Hungarians
and by participating in plays to raise money to send Hungarian refugees
in Austrian camps; and six residents of Canada attest to his active
opposition to communism during the 6 to 7 years they have known him.
The applicant is a citizen of Canada, born October 2, 1914 in Moson,
Hungary. He left Hungary in 1956, after the Revolution failed, and went
to Vienna where he applied for an immigrant visa for the United States.
When this was refused, he went to Canada and was naturalized as a
Canadian citizen on December 21, 1962. He entered the United States as
a temporary visitor on April 6, 1963, and on April 18, 1963, married a
naturalized citizen of the United States. They are expecting the birth
of their first child in May 1964. The applicant was employed in Canada
as a painter and laborer, and in the United States has been employed as
an auto mechanic. He admits membership in the Hungarian Workers' Party,
also known as the Communist Party of Hungary (Magyar Dolgozok Partija,
or MDP) for 8 years, from 1948 to 1956, when he left Hungary. He now
seeks classification as a defector so that he will be in a position to
prosecute his application for status as a permanent resident under
section 245 of the Immigration and Nationality Act.
The applicant has testified that he joined the Social Democratic
Party in Hungary in 1948. This party merged with the Communist Party a
few months later, and he continued his membership after the merger
because the director of the hospital where he worked told him he would
lose his job if he dropped out. He estimated that two thirds of the
employees at the hospital were Communist Party members. He attended
meetings of the Communist Party regularly because he had to, and said
that communism was taught at these meetings. Dues were not required,
but he contributed money to the party. The only office he held was that
of sports manager for a group of about 30 Communist Party members who
were employed in the hospital where he worked. He testified that he
served in the Hungarian Army for about 7 years, from 1937 to 1943, and
in 1951 he voluntarily enlisted in the Hungarian Communist Army as an
officer candidate in order to better himself, as he was poorly paid in
the hospital where he worked. He remained in the army until he left
Hungary in 1956 and attained rank of Captain. He testified that he
continued his membership in the Communist Party during this entire
period but held no office in the party while he was in the army. He
said he was required to take political training and to disseminate
propaganda but was not required to recruit party members.
The applicant has testified that at the time of the 1956 Revolution
in Hungary, he was a captain in the army, in charge of cars and helped
the Revolutionaries by furnishing them with cars, auto parts and fuel.
He also testified that he has completely disavowed communism, and in
fact never believed in communism. He claims to have opposed communism
in Canada since 1956 by speaking out against communism among old-time
Hungarians and by participating in plays to raise money to send to
Hungarian refugees in Austrian camps. The file contains statements by
six residents of Canada who have known the applicant for 6 to 7 years.
All attest to his active opposition to communism during the time they
have known him. The file contains a statement by the Rev. Louis J.
Horanyi of Our Lady of Hungary Catholic Church in Vancouver, Canada,
certifying that the applicant was a member of that church for 5 years
and recommending him as a trustworthy and reliable person of good
reputation. Security checks by this Service has disclosed no additional
derogatory information concerning this subject.
After a careful review of the record it is concluded that the
applicant has demonstrated opposition to communism as contemplated by
section 212(a)(28)(I)(ii) of the Immigration and Nationality Act and
that his admission to the United States would be in the public interest.
ORDER: It is ordered that the application for status as a defector
pursuant to section 212(a)(28)(I)(ii) of the Immigration and Nationality
Act be granted.
A native and citizen of Turkey, whose initial application for waiver
of the 2-year-foreign-residence requirement of section 212(e),
Immigration and Nationality Act, as amended, was denied for failure to
establish exceptional hardship to his United States citizen wife; who,
with his wife, departed to Canada in June 1962 with the intention of
complying with the foreign-residence requirement; and who was advised
upon completion of 2 years' residence in Canada that such residence had
not served the purpose and intent of the Mutual Educational and Cultural
Exchange Act, is granted a waiver of the foreign-residence requirement
since compliance therewith would impose exceptional hardship upon his
United States-citizen child born in Canada November 17, 1963, who will
require extensive medical care and surgery to correct a congenital
physical defect.
The applicant, Doctor Stepan Petuoglu, is a thirty-three year old
male physician, a native and citizen of Turkey. He was first admitted
to the United States as an exchange visitor on June 28, 1957, for an
internship and residency in medicine. From 1957 to 1958 he was an
intern at Bergen Pines County Hospital, New Jersey; from 1958 to 1961
he was in residency at Missouri Pacific Hospital, St. Louis, Missouri;
and from 1961 to 1962 he was in training in hematology at Baylor
University Medical Center, Dallas, Texas. Doctor Petuoglu departed from
the United States and entered Canada in June 1962. He was accompanied
by his United States citizen wife, Norma Jean Petuoglu, whom he married
on October 8, 1961. The applicant and his family have resided in Canada
since June 1962. On October 29, 1962, Doctor Petuoglu submitted an
application for a waiver of the requirements of section 212(e);
however, exceptional hardship could not be established at that time and
the application was denied.
His departure from the United States in June 1962 to Canada was made
with the intention of complying with the two-year foreign residence
requirement. Upon completion of two years of residence in Canada,
Doctor Petuoglu applied for his visa and on September 1, 1964, was
advised that his "residence in Canada has not served the purpose and
intent of the Mutual Educational and Cultural Exchange Act'.
The applicant now has a minor United States citizen child, Diane Sona
Petuoglu, who was born in Canada on November 17, 1963. Evidence
presented by the attending physician shows the child was born with a
physical defect referred to as Pierre Robin Syndrome, which is
characterized by cleft palate and receding lower jaw. The child will
require extensive medical care and surgery to correct her condition.
The applicant states that he has been offered a good position in St.
Louis, Missouri, which will provide adequate salary and medical
facilities to secure whatever medical treatments are required for his
daughter.
Satisfactory evidence of Doctor Petuoglu's marriage to a United
States citizen and the birth of his child have been presented.
In view of the foregoing, it has been determined that compliance with
the foreign residence requirement of section 212(e) of the Act would
impose exceptional hardship upon the applicant's United States citizen
child. The Secretary of State has recommended that the foreign
residence requirement be waived. Therefore, the following order is
entered.
ORDER: It is ordered that the application of Doctor Stepan Petuoglu
for a waiver of the two-year foreign residence requirement of section
212(e) of the Immigration and Nationality Act be and is hereby granted
pursuant to the authority contained in the statute.
Petition to accord beneficiary first preference classification under
section 203(a)(1), Immigration and Nationality Act, as amended, as a
cabinetmaker is denied where the evidence fails to establish beneficiary
possesses, as set forth in the clearance order, a minimum of 3 years'
requisite experience to fabricate and finish cabinets of custom design;
use both hand and machine cabinetmaking tools to cut, fit, glue, join,
and assemble fine custom-made cabinets and cabinet parts; work from
designs, sketches, and plans; and make own pattern.
This petition, filed February 12, 1964, was denied by our District
Director at New York City on September 22, 1964, on a finding that
petitioner had failed to establish that the beneficiary has the
requisite experience or training to perform or that he can perform the
duties specified in the petition and clearance order. The matter is
before us on appeal.
The petition seeks first preference immigration quota status for
beneficiary as a cabinetmaker. The Bureau of Employment Security
clearance order calls for one with a minimum of three years' experience
to "fabricate and finish cabinets of custom design. Use hand and
machine cabinetmaking tools to cut, fit, glue, join and assemble fine
custom-made cabinets and cabinet parts. Must be able to work from
designs, sketches and plans, and make own pattern.'
Evidence of beneficiary's ability to meet those requirements of the
clearance order is limited to two affidavits. One of those, made in
Italy on September 17, 1963, by a person who describes himself as a
cabinetmaker, states that Francesco Coscia worked for affiant from
"earliest years in the capacity of cabinetmaker, furniture maker and
designer,' and left in September 1960 "because he was emigrating to the
Argentine.' The other affidavit, dated October 25, 1963, is in the
Spanish language, on the stationery of, and signed by, Adolfo Lesnik,
manufacturer of all styles and sizes of china cabinets, chests, book
cases and store fittings, Cordoba, Argentina, and certifies that
Francesco Coscia "has been working in my manufacturing plant from
December 1, 1960, to May 20, 1963, in the capacity of specialized
cabinetmaker, executing his work exclusively by hand.' These affidavits
fall considerably short of establishing beneficiary's ability to perform
the specific duties as set out under the job summary of the clearance
order in this case.
Beneficiary is a native and citizen of Italy, age 25, married. His
wife, also a citizen of Italy, is a lawful permanent resident of the
United States, and the couple has one child born in this country on June
9, 1964. On February 4, 1963, during routine search operations,
investigators of this Service found this beneficiary employed, in
violation of his status as a visitor, as a punch press operator in a
plastics factory. He had entered this country at New York, New York, on
January 12, 1963. On being granted permission to do so he departed
voluntarily for Argentina on February 25, 1963, and again entered the
United States on May 14, 1963, at Miami, Florida, as a visitor destined
to Long Island, New York. He was married here on July 7, 1963, and is
also the beneficiary of an approved petition according him third
preference quota status as the husband of a lawful permanent resident.
He is presently employed by the petitioner.
In his brief and oral argument on appeal the attorney complains that
the petition, filed on February 12, 1964 and supported by the clearance
order and the two affidavits described herein, was denied seven months
later, solely on a finding that the documentation was deficient without
affording the interested parties an opportunity to overcome any items
considered inadequate. The attorney also points out that because of
this lapse of time the clearance order is about to expire.
From a careful examination of the record in this case we fail to find
justification for delaying further action on this petition to afford
petitioner an opportunity to attempt to amplify the evidence relating to
the beneficiary's past experience as a cabinetmaker. The evidence so
far furnished seems to be from the only two persons who employed him in
the cabinetmaking field. The affidavit from his employer in Argentina
clearly states that beneficiary's work there was executed exclusively by
hand. The clearance order calls for a person with experience on machine
cabinetmaking tools. The affidavit from beneficiary's Italian employer,
being in vague general terms, is considered wholly inadequate to support
beneficiary's alleged ability to meet the requirements of the clearance
order.
We find, therefore, that petitioner has failed to establish that the
beneficiary's past experience meets the requirements of the clearance
order. The denial will be affirmed.
It is ordered that this appeal be and the same is hereby dismissed.
The mere making of a misrepresentation by an alien to a United States consular officer abroad in obtaining a visa for entry into this country is an important element for consideration in any subsequent application for adjustment of status under section 245, Immigration and Nationality Act, as amended. (See also, Matter of Garcia-Castillo, Int. Dec. No. 1335.)
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1252(a)(2) --
Visitor. remained longer.
Respondent asks that the Board reconsider its decision denying his
application for adjustment of status to that of a permanent resident
under section 245 of the Act (8 U.S.C. 1255 (Supp. IV)); in the event
the Board affirms its denial, counsel requests that the case be
certified to the Attorney General for review.
Respondent, 24-year-old single male, a native and citizen of Peru,
applied in Peru for a visitor's visa to the United States. He presented
to the United States consul a letter from his employer stating he had
quit his job because the pay was poor and he was planning to go to the
United States; the consul refused to issue a visitor's visa. Through
the services of a travel agent, the respondent obtained a letter from a
doctor indicating that the respondent was going to the United States for
rest and treatment. In fact, the respondent was no a patient of the
doctor, was not ill, and was without intention of seeking treatment in
the United States. On the strength of the letter, the respondent
obtained a temporary visitor's visa although he then intended to remain
in the United States permanently through adjustment of his status under
section 245 of the Act as had some of his friends. Believing the
adjustment was a simple matter which would take a little time, he
anticipated obtaining work shortly after his entry.
Respondent was admitted to the United States on June 13, 1963 as a
visitor and was authorized to remain to July 15, 1963. Shortly after
arrival he began to work a day a week; he then learned that it was
unlawful for him to work in the United States. On September 16, 1963,
he submitted his application for adjustment of status under section 245;
on September 22, 1963, he obtained full-time employment; on October 2,
1963, he was interviewed in connection with his application for
adjustment of status and denied that he was working; on November 15,
1963, he voluntarily informed the Service that he had not told the truth
about employment; on November 26, 1963, respondent's application for
adjustment of status was denied by the District Director (the reason for
the refusal is not shown in the file) and respondent was given until
December 26, 1963 to depart voluntarily; the respondent remained upon
the advice of his attorney in order to obtain an adjudication of the
application for adjustment of status by a special inquiry officer.
On January 29, 1964 an order to show cause was issued charging the
respondent with being deportable upon the ground stated above; in the
following month a deportation hearing was held. The special inquiry
officer granted the application for adjustment of status. To the
special inquiry officer, it appeared that Matter of Barrios, Int. Dec.
No. 1264, implied that the bona fides of a visitor from a nonquota
country was not a material matter; therefore, and because the
respondent had testified with candor, and because it appeared he would
make a desirable resident the special inquiry officer granted the
application.
The trial attorney took an appeal from this grant on the ground that
it would encourage evasion of consular functions and disregard for the
immigration laws; the trial attorney further pointed out that the
respondent had taken unauthorized employment, that he had falsely
testified before an immigration officer, that he had no close family
ties in the United States, and that his mother, brothers and sisters
were in Peru. The Board sustained the appeal of the trial attorney and
ordered the application for adjustment of status denied as a matter of
discretion, stating that respondent had flagrantly disregarded lawful
visa procedures, and that he had not been a bona fide nonimmigrant.
Counsel filed the present motion; in support of it we have considered
his letter of July 13, 1964 addressed to the Attorney General and in
opposition we have considered the brief dated August 31, 1964 from the
trial attorney.
Counsel is of the belief that the Board's action is inconsistent with
Matter of Martinez-Lopez, Int. Dec. No. 1312. Martinez-Lopez concerned
a native and citizen of Mexico who in applying for an immigrant visa,
and to satisfy the request of the counsel that he furnish an offer of
employment, supplied a letter which he knew did not represent an actual
offer of employment; the Service sought to deport him as one who had
procured his visa by fraud or wilful misrepresentation. To sustain this
charge, the Service had to establish that the fraud or misrepresentation
was a "material one': one concealing a ground of inadmissibility or
cutting off a relevant line of inquiry which might have resulted in a
proper determination that the alien was inadmissible. The only possible
ground of inadmissibility suggested, was the likelihood that the alien
might become a public charge. The Attorney General held that the
evidence in the deportation proceeding established that the alien would
not have been inadmissible as a person likely to become a public charge
and that there was nothing in the regulations of the Department of State
which would have prevented the issuance of an immigrant visa to the
respondent.
Counsel's point is that the respondent here made a representation
which in its character is essentially like the one made by
Martinez-Lopez: both misrepresentations were made to obtain permanent
residence in the United States, both were made because the aliens would
otherwise have been denied visas upon an "improper determination that
they were likely to become public charges.' The distinction we see is
that in Martinez-Lopez the making of the misrepresentation was not
important; what the misrepresentation concealed was important: in the
instant case the mere making of the misrepresentation is important.
Surely, when an alien applies for discretionary relief, the fact that he
lied before a United States official ought to be an important element
for consideration. And it might be one which weighed in light of the
means used, the purpose sought to be achieved, and the advantage gained,
could well determine the outcome of the case.
Counsel contends that American consular officers have instituted
unreasonable requirements (in violation of the State Department's own
regulations) as to the establishment by an alien of the fact that he
will not become a public charge, and that the impossibility of meeting
these demands together with the fact that the alien cannot appeal from
the denial of his visa, creates a frustration which drives aliens to
make misrepresentations in order to get their visas. It is
inappropriate for us to comment on this matter: it is one for the
attention of the Department of State.
Counsel suggests that many aliens obtain adjustment of status by
lying about the bona fides of their intentions to come to the United
States as visitors. Obviously, this charge is a matter of surmise on
the part of counsel. The procedure used in considering an application
for adjustment of status permits examination and cross-examination of
the alien under oath and requires a check of consular sources abroad.
The procedure is not an infallible one, however, it is the best that can
be devised to determine the truthfulness of an applicant's contentions.
Counsel contends that to deny respondent's application for adjustment
on the ground that he intended to seek permanent residence when he
entered, would be to read into section 245 a restriction which was
removed when Congress eliminated the requirement that only aliens
admitted as bona fide nonimmigrants were to be granted relief. The
short answer is that we did not find respondent statutorily ineligible
for relief, and that Congress did not eliminate the discretionary aspect
of the relief. After careful consideration of the record we find the
motion must be denied.
Counsel has requested that the Board certify this case to the
Attorney General for review if a decision unfavorable to the alien is
reached. We do not believe that the case presents an issue which
requires certification to the Attorney General.
ORDER: It is ordered that the motion for reconsideration be and the
same is hereby denied.
An exchange visitor alien (section 101(a)(15)(J)) who has been
granted a waiver of the foreign-residence requirement provided by
section 212(e), Immigration and Nationality Act, as amended, is eligible
for a change of nonimmigrant classification to that of a temporary
worker under section 101(a)(15)(H)(i) of the Act notwithstanding the
provisions of section 248 of the Act.
The applicant is a 45-year-old married male, a native and citizen of
Japan, who was last admitted to the United States on August 30, 1962, as
an exchange visitor. He has continued to maintain this nonimmigrant
status and now seeks to change his classification as an exchange visitor
to that of a temporary worker under section 101(a)(15)(H)(i) of the
Immigration and Nationality Act. A petition to classify his status as
such, filed by the United States Department of Agriculture, has been
approved. In addition, he has been granted a waiver of the two-year
foreign residence requirement for exchange visitors of section 212(e) of
the Immigration and Nationality Act, as amended, on the recommendation
of the Department of State pursuant to a request from the Department of
Agriculture.
The applicant qualifies in every respect for a change of his
nonimmigrant classification except for the apparent bar interposed by
section 248 of the Immigration and Nationality Act, as amended, by the
Act of September 21, 1961 (75 Stat. 535, P.L. 87-256) which provides:
The Attorney General may, under such conditions as he may
prescribe, authorize a change from any nonimmigrant classification
to any other nonimmigrant classification in the case of any alien
lawfully admitted to the United States as a nonimmigrant who is
continuing to maintain that status except an alien classified as a
nonimmigrant under paragraph (15)(D) of section 101(a), or an
alien classified as a nonimmigrant under paragraph (15)(C) or (J)
of section 101(a) unless he applies to have his classification
changed from a classification under paragraph (15)(C) or (J) to a
classification under paragraph (15)(A) or (15)(G) of section
101(a).
The applicant was admitted to the United States as an exchange
visitor under the provisions of section 101(a)(15)(J) of the Immigration
and Nationality Act, as amended, and is presently maintaining such
status; however, he has been granted a waiver of the two-year foreign
residence required for a change of status under section 212(e) of the
Immigration and Nationality Act. There remains to be considered whether
an alien who has an exchange visitor status, but who has been granted a
waiver of the foreign residence requirement, comes within the bar of
section 248 of the Immigration and Nationality Act, as amended.
The primary purpose of the Mutual Educational and Cultural Exchange
Act of 1961 is to promote understanding and good will by the mutual
exchange of persons between this country and other countries of the
world to observe and study, as well as to impart important knowledge.
In establishing this program, Congress contemplated that aliens would
employ in their own countries or in other participating countries the
knowledge and skills acquired here. In furtherance of the program
objective, exchange visitors are required to reside outside the United
States for two years before they are eligible to apply for an immigrant
visa, or for permanent residence or for a nonimmigrant visa under
section 101(a)(15)(H) of the Immigration and Nationality Act. To make
available the services of exchangees who possess talents desired by our
universities, foundations and other institutions, however, a provision
is made to permit the waiver of the foreign residence requirement on the
request of an interested United States Government agency. The applicant
has been granted a waiver pursuant to such a request.
In the Matter of Chien, A-10107638, Interim Decision No. 1307, the
Board of Immigration Appeals held that notwithstanding the provisions of
section 244(f) of the Immigration and Nationality Act, precluding the
adjustment of status through suspension of deportation of an exchange
visitor, such adjustment under section 244(a)(1) of the Act was
available to an exchange visitor with respect to whom the foreign
residence requirement of section 212(e), supra, had been waived. In
reaching this conclusion, the Board considered the fact that section
212(e), as amended, permits the issuance of a visa as well as the
granting of permanent residence to an exchange visitor with the required
waiver. They determined that since suspension of deportation was merely
one method of adjustment of status of an alien to that of a permanent
resident in addition to sections 245 and 249 of the Immigration and
Nationality Act, it was reasonable to deny adjustment of status to an
applicant for suspension of deportation who has the required waiver
while granting it to another under section 245 or section 249 of the
Act. The question to be resolved here with regard to the applicant's
eligibility for a change of his nonimmigrant classification is analogic
to the question resolved by the Board in favor of the respondent in the
case. Having been granted a waiver of the two-year foreign residence
requirement and being the beneficiary of an approved petition, he would
be eligible to apply to an American Consul for a nonimmigrant visa under
section 101(a)(15)(H)(i), supra, were be abroad.
Inasmuch as the applicant is no longer required to depart from the
United States and reside abroad for two years and by applying the same
logic as did the Board of Immigration Appeals in the above cited case,
it is reasonable to conclude the applicant is eligible to change his
nonimmigrant classification to that of a temporary worker and that the
provisions of section 248, which bar such change, do not apply in his
case. The application will, therefore, be granted.
ORDER: It is ordered that the application be and hereby is granted.
Application of a temporary visitor for a change of nonimmigrant
classification under section 248, Immigration and Nationality Act, to
that of a student is denied since it has not been satisfactorily
established that his father, whose net income combined with that of his
children approximates $336 per month, can provide adequate support to
maintain the applicant in his studies. Furthermore, applicant, who
initially indicated an interest in studying the English language and
electronics and who subsequently began to pursue a course in denial
technology, which he discontinued after a brief period of attendance,
has not established he is a bona fide nonimmigrant student.
This matter is before the Regional Commissioner on appeal from the
denial of the application for change of nonimmigrant status on the
ground that satisfactory evidence of support has not been furnished in
accordance with the requests of this Service.
The applicant is a married Chilean citizen, born in 1934 at Homs,
Syria. He was admitted to the United States at New York, New York on
January 5, 1964 as a temporary visitor for pleasure until March 5, 1964.
On February 19, 1964 he applied for change of nonimmigrant status to
that of a student for the stated purpose of studying English and
electronics. Accompanying the application was a Certificate of
Eligibility from the New School for Social Research in New York City
reflecting that the alien has been accepted for a course in the English
language. The cost of such schooling has been estimated at $2,604 for
the academic year.
On March 10, 1964 and again on July 29, 1964, the applicant was
requested to furnish evidence that his relatives in Chile would provide
the support necessary to maintain him as a student in the United States.
In the interim, the alien started attending the New York School of
Mechanical Dentistry to pursue a course in dental technology. A
Certificate of Eligibility dated May 11, 1964 has been submitted from
this school which reflects that the cost of such studies has been
estimated at $1,500 per academic year. The certificate further notes
that the course is given in Spanish although the applicant speaks very
good English. On September 28, 1964 the Registrar of the New York
School of Mechanical Dentistry informed this Service that the alien last
attended classes on June 29, 1964 and did not return for the fall term.
In connection with the appeal from the denial of this application
there has been submitted an affidavit by the alien's father executed on
September 2, 1964 before the United States Vice Consul at Damascus,
Syrian Arab Republic in which he states that he is Director of the Post,
Telegraph and Telephone Bureau in Hama, Syrian Arab Republic; that he
and his children have a net monthly income of 1,200 Syrian pounds; that
he is sending the applicant $150 to $200 a month to continue his
education in the United States.
The record in this case has been very carefully considered. We do
not find it has been satisfactorily established that the alien's father,
whose net income combined with that of his children amounts to
approximately $336 a month in American money, can adequately support the
applicant in his studies. Further, it is noted that the latter
initially indicated an interest in studying the English language and
electronics. He subsequently began to pursue a course in dental
technology and later discontinued these studies after a brief period of
attendance. In view of the foregoing, it is concluded that the alien is
not a bona fide nonimmigrant student but is merely attempting to prolong
his stay in the United States. Accordingly, the appeal will be
dismissed.
It is ordered that the appeal be and same is hereby dismissed.
An applicant for suspension of deportation who, following illegal entry into the United States in 1953, was absent therefrom for a brief visit of 4 or 5 hours to Mexico in 1959 during the statutory period of required continuous physical presence, thereby broke the continuity of such physical presence and, therefore, is statutorily ineligible for suspension of deportation under section 244(a)(1), Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at time of entry under section 212(a)(9) of the Act:
Burglary, Third Degree 8 U.S.C. 1182(a)(9)
The respondent, a native of Germany and last a citizen of Poland,
appeals from an order entered by the special inquiry officer on
September 21, 1964, directing his deportation to Poland on the charge
stated in the order to show cause. The order also provides that in the
event Poland refuses to accept the respondent he shall be deported to
Germany. Suspension of deportation under section 244(a) and a stay of
deportation under section 243(h) of the Immigration and Nationality Act
were denied. The appeal is directed to the denial of discretionary
relief.
The respondent, male, married, 53 years of age was lawfully admitted
to the United States for permanent residence in 1929. He was convicted
in 1935 in the State of New York for the crime of burglary, third degree
and sentenced to serve a term of two and a half months to five years in
the State Penitentiary. He served two years of that sentence and was
deported from the United States on November 4, 1937, on the charge that
he admitted committing a crime involving moral turpitude.
The respondent reentered the United States illegally without
inspection in 1953 and has resided in the United States since that
entry. He last entered the United States in 1959 after a brief visit to
Mexico. The finding of deportability is based upon the respondent's
last entry in 1959 after a temporary visit of four or five hours in
Mexico.
The respondent has applied for suspension of deportation under
section 244(a)(1) of the Immigration and Nationality Act. The special
inquiry officer finds that the respondent is not statutorily eligible
for suspension of deportation under section 244(a)(1) for the reason
that he has not been physically present in the United States for a
continuous period of not less than seven years due to the fact that the
respondent made a brief visit to Mexico in 1959. The special inquiry
officer concludes that the "casual visit' doctrine laid down by the
Supreme Court in the case of Rosenberg v. Fleuti, /1/ is not applicable
to respondent's case because he has not had a lawful entry. The special
inquiry officer relies on the Board's decision in Matter of Wong, Int.
Dec. No. 1334, BIA, April 22, 1964.
Counsel urges error in the special inquiry officer's conclusion. He
reasons that section 244(a)(1) does not contain any requirement that an
alien must be lawfully admitted into the United States as a condition
precedent to the exercise of discretion. He maintains that the Board's
opinion of July 15, 1963, directing a reopening of this proceeding to
permit application for suspension of deportation, states in substance
that the special inquiry officer should consider the principles laid
down in the Fleuti case (supra) relative to Fleuti's brief absence from
the United States as applying to respondent's brief absence of several
hours in Mexico while attending a bull fight. It is undisputed that but
for the visit of several hours in Mexico the respondent would meet the
seven-year continuous presence requirement of the statute.
Before considering the merits of whether Fleuti is applicable in the
instant case we wish to point out that our decision of July 15, 1963,
merely calls the attention of the special inquiry officer to the Supreme
Court's recent decision (June 1963) on the issue of a "casual visit' to
Mexico. We stated "while that decision (Fleuti) is concerned primarily
with the definition of "entry,' the special inquiry officer may consider
that it also affects respondent's eligibility for a grant of suspension
of deportation.' There is nothing in our decision which requires the
special inquiry officer to accept the "casual visit' doctrine as
applicable to the respondent's case.
The issue before us concerns whether the respondent's departure to
Mexico in 1959 and reentry into the United States after a "causal visit'
in Mexico of four or five hours duration interrupts the continuous
presence requirement of section 244(a)(1) of the Immigration and
Nationality Act. The case of Rosenberg v. Fleuti (supra) interpreted
the term "entry' as defined in section 101(a)(13) as "any coming of an
alien into the United States, from a foreign port or place . . . except
that an alien having a lawful permanent residence in the United States
shall not be regarded as making an entry into the United States for the
purpose of the immigration laws if the alien proves to the satisfaction
of the Attorney General that his departure to a foreign port or place .
. . was not intended by him . . .' Inasmuch as Fleuti had been admitted
to the United States as a lawful permanent resident before his brief
visit to Mexico, the Supreme Court extended the intent exception of
section 101(a)(13) to cover a brief, casual trip to Mexico and ruled
that Fleuti had not made a "meaningful departure' disruptive of his
physical presence in the United States.
The key words in the definition of the term "entry' which made the
intent exception applicable to Fleuti are "any alien having a lawful
permanent residence in the United States.' Fleuti was a lawful permanent
resident of the United States at the time he made his casual visit to
Mexico. This respondent was not. He entered the United States
illegally without inspection in 1953 after having been deported in 1937.
He is not within any of the exceptions set forth in section 244(b) and
since the record establishes that he has been absent from the United
States within the seven-year period preceding his application for
suspension of deportation we find that he is ineligible for suspension
of deportation under section 244(a)(1) of the Immigration and
Nationality Act.
Counsel in the alternative seeks a temporary stay of the respondent's
deportation pursuant to the provisions of section 243(h) of the
Immigration and Nationality Act. The special inquiry officer concludes
that the respondent has not met the burden of proving that he would be
subjected to physical persecution if deported to Poland or Germany. We
affirm the conclusion of the special inquiry officer in this regard.
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
(1) 83 Supreme Court 1804, 374 U.S. 449 (1963).
(1) Respondent, who did not have pending on the effective date of the Immigration and Nationality Act an application for seventh proviso relief, is now ineligible for a nunc pro tunc waiver of such relief since the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended, neither conferred status nor conveyed rights and, therefore, did not come within the savings clause (section 405(a)) of the 1952 Act.
(2) Respondent, who, following deportation in 1962, was absent from the United States for two weeks during the statutory period of required continuous physical presence, broke the continuity of such physical presence and, therefore, is ineligible for suspension of deportation under section 244(a)(1) of the 195; Act, as amended.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Entered with out inspection.
This is an appeal from the order of the special inquiry officer
finding respondent deportable on the ground stated above and denying his
applications for relief except the one for voluntary departure. The
appeal will be dismissed.
Respondent, a 35-year-old married male, a native and citizen of
Mexico, believes he is eligible for the legalization of his entry
because of his long residence in the United States. His residence,
started by illegal entry in 1944, was interrupted by his deportation in
July 1953; it was resumed by his illegal return about August 1953, and
except for a short visit to Mexico in 1955 and in 1957 was maintained
until he was deported on March 8, 1962. About two weeks later he again
entered illegally. His wife, a United States citizen residing in the
United States whom he married in 1961, sought her Congressman's help in
obtaining legal residence for the respondent. In August 1962, the
Congressman advised her by telegram to have respondent proceed
immediately to the American Consulate in Mexico. Respondent apparently
followed the advice and for about the next eight months stayed in Mexico
apparently in the hope of obtaining a visa. The American Consul
ultimately denied respondent's application for a visa, apparently
finding that his conviction in 1951 for assisting the unlawful entry of
Mexican nationals brought him within section 212(a)(31) of the Act which
makes ineligible for the issuance of a visa, an alien who for gain
encouraged another alien to come to the United States illegally; the
respondent returned illegally on May 3, 1963 to join his family. On
November 19, 1963 he was convicted for having entered the United States
without permission after having been deported. In the present
deportation proceedings, respondent is charged with being deportable as
one who had entered the United States without inspection on May 3, 1963.
Respondent admitting that he is deportable as charged, but pointing
to his domicile in the United States since 1944, to the extreme hardship
deportation would bring to him, his wife and his children who are all
dependent upon him, and pointing to the fact that he is a responsible
self-employed member of the community, urges that his stay be legalized.
He believes several laws exist under which this legalization can be
accomplished.
We do not believe the respondent is eligible for relief under any of
the laws relied upon. The first contention couples section 212(c) of
the Act and its predecessor, the 7th proviso to section 3 of the Act of
February 5, 1917. Section 212(c) of the Act authorizes the admission of
an inadmissible alien returning to a lawful residence; the 7th proviso
authorized the same relief (except as to documentary grounds) to an
alien with seven years' residence whether the residence was lawful or
not. Counsel contends that respondent had been eligible for relief
under the 7th proviso, that he, therefore, had a right which was saved
by section 405(a) of the Immigration and Nationality Act and that the
7th proviso can now be used to legalize his residence as of December 24,
1952 when the Immigration and Nationality Act took effect. The
contention continues: Respondent's residence having thus been
legalized, he is eligible for relief under section 212(c) of the Act and
by virtue of its provisions can be considered as having been lawfully
admitted upon the occasion of each of his returns from Mexico and,
therefore, considered not deportable. The contention must be rejected.
Even if 7th proviso relief could be granted nunc pro tunc, it would not
be of avail to respondent because it could not cure the lack of
documents which made him inadmissible to the United States on the
occasion of each of his entries (Matter of L , 4 I. & N. Dec. 463).
Moreover, respondent had no application pending under the 7th proviso
during the time it was in existence; the 7th proviso itself conveyed no
rights and conferred no status; it, therefore, did not come within the
savings clause (Cadby v. Savoretti, 256 F.2d 439 (5th Cir., 1958)).
Since respondent is not a lawful resident of the United States he could
not be granted relief under section 212(c) of the Act.
On August 11, 1964, the special inquiry officer considered
respondent's application for suspension of deportation under section
244(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1254(a)(1),
Supp. V) and denied it on the ground that the respondent who had been
outside the United States for two weeks after his deportation on March
8, 1962, on visits to Mexico in 1955 and 1957, and from August 1962 to
May 1963, could not establish, as he was required to by the Act, that he
had "been physically present in the United States for a continuous
period of not less than seven years immediately preceding the date' of
his application. In denying the application, the special inquiry
officer followed the Board's rule that any voluntary absence destroys
the continuity of residence required by the statute. Counsel, however,
contends that the respondent's departures from the United States did not
interrupt the continuity of his physical presence as that term is
defined in the case of Wadman v. Immigration and Naturalization Service,
329 F.2d 812 (9th Cir., 1964).
Whether or not the Wadman rule applies to one like the respondent
whose original entry was unlawful has not been clarified; however,
assuming that an alien could come within the Wadman rule although he
entered illegally, we do not believe the respondent can profit thereby
because his absence in 1962 was the result of a deportation and we do
not believe that Wadman can be extended to include such an absence. The
Supreme Court, considering the effect of an absence under an order of
deportation, of one who returned and applied for discretionary relief
which required him to establish that he had resided "continuously' in
the United States for a certain period, stated "* * * one who has been
deported does not continue to have his residence here, whatever may be
the significance of other factors in the absence of a valid deportation.
* * * It would be quite impossible to consider that a deported alien,
whose reentry into this country within a year of deportation would be a
felony, nevertheless continues to reside in this country.' Mrvica v.
Esperdy, 32 L.W. 4289, 4291-2, March 30, 1964.
The pivotal nature of the 1962 deportation has brought it under
attack by counsel. Counsel contends that there was a lack of due
process in the deportation proceeding in that the respondent was not
advised of his right to apply for discretionary relief. The regulation
required the special inquiry officer to inform an alien of his
"apparent' eligibility to apply for relief (8 CFR 242.17). We do not
have a copy of the hearing which resulted in the deportation order of
March 8, 1962; however, even if counsel is right that respondent was
not notified of suspension of deportation, we would not find that
serious error was committed because there was no obligation upon the
special inquiry officer to inform the respondent who appeared to be
ineligible for suspension of deportation at that time. Prior to the
decision in Wadman on March 26, 1964 it was the rule that an alien who
had voluntarily left the United States temporarily could not be
considered as physically present in the United States for the continuous
period required for suspension of deportation (Arrellano-Flores v. Hoy,
262 F.2d 667 (9th Cir., 1958); see Montalban v. Rogers, 262 F.2d 923
(CADC, 1959); U.S. ex rel. Bruno v. Sweet, 133 F.Supp. 3, 6-7, W.D. Mo.
(1955), aff'd without passing on point 235 F. 2d 801 (8th Cir., 1956)).
At the time of the hearing, respondent having been absent from the
United States on three occasions in the ten-year period for which he
would then have to establish continuous physical presence (sec.
244(a)(4) of the Act; 66 Stat. 214) one absence having been the result
of a deportation (1953) was not considered eligible for suspension of
deportation. Since there was no apparent eligibility, there was no
obligation on the part of the special inquiry officer to inform the
respondent of the right to apply for suspension of deportation.
Respondent has failed to establish he is eligible for relief which
will permit him to remain in the United States.
Respondent takes issue with the special inquiry officer's denial of
his application for permission to reapply for admission to the United
States after arrest and deportation. The special inquiry officer has
pointed out the grant of relief would be a useless gesture since the
respondent is ineligible for the issuance of a visa. The application
was properly denied.
Since the consul refuses to issue a visa to respondent and since he
is ineligible for adjustment under the immigration laws, it would appear
that only Congress, if it so desires, can help respondent adjust his
status to that of a lawful permanent resident.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Application for permission to reapply for admission, pursuant to
section 212(a)(17), Immigration and Nationality Act, is denied, in the
exercise of discretion, to an alien convicted of a law relating too
illicit traffic in marijuana (26 U.S.C. 4744(1)), since he is
mandatorily excludable from the United States under section 212(a)(23)
of the Act and no purpose would be served in granting the application.
This case is before the Regional Commissioner on appeal from the
District Director's decision denying the application as a matter of
discretion.
The applicant is a 51-year-old male, a native and citizen of Mexico.
He is married to a native and citizen of Mexico who resides in Mexico.
The applicant has no children.
The applicant was last deported from the United States on January 2,
1962 at El Paso, Texas under the provisions of section 241(a)(11) of the
Immigration and Nationality Act in that "he at any time has been
convicted of a violation of any law or regulation relating to the
illicit traffic in marihuana. (26 U.S.C. 4744(1)).' The record in this
case contains a record of criminal proceedings wherein the applicant was
convicted and sentenced in the United States District Court at El Paso,
Texas for violation of 26 U.S.C. section 4744(1), in that he was a
transferee of a quantity of marijuana without paying the tax thereon as
required by law, and as a result of such conviction was on December 15,
1961 sentenced by the court to a term of two years imprisonment, and the
execution of the sentence was suspended for a period of two years, the
defendant (applicant) being placed on probation for that term.
As the applicant is mandatorily inadmissible to the United States
under the provisions of section 212(a)(23) of the Immigration and
Nationality Act as one who has been convicted of a law relating to the
illicit traffic in marijuana (26 U.S.C. 4744(1)), no purpose would be
served in granting his application for permission to reapply for
admission into the United States. Accordingly, the District Director's
action in denying the application as a matter of administrative
discretion was proper and the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Adjustment of status under section 245, Immigration and Nationality
Act, as amended, is denied, in the exercise of discretion, to an alien
who, with a preconceived intention to establish permanent residence in
this country, sought and gained entry into the United States as a
nonimmigrant visitor, since the bona fides of the alien in securing his
nonimmigrant visa is a persuasive factor in considering the exercise of
such discretion.
DISCUSSION: The applications have been denied by the District
Director, New Orleans, Louisiana, who has certified his decisions in
these cases to this office for review. The applicants, natives and
citizens of Guatemala, are a man, his wife and their unmarried, minor
child. Being a family group, the cases will be considered together.
The applications were denied in the exercise of the Attorney
General's discretion because at the time the applicants obtained their
nonimmigrant visas from the American Consul in Guatemala City,
Guatemala, and at the time of their admission into the United States on
March 5, 1964 as nonimmigrant visitors for pleasure, they intended to
apply for permanent residence in this country and to make their home
here.
When interviewed by an officer of this Service on April 1, 1964
concerning their applications for permanent residence in the United
States, the adult applicants stated under oath that, although they told
the American Consul when applying for their nonimmigrant visas that they
were coming to the United States on a visit, it was their actual
intention to come here for permanent residence. They explained in the
interview that they had done this on the advice of a relative in this
country and because it takes too long to obtain immigrant visas in
Guatemala. In his brief in answer to the notice of denial, the
principal applicant states that at the time he and his family applied to
the American Consul for their nonimmigrant visas "there was no fixed
intention on my part to stay away from Guatemala City, but there was
hope that when I got to the United States I might find circumstances to
permit me to become a permanent resident in the United States.'
The applicants' statements to the Service officer when interviewed
are so completely frank and in detail with respect to their true
intention in coming to this country that, notwithstanding the brief, it
is clear they planned to remain here permanently and that their
applications for permanent residence were filed in furtherance of such
plan which was conceived prior to their arrival in the United States,
and, indeed, prior to their applications for their nonimmigrant visas.
While there is no statutory bar to the approval of these
applications, the bona fides of the applicants in obtaining their
nonimmigrant visas and in gaining admission into the United States are
persuasive factors is considering the exercise of the Attorney General's
discretion. The method used by the applicants to seek permanent
residence in this country indicates their wilful disregard for
visa-issuing procedures which cannot be ignored or condoned. The
applications do not, therefore, warrant the favorable exercise of
discretion, and they were properly denied. Accordingly, the District
Director's decisions will be approved.
ORDER: The decisions of the District Director denying the
applications are approved.
Notwithstanding that respondent acted in good faith and made a full disclosure of all the facts at the time of her application for a United States passport, the erroneous issuance to her of such a passport by an official of the U.S. Government does not bestow citizenship on her when she did not acquire U.S. citizenship at birth abroad under any statute, and she is deportable as an alien who was excludable at the time of entry.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at time of entry -- immigrant -- no visa.
Respondent is 33 years old, married, female, a native and citizen of
Portugal. She was admitted to the United States on June 29, 1961, as a
United States citizen in possession of a United States passport issued
to her at Lisbon, Portugal on May 16, 1961. The special inquiry officer
found that respondent is not a United States citizen, that she was not
entitled to a United States passport, that she was not in possession of
a valid, unexpired immigrant visa, and that she is deportable. He found
that she is not eligible for any form of discretionary relief except
voluntary departure, that she declined to apply for voluntary departure,
and he ordered her deported from the United States to Portugal on the
charge set forth above. She appeals from this order. The appeal will
be dismissed.
Respondent claims United States citizenship through her mother who
was Maria dos Anjos Morris. This woman was born in New Bedford,
Massachusetts on September 3, 1901. Maria Morris (or Mauricio) was
married on November 20, 1916, in New Bedford, Massachusetts to Paulo
Amado, a native of Portugal, who never became a United States citizen.
Shortly after their marriage Maria Morris and Paulo Amado went to Brazil
to live. After seven years Paulo Amado returned to Portugal, and Maria
Morris joined him in Portugal a year later. Paulo Amado divorced Maria
in March 1932.
Respondent was born in Portugal on May 6, 1931. Her father was Luiz
Amado, who was no relation to her mother's husband. Respondent
testified that her parents were never married. Maria Morris Amado
married again in Portugal around 1942 and was divorced from her second
husband two years later. The record establishes that Maria
(respondent's mother) never returned to the United States to live and
never made any effort or took any steps to resume her United States
citizenship. She returned once to the United States for a visit, for
perhaps "a couple of months', following which she returned to Brazil.
Respondent testified that her mother never resumed residence in the
United States after her marriage in 1916. (Statement, August 27, 1962,
p. 3.)
Respondent's natural father, Luiz Amado, was never in the United
States and was not a United States citizen. The Vice Consul at the
United States Consulate at Lisbon, Portugal granted respondent's
application for a United States passport on the ground that she acquired
citizenship at birth as the illegitimate child of an American mother
under section 205 of the Nationality Act of 1940. /1/ The District
Director at Boston, the Regional Commissioner at Burlington, Vermont,
and the special inquiry officer in the instant proceedings, all have
found as follows: Under section 3 of the Act of March 2, 1907, /2/
Maria Morris Amado, respondent's mother, lost her citizenship when she
married in 1916. The Act of 1907 was repealed by section 7 of the Act
of September 22, 1922, /3/ but Maria Morris Amado took no step toward
resuming her citizenship under the Act of September 22, 1922. She was
still married to an alien and was still living abroad. However, she
recovered her citizenship at the time of the passage of the Act of June
25, 1936, /4/ because by that time her marital status had terminated;
even though she maintained her residence abroad the Act of June 25, 1936
automatically restored her United States citizenship. Matter of P , 1
I. & N. Dec. 127 (BIA, June 26, 1941; A. G., November 22, 1941).
However, restoration of United States citizenship to Maria Amado was of
no benefit to respondent, born in 1931, because the Act of June 25, 1936
is prospective and not retrospective. It does not change the fact that
respondent's mother was an alien at the time of respondent's birth in
1931. We find no ground to disagree with this conclusion.
The Act of May 24, 1934 /5/ was the first statute to extend United
States citizenship to children born out of wedlock to United States
citizen mothers abroad. 39 Op.Atty.Gen. 397 (1939) stated there was no
objection to the issuance of instructions to consular officers that
illegitimate children born abroad of American mothers before the
amendment of May 24, 1934, became effective, could not possibly be
regarded as citizens of the United States under R.S. 1993. The Court
points out in Montana v. Kennedy, 366 U.S. 308 (U.S. 1961), that when
Congress amended R.S. 1993 by the Act of May 24, 1934, to grant
citizenship rights to the foreign born children of citizen mothers,
Congress "made clear its view that this was a reversal of prior law'.
This enactment, of course, is of no help to respondent, because she did
not begin to reside permanently in the United States during her minority
(see /5/ ).
Respondent's only plea is that she made a full disclosure of all
facts at the time she applied for her passport and was not guilty of any
fraud. She was granted an American passport by a representative of the
State Department, and she acted in good faith. She testified that she
sold three houses she owned in Portugal in order to get the money to
come to the United States and had suffered substantial loss by
liquidation of these assets. She states further that she is suffering
from a heart condition and has been hospitalized recently.
The board recognizes the harshness of the decision and the hardship
of deportation under these circumstances. However, the error of an
employee in the State Department in erroneously issuing a United States
passport does not bestow United States citizenship on an alien who is
not entitled to it. We do not find that the government was guilty of
such misconduct as to be estopped from now denying the effect of the
passport. In Montana v. Kennedy, supra, the Court recognized the
harshness of the result where the petitioner was born in Italy of a
United States citizen mother in 1906 and returned to the United States
the same year. He resided in the United States for 55 years, but the
court held that he derived no United States citizenship from his mother
under any statute. That decision is controlling here. There have been
cases which held the United States estopped from denying citizenship
because of the conduct of its officials, but the conduct of the State
Department here does not reach that degree of error. The appeal must be
dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.
(1) Sec. 205 of the Nationality Act of 1940 provides:
The provisions of Section 201, subsections (c), (d), (e) and (g), and
Section 204, subsections (a) and (b), hereof apply, as of the date of
birth, to a child born out of wedlock, provided the paternity is
established during minority, by legitimation, or adjudication of a
competent court.
In the absence of such legitimation or adjudication, the child,
whether born before or after the effective date of this Act, if the
mother had the nationality of the United States at the time of the
child's birth, and had previously resided in the United States or one of
its outlying possessions, shall be held to have acquired at birth her
nationality status. 54 Stat. 1139-1140; 8 U.S.C. 605.
(2) Sec. 3 of the Act of March 2, 1907 provides: That any American
woman who marries a foreigner shall take the nationality of her husband.
At the termination of the marital relation she may resume her American
citizenship, if abroad, by registering as an American citizen within one
year with a Consul of the United States, or by returning to reside in
the United States, or, if residing in the United States at the
termination of the marital relation, by continuing to reside therein.
(3) Sec. 7 of the Act of September 22, 1922: That Section 3 of the
Expatriation Act of 1907 is repealed. Such repeal shall not restore
citizenship lost under such section nor terminate citizenship resumed
under such section. A woman who has resumed under such section
citizenship lost by marriage shall, upon passage of this Act, have for
all purposes the same citizenship status as immediately preceding her
marriage.
(4) Act of June 25, 1936: * * * That hereafter a woman, being a
native-born citizen, who has or is believed to have lost her United
States citizenship solely by reason of her marriage prior to September
22, 1922, to an alien, and whose marital status with such alien has or
shall have terminated shall be deemed to be a citizen of the United
States to the same extent as though her marriage to said alien had taken
place on or after September 22, 1922 * * *.
(5) Act of March 2, 1907, as amended by the Act of May 24, 1934
provides: Sec. 5. That a child born without the United States of alien
parents shall be deemed a citizen of the United States by virtue of the
naturalization of or resumption of American citizenship by the father or
the mother: Provided. That such naturalization or resumption shall
take place during the minority of such child; and provided further.
That the citizenship of such minor child shall begin five years after
the time such minor child begins to reside permanently in the United
States. (48 Stat. 797; 8 USC 8)
Adjustment of status under section 245, Immigration and Nationality
Act, as amended, is denied, in the exercise of discretion, where
applicant made no effort to legally terminate his first marriage entered
into in Colombia by religious ceremony which, while not civilly
recorded, is regarded as a valid marriage, prior to entering into a
second marriage in the United States in 1960 with a third party with
whom he has since lived in a husband-wife relationship.
This matter has been certified to the Regional Commissioner for
review of the decision of the District Director denying the application
for adjustment of status.
The applicant is a 29-year-old married male native and citizen of
Colombia who last entered the United States at Miami, Florida on October
15, 1961 as a nonimmigrant visitor for pleasure. On November 1, 1961 he
submitted the instant application for status as a permanent resident
under section 245 of the Immigration and Nationality Act. The
application reflects that the alien has been married only once and that
he has no children. He bases his eligibility for nonquota status on his
birth in Colombia.
Subsequent to the filing of the application it was determined that
the alien had married Flor Angela Cortes in accordance with Catholic
rites at Bogota, Colombia on February 5, 1952. He later married M.
Xiomara Cuervo, a permanent resident alien, in Miami, Florida on October
20, 1960. The District Director found that the applicant was living in
a husband and wife relationship with his second spouse although his
first marriage had never been legally terminated. It was concluded,
therefore, that the application did not merit favorable discretionary
action and it was denied on April 19, 1962.
An appeal was taken from this denial in which it was argued that the
applicant's religious marriage in Bogota, Colombia was not legally
binding since it was not registered civilly. In support of this
position there was submitted a statement from a Bogota attorney which
stated in effect that in the absence of civil registry there is
insufficient evidence of the legality of an ecclesiastical marriage.
The case was thereupon remanded to the District Director for further
resolution of this issue. Additional inquiries elicited the following
information from the Hispanic Law Division of the Library of Congress.
The Civil Code of Colombia in force at the present time was
originally adopted in 1887, and has been amended over the years.
Article 19 of Law 57 states: "For all civil and political effects,
marriages celebrated according to the Catholic rites are valid.'
Similarly, Article 50 of Law 153 reads: "Marriages celebrated in the
Republic at any time, in accord with the Catholic rites, are legitimate
and from the moment of administering the sacrament, will be civilly and
politically effective.'
Article 17 of Law 35 of 1888 and Article 2 of Law 95 of 1890 are
concerned with the appointment of a civil official to attend the
religious ceremony for the purpose of verifying the recording of the
marriage in the civil register. The Resolution of the Minister of
Government, No. 8011, of 1890 states: "The lack of intervention by the
Notary or Municipal Secretary at the celebration of the Catholic
weddings does not void them; and they shall have civil effects.'
It was not until the enactment of Law 92 of 1938 that there was
created a system of civil registry in Colombia independent of
ecclesiastical registration. The provisions of Article 8 and Article 12
of Law 92 of 1938 are repeated in more detail in the regulation to this
law, adopted as Decree 1003 of 1939. In both pieces of legislation, it
is reflected that the entry in the civil register shall constitute prima
facie proof of the proceedings recorded and of the civil status.
Article 19 of Law 92 of 1938 further provides that in absence of civil
registration there are four types of secondary proof: (1) Certified
documents; (2) Church records; (3) Declaration of witnesses who were
present at the proceedings where the civil status was acquired; (4)
Notorious possession of said civil status.
Inquiries directed to the American Consul at Bogota, Colombia and the
Consulate General of Colombia at New York further substantiated that
there is no provision under Colombia Law for invalidation of a religious
marriage on the ground of lack of civil registration.
It has been established that the applicant married Flor Angela Cortes
in accordance with Catholic rites in the Parish of Nuestra Senora de Las
Aguas of Bogota, Colombia on February 5, 1952 as evidenced by a
certified copy of the entry in the marriage records of the parish. The
applicant has advised that he married Flor Angela Cortes, seven years
his senior, in a religious ceremony because he believed her to be
pregnant as a result of premarital relations. He claims, however, that
he never introduced her to anyone as his wife.
The record reveals that the alien stated in his application for a
nonimmigrant visa before the American Consul at Barranquilla, Colombia
on September 2, 1960 that he was married to Flor Angela Cortes.
Further, two children were born of this marriage, one on May 1, 1953 and
the other in 1954 or 1955. The marital relationship was maintained
until shortly before the birth of the second child, at which time they
separated. The applicant has admitted that he contributed to the
support of their two children on an intermittent basis until January of
1963.
The alien made no effort to legally terminate his first marriage
prior to marrying M. Xiomara Cuervo on October 20, 1960. He has since
lived with the latter in a husband and wife relationship and they have a
child who is now about one year old.
After careful consideration of all of the foregoing factors we find
that the District Director properly concluded that the instant
application for adjustment of status does not merit the favorable
exercise of discretion authorized by section 245 of the Act.
Accordingly, his decision will be affirmed.
It is ordered that the District Director's decision denying the
application as a matter of discretion be and same is hereby affirmed.
Petition to accord first preference quota status under section 203(
a)(1), Immigration and Nationality Act, as amended, as a sample stitcher
of ladies' garments is denied because beneficiary has not had a minimum
of 5 years' experience as such a stitcher as required by the clearance
order.
This petition, seeking first preference quota status for beneficiary
as a sample stitcher, was denied by the District Director on June 10,
1964. That denial is before us on appeal.
The clearance order from the Bureau of Employment Security furnished
in support of the petition calls for a person who has had a minimum of 5
years' all-round experience as a sample stitcher of ladies' garments.
That Bureau's Dictionary of Occupational Titles defines the position
of sample stitcher as follows: "Prepares sample garments, such as
dresses, pajamas, suits, or shirts, usually for use in making production
patterns: Cuts material according to a pattern or designer's sketch.
Drapes and fits garment on either a dress form or living model.
Performs hand and machine sewing to complete garment. Frequently
performs hand finishing and pressing.'
The petitioner is a manufacturer of expensive clothes for women.
Claim has been made that their dresses are sold at prices ranging from
$160 to $650 and that some of their coat, suit and dress ensembles
retail for as much as $1500. Pages from VOGUE magazine have been
furnished as evidence of the quality of petitioner's creations.
The beneficiary is a native and citizen of Jamaica, age 41, married.
She has been in the United States since her entry as a visitor on May 3,
1959. On August 20, 1960, she was granted status as a nonimmigrant
student to attend the Maison Sapho School of Dressmaking and Design for
which she had enrolled on February 16, 1960.
She received one extension of temporary stay to February 20, 1961, to
finish a course of 255 hours, another to July 31, 1961, to take a course
in draping, and a further extension to July 31, 1962, to study advance
designing, all at the same school. Her attendance there terminated on
June 20, 1962. In addition to the foregoing, Mrs. Alberga took a
course in dressmaking at Fashion Institute in New York from February to
June 1957 while here previously as a visitor.
Upon completion of her last course at the Maison Sapho School,
beneficiary applied for permission to engage in practical training with
the firm, Trigere, the petitioner in the matter now before us.
Beneficiary was granted permission to engage in two periods of such
training until July 15, 1963, and was informed that a request for
permission to remain beyond that date would not be favorably
entertained. The petition seeking to accord beneficiary first
preference immigration quota status was filed July 3, 1963, or at a time
when beneficiary was still in "practical training.'
As pointed out in the district director's notice of denial, inquiry
by a Service investigator at petitioner's place of business on February
27, 1964, disclosed that beneficiary was not engaged in pattern-making
or in the cutting of cloth from which sample garments were being made.
Instead, she was then found employed as one of a group of seven ladies
performing the sewing operations (both by hand and machine) on the
garments under production. While it was then stated that beneficiary
was experienced in pattern-making and cloth-cutting, she had done very
little of that work as those duties were performed by the supervisor of
the sample room. Of the seven ladies, including beneficiary, working on
the sewing operations, three were receiving a higher wage than
beneficiary.
Although beneficiary attended a dressmaking school in New York for
two and one-half years, and followed this with a year's practical
training, she alleges that she was a competent dressmaker in Jamaica
before coming here. This is supported only by her own affidavit, by a
letterhead and business card (both in the name "Hyacinth Alberga, Custom
Made Gowns, 5 Union Square, Room 3, Cross Roads, Jamaica, W. I.') and
two letters written in Jamaica in 1959 (one by the Chairman, Garment
Industry Group, Jamaica Manufacturers Association and the other by the
Secretary, Jamaica Industrial Development Corporation) introducing
Hyacinth Alberga as a dressmaker specializing in embroidered dresses who
was interested in making business contacts in the United States.
On appeal petitioner has submitted a letter dated September 11, 1964,
wherein the comptroller of the firm insists that beneficiary now earns a
salary of $90 a week and is engaged by them as a sample stitcher as that
term is applied to the tailoring industry. In that letter petitioner
insists that an on-premises inspection of their sample room at this time
would show that beneficiary is working as a sample stitcher.
We have carefully considered the entire record including oral
argument of counsel. The clearance order in this case calls for a
person who has had a minimum of five years' all-round experience as a
sample stitcher of ladies' garments. The evidence of record shows that
beneficiary was a student in dressmaking from February 1960 to July
1962, followed by practical training in that field for one year. We can
only conclude therefore that petitioner has failed to establish that
beneficiary has had the minimum of five years' all-round experience as a
sample stitcher as required by the clearance order. The denial will be
affirmed.
ORDER: It is ordered that this appeal be and the same is hereby
dismissed.
(1) Although beneficiaries, born of an adulterous relationship of their mother, may be considered to have 2 legal parents, because their mother is unable to provide care for them, her husband refuses to accept responsibility for their care and support since they are not his children, and they have been cast from the family circle because of the circumstances of their birth, they have been abandoned within the meaning of section 101(b)(6), Immigration and Nationality Act, as amended.
(2) Although a previous petition was approved for petitioners in
behalf of a child as defined in section 101(b)(1)(F), Immigration and
Nationality Act, as amended, the limitation imposed by section 205(c) of
that Act does not preclude the approval of 2 additional petitions in
behalf of eligible orphans who are twin sisters, since the separation of
the sisters would thereby be prevented.
DISCUSSION: The petitioners, citizens of the United States, were
married on March 23, 1957. No children were born of this union but on
March 19, 1963 they adopted a child, Michael, born in Italy on July 21,
1960, who was brought by the petitioners to the United States as an
eligible orphan on the basis of their petition approved by this office
on December 13, 1961. This child is not related by blood to the
beneficiaries of the petitions here considered. The Boston Children's
Service, affiliated with the International Social Service, is the
voluntary agency involved. The home study of the agency is favorable
and the agency has given assurance that the preadoption requirements of
the State of Massachusetts have been met. Investigation of the
petitioners by the Immigration and Naturalization Service is entirely
favorable. Overseas investigation of the mental and physical health of
the beneficiaries reveals no illnesses or defects.
The beneficiaries are twin sisters, born at Campobasso, Italy on
August 1, 1962 to Giovannina Del Conte as the result of her adulterous
union with their unnamed father. The beneficiaries have been
transferred from their mother's home to the physical custody of the
International Social Service, awaiting emigration, and have been
irrevocably released to the International Social Service by their mother
and her husband, Michele Del Conte, for emigration to the United States
and for adoption.
The report of the Officer in Charge of this Service at Rome and the
records of the International Social Service show that Giovannina Del
Conte has been married but once -- to Michele Del Conte, in Italy in
1953. From 1955 to 1960 Michele Del Conte lived in Venezuela while his
wife remained in Italy. During his absence, Giovannina Del Conte gave
birth in 1958 to a child, Maria, the offspring of an adulterous union.
Michele Del Conte returned to Italy in 1960 but did not rejoin his wife
owing to the circumstances of the birth of Maria. While these spouses
were still living apart, Giovannina Del Conte gave birth on August 1,
1962 to the twin beneficiaries as the result of another adulterous
relationship.
The overseas investigation shows further that Michele Del Conte is
residing in marital union with the mother of the beneficiaries but is
unwilling to support or care for them because they are not his children.
Under Italian law, the beneficiaries may well be regarded as the
children of Michele Del Conte in the absence of any legal action to
disclaim them. Michele Del Conte has not legally disavowed their
paternity but the record appears clear that they are not his natural
children.
The subject petitions were filed with a view to according the
beneficiaries nonquota status under the provisions of section 101(a)(
27)(A) of the Immigration and Nationality Act as "children' of a citizen
of the United States. Section 101(b)(1)(F) of the same Act defines the
term "child' to mean an unmarried person under 21 years of age . . ..
who is an eligible orphan, adopted abroad by a United States
citizen and spouse or coming to the United States for adoption by
a United States citizen and spouse: Provided, That no natural
parent or prior adoptive parent of any such child shall
thereafter, by virtue of such parentage be accorded any right,
privilege, or status under this Act.
Section 101(b)(6) of the Act defines an "eligible orphan' as:
Any alien child under the age of fourteen at the time at which
the visa petition is filed pursuant to section 205(b) who is an
orphan because of the death or disappearance of both parents, or
because of abandonment, or desertion by, or separation or loss
from, both parents, or who has only one parent due to the death or
disappearance of, abandonment, or desertion by, or separation or
loss from the other parent, and the remaining parent is incapable
of providing care for such orphan and has in writing irrevocably
released him for emigration and adoption.
Section 205(c) of the Act provides that . . ..
Not more than two such petitions may be approved for one
petitioner in behalf of a child as defined in section 101(b)(1)(
E) of (F), unless necessary to prevent the separation of brothers
and sisters.
The issues to be resolved here are: (1) Whether the beneficiaries
are eligible orphans within the meaning of the statute; and (2) May
these petitions be approved in light of the restriction contained in
section 205(c) since the petitions here discussed are the second and
third by the same petitioners?
These beneficiaries were living with their mother and presumably with
the latter's husband at the time of their release to the International
Social Service. Although they may be considered to have two legal
parents, they have been cast from the family circle because of the
circumstances of their birth. Their mother is unable to provide care
for them and her husband refuses to accept responsibility for their care
and support. It is clear that the repudiation of the beneficiaries as
children of the Del Conte family is as complete at it is tragic. Their
presence in the Del Conte household would be a continual irritant to
conjugal harmony and the fact that they have been thrust from the home
for the purpose of surrendering them for adoption 3,000 miles away is in
itself evidence of the finality of their rejection. This is not a
contrived situation, as has been encountered occasionally in other
cases, where the two parents have abandoned or surrendered a child to
another party for the purpose of enabling the child to qualify as an
eligible orphan in order to immigrate to the United States. The
beneficiaries are as completely orphaned by abandonment as a result of
the family circumstances as those children orphaned by death of their
parents. Therefore, we find the beneficiaries to be eligible orphans
within the meaning of this statute.
The remaining issue is whether the petitions may be approved in view
of the restriction of section 205(c) of the Act. The petitioners' first
orphan petition was approved for Michael Toupouzis, now their adopted
son. The second and third petitions by these petitioners are for the
twin beneficiaries. We are satisfied that these latters petitions come
within the exception to the restriction of section 205( c) and their
approval is warranted in order to prevent the separation of the twin
sisters.
ORDER: It is ordered that the visa petitions be approved.
Petition to accord nonquota status as a minister of a religions
denomination, pursuant to section 101(a)(27)(F). Immigration and
Nationality Act, is denied since the evidence fails to establish that
petitioner, The Vedic Society of America, Inc., is a bona fide religious
denomination or that beneficiary will be engaged solely in carrying on
the vocation of minister of a religious denomination because he will not
be paid a salary for his services as a minister and will be obligated to
seek full-time employment in another capacity in order to maintain
himself and his family.
This matter is before the Regional Commissioner on appeal from the
denial of the visa petition to classify the beneficiary as a nonquota
minister on the grounds it has not been established that the petitioning
organization is a bona fide religious denomination or that the
beneficiary has been and seeks to remain in the United States solely for
the purpose of carrying on the vocation of minister.
The beneficiary is a married citizen of India, born June 11, 1929 at
Pachahi, Bihar, India. He was admitted to the United States on
September 7, 1952 as a nonquota immigrant under section 4(e) of the
Immigration Act of 1924. He subsequently received Bachelor of Science
and Master of Arts degrees from the American University where he majored
in International Relations, a Master of Arts degree from Howard
University and a Doctor of Philosophy degree in Public Law and
Government from Columbia University. While studying in the United
States, the alien has been employed part time as an instructor in the
Hindi Language and Literature and as a teacher in International
Relations. He is married to a Swedish citizen temporarily in the United
States and they have two children, both born in New York City.
The petition which has been submitted in the beneficiary's behalf
reflects that the organization is devoted to the promotion of the
gospels of the Vedas, ancient religious scriptures of India. The
society was founded in 1958 by the alien who has been serving as its
minister. It was incorporated September 9, 1960 under the laws of the
state of New York as a nonprofit, non-denominational religious church
and organization. The petition states that the beneficiary, as
minister, will conduct religious services, lecture in the United States
on the doctrines of the Vedas and perform such rites as marriages and
christenings.
Inquiries conducted by this Service have disclosed that the
beneficiary's primary function is to teach religion and philosophy in
order to enable the members of the group to realize their full spiritual
and philosophical potential. The society's present membership numbers
less than twenty individuals. The organization imposes no restrictions
on its members belonging to any other religious denomination or
attending other churches. Meetings are held Friday evenings at the
Mount Vernon office of a physician who is Spiritual Director of the
society and Sunday evenings at the alien's home in New York City.
It was further ascertained that the petitioner owns a spiritual
retreat in Deerpark, Orange County, New York which was purchased in 1961
for $5,200. Its only income is the $10 annual dues received from each
member. No arrangements have been made for payment of a salary to the
beneficiary. During 1963, he received approximately $800 in love
offerings from the membership and from lectures in connection with the
society. His total earnings for the year 1963 amounted to $6,300, his
principal earnings being his salary as professor at Drew University.
The issues which are before us are (1) whether the petitioning
organization is a religious denomination within the contemplation of
section 101(a)(27)(F)(i) of the Immigration and Nationality Act and (2)
whether the beneficiary is a minister of a religious denomination within
the meaning of the statute. Section 101(a)(27) provides in part as
follows:
The term "nonquota immigrant' means --
* * * * * * *
(F)(i) An immigrant who continuously for at least two years
immediately preceding the time of his application for admission to
the United States has been, and who seeks to enter the United
States solely for the purpose of carrying on the vocation of
minister of a religious denomination, and whose services are
needed by such religious denomination having a bona fide
organization in the United States: . . .
In Matter of N , 5 I. & N. Dec. 173, there are set forth certain
guidelines which should be considered in arriving at a determination as
to whether the instant petitioner is a bona fide religious denomination
within the contemplation of section 101(a)(27)(F)(i). In declining
favorably in the cited case it was found that the petitioner therein has
been incorporated under the laws of many of the States in this countrv:
is a worldwide religious organization having a distinct legal existence;
has a recognized creed and form of worship; has a definite and
distinct ecclesiastical government; has a formal code of doctrine and
discipline; has a distinct religious history; has a membership, not
associated with any other church or denomination; has officers
ministering to their congregation, ordained by a system of its own; has
established places of religious worship; has religious congregations
and religious services; operates a Sunday school for the religious
instruction of the young, and schools for the preparation of its
ministers, who in addition to conducting religious services, perform
marriage ceremonies, bury the dead, christen children, and advise and
instruct the members of their congregations.
We find that the present petitioner differs in several essential
respects from the organization described in Matter of N , supra. Its
members may be associated with other religious denominations, there are
no prescribed standards for the selection, training and ordination of
its ministers, and the society does not have a distinct form of worship.
In further considering this matter, we note that the beneficiary's
ministerial functions have been and will continue to be very limited in
scope. Inasmuch as the petitioning organization is financially unable
to pay him a salary for his services as minister, he will be obliged to
seek full-time employment in another capacity in order to maintain
himself and his family.
After careful evaluation of the entire record in this case, we find
that the petitioner has failed to establish that it is a religious
deonomination within the meaning of section 101(a)(27)(F)(i) of the Act
and has failed to establish that the beneficiary will be engaged solely
in carrying on the vocation of minister of a religious denomination as
required by the statute. Accordingly, the appeal will be dismissed.
It is ordered that the appeal be and same is hereby dismissed.
Application for waiver, pursuant to section 212(g), Immigration and
Nationality Act, as amended, of excludability under section 212(a)(9) of
the Act is denied, in the exercise of discretion, in the case of an
alien who is at liberty under a sentence-imposed, 3-year good-behavior
bond, without prejudice to reconsideration upon the expiration date of
the bond required by the sentence imposed.
The applicant is a male, native of Barbados, subject of Great
Britain, born in Bridgetown on April 23, 1945. He has never been
married and has no children. His parents, Frank Vernon Barnes, A13 253
720, and Agnes Barnes, A13 253 643, are aliens who have been lawfully
admitted to the United States for permanent residence. Satisfactory
documentary evidence of their status and of his relationship to them has
been presented.
The applicant has never been in the United States and was found by
the consular officer to be eligible for a visa for permanent residence
in all respects except excludability under section 212(a)(9) of the
Immigration and Nationality Act.
In testimony before an officer of this Service on March 11, 1964, at
Bridgetown, Barbados, the applicant testified that his arrest was the
result of taking $3,800.00 which had been entrusted to his care by the
Canadian Imperial Bank of Commerce in Bridgetown. He stated that at the
time he was mixed up with a young woman employed an the bank and he took
the money in order that they could run away to Trinidad. As a result of
this act he was tried as an adult, found guilty and released under a
personal bond of $1,000.00, to be of good behavior for a period of three
years. At the time of his conviction the applicant was 16 years, 7
months of age. He testified that he has never committed any other act
or offense which might render him inadmissible to the United States or
subject him to criminal prosecution.
The applicant's mother was interviewed by a Service officer on
October 29, 1963, at New York City, New York. She corroborated her
son's statement relative to the incident which now bars him from the
United States. She stated that the real fault lay with a girl somewhat
older than her son who encouraged him to steal the money and run off
with her. She testified that the absence of her son was an extreme
hardship to her because of the emotional factor involved. She is of the
opinion that he needs to be with her and her husband in order that they
may help him and give the benefit of their affection and guidance. If
he is not permitted to come to the United States she says that she and
her husband will have no alternative but to return to Barbados and be
subject to the humiliation of living among people aware of her son's
crime.
The applicant's father was interviewed by a Service officer on March
11, 1964, in Bridgetown, Barbados. He testified that until recently he
was captain of his own vessel and the applicant worked for him aboard
the vessel up to November of 1963. He further testified that he
believed that he and his wife can keep the applicant straight and make a
good citizen out of him. He sincerely believes the boy has learned his
lesson and will not get into any more trouble. The extreme hardship to
the lawful alien parents as contemplated by the statute has been
established.
The crime committed by the applicant occurred November 1, 1961. The
sentence imposed placed him under bond to maintain good behavior for a
period of three years which will expire December 12, 1964. If he fails
to maintain his good behavior until that date, a breach of the
conditions of the bond will result, which could result in forfeiture of
the collateral and imprisonment.
Unless the applicant, by his behavior over a reasonable period of
time, had demonstrated that a waiver of his excludability is merited as
a matter of discretion and that his admission would not be contrary to
the national safety, security and welfare of the United States, the
waiver may not be granted. It must be recognized that a bond,
probation, parole or similar court-imposed disability places an
extraordinary burden upon the sentenced individual. Thus, in Jones v.
Cunningham, 371 U.S. 236 (1963) the United States Supreme Court stated
that "Conditions of parole significantly restrain petitioner's liberty
to do those things in this country free men are entitled to do.' The
Court held that a person on parole, though physically free, is under
strict control and is constantly threatened with return to custody for
minor infractions of the conditions of parole.
The applicant in the instant case is at liberty under a
sentence-imposed bond, which appears to be a somewhat lesser restraint
than parole. Nevertheless the threat of imprisonment for any breach of
the conditions of the bond hangs heavily over his head. While it would
be unreasonable to discount completely the good behavior of the
applicant during the period for which he has been under that restraint,
it is not unreasonable in this case to await the lifting of the
restraint imposed by sentence, in effect permitting the sentence to run
to completion, before exercising the discretion favorably in his behalf.
The applicant's behavior has been good since the commission of the
crime which renders him excludable. However it is concluded that, as a
matter of discretion, the waiver of excludability should not be granted
prior to December 12, 1964, the expiration date of the bond required by
the sentence imposed upon him. The application will be denied without
prejudice to reopening and reconsidering the application on our own
motion subsequent to December 12, 1964. The case will be certified to
the Regional Commissioner, Richmond, Virginia, in accordance with his
request.
ORDER: It is ordered that the application of Vernon Michael BARNES
for a waiver of excludability under paragraph (9) of section 212(a) of
the Immigration and Nationality Act, be and is DENIED pursuant to the
authority contained under section 212(g) of the Immigration and
Nationality Act.
It is further ordered that this denial be without prejudice to
reopening and reconsidering the application subsequent to December 12,
1964.
It is further ordered that this case be certified to the Regional
Commissioner, Southeast Regional Office, Immigration and Naturalization
Service, Richmond, Virginia, in accordance with his request.
Urgent need of beneficiary's services as an artist is not established
within the contemplation of section 203(a)(1), Immigration and
Nationality Act, as amended, since the interest of the petitioning art
gallery seems to be based solely on the speculation the beneficiary's
paintings may become valuable.
This matter is before us on appeal from the decision of the District
Director who denied the petition.
The petitioner is an art gallery which presents exhibitions of
contemporary paintings and sculpture and sells art work on commission.
The petitioner is seeking the services of the beneficiary as an artist.
The petitioner would act as the beneficiary's agent, take a one-third
commission on all sales and may purchase paintings directly from the
beneficiary at one-half the retail price. An agreement has been signed
by the beneficiary which grants the petitioner the right to first
viewing of all her paintings until May 1, 1966.
The beneficiary is an unmarried 38-year-old citizen of Japan who has
been in the United States since 1955 as a student attending the Art
Students League at New York. Before her arrival in the United States
she worked as an art consultant for a newspaper in Japan. The
petitioner states that the beneficiary has exhibited her paintings at
several group exhibitions over a period of the past six years and has
earned between $2,000 to $3,000 from the sale of her paintings.
We have carefully reviewed the record in this case in the light of
the representations made by counsel in support of the appeal. While it
is clear that the beneficiary is a talented artist we cannot find that
the petitioner has established an urgent need for her services. In
determining whether urgent need exists a reasonable interpretation must
be applied. "In the usual case, the petitioner seeks the services of
the beneficiary on a full-time basis, and the beneficiary derives her
livelihood from the services rendered for the petitioner' (Matter of St.
Demetrios Greek Orthodox Church, Int. Dec. No. 1293). In this case the
beneficiary has never earned her living from the sale of her paintings
nor is there any assurance that the demand for her paintings is such
that she will now be able to do so. The petitioner will not subsidize
the beneficiary nor is there any indication that it has invested or
contemplates investing any funds in her training or in publicizing her
talents. The petitioner's interest in the beneficiary seems to be based
on the speculation that her paintings may become valuable and it is
concluded that this is insufficient to establish an urgent need for her
services. The appeal will be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.
Since eligibility for nonquota status pursuant to the provisions of
section 2, Act of October 24, 1962 (Public Law 87-885), requires that on
October 24, 1962, the alien must have been the beneficiary of an
approved first preference visa petition filed in his behalf prior to
April 1, 1962, the beneficiary of an approved first preference visa
petition filed September 25, 1959, the validity of which expired October
5, 1962, is ineligible for nonquota status under section 2 of that Act,
even though a new first preference petition filed in his behalf on
October 9, 1962, was approved on October 23, 1962, and is currently
valid. (Cf. Matter of Lee, Int. Dec. No. 1387.)
DISCUSSION: The application was denied by the District Director at
Philadelphia, Pennsylvania on May 27, 1964. It is now considered on
certification.
The applicant is a 32-year-old unmarried native and citizen of India,
who was paroled into the United States on August 12, 1963. He was
previously in the United States from August 23, 1956 to June 14, 1963,
and his application for the status of a permanent resident under section
245 of the Immigration and Nationality Act was filed on October 31,
1961. The applicant was then the beneficiary of a first preference
petition filed by Wilson-Martin, a division of Wilson and Company, Inc.,
Philadelphia, Pennsylvania on September 25, 1959 granting him status
under section 203(a)(1) of the Act. The petition shows him to be a
research chemist.
Upon inquiry by this Service, the petitioner, Wilson-Martin, advised
under date of September 18, 1962 that the services of the applicant were
no longer urgently needed by that organization. Shortly thereafter, on
October 5, 1962, the time for which the petition had been previously
extended expired.
The applicant had left the employment of the petitioner,
Wilson-Martin, on February 10, 1962 and on February 26, 1962 entered the
employment of William H. Rorer, Inc., Fort Washington, Pennsylvania,
continuing in the occupation of research chemist. A new first
preference petition was filed by the latter corporation on October 9,
1962. This petition was approved on October 23, 1962 and is currently
valid.
On October 24, 1962, Public Law 87-885 was enacted in which section 2
extended nonquota status to certain beneficiaries of first preference
petitions in the following language:
Any alien eligible for a quota immigrant status under the
provisions of Section 203(a)(1) of the Immigration and Nationality
Act (8 U.S.C. 1153) on the basis of a petition filed with the
Attorney General prior to April 1, 1962, shall be held to be a
nonquota immigrant and may be issued a nonquota immigrant visa:
Provided, That upon his application for an immigrant visa and for
admission to the United States or for adjustment of his immigrant
status in the United States pursuant to Section 245 of the
Immigration and Nationality Act (8 U.S.C. 1255) the alien is found
to have retained his status as established in the approved
petition. This section shall be applicable only to aliens
admissible to the United States except for the fact that an
immigrant visa is not promptly available for issuance to them
because the first 50 per centum of the quota of the quota area to
which they are chargeable is oversubscribed by beneficiaries of
petitions approved by the Attorney General pursuant to Sections
203(a)(1) and 204 of the Immigration and Nationality Act (8 U.S.
C. 1153, 1154) prior to the date of enactment of this Act.
The currently valid petition entitles the applicant to a priority
date of October 9, 1962 in the first preference portion of the quota for
India. The quota is oversubscribed to the extent that a first
preference quota number is not now available for that priority date.
The application as presented cannot be granted unless the applicant is a
nonquota immigrant by reason of Public Law 87-885.
Attorney for the applicant, in a brief submitted upon certification
of the case, argues that an object of Public Law 87-885 was to grant
nonquota status to all pre April 1, 1962 first preference filings. He
relies on the ruling established in the case of Dr. Ya Pin Lee,
A-10454029 decided by the Deputy Associate Commissioner, Travel Control
on January 30, 1964 (Int. Dec. No. 1387), in which nonquota status was
established.
In the case of Dr. Lee, on the date of enactment of Public Law 87-885
he was the beneficiary of an approved visa petition to accord him first
preference classification under the quota, which had been filed prior to
April 1, 1962; and it was found that when he had applied for adjustment
of status he had retained the status as established in that approved
petition. It was held that Dr. Lee's change of position to a new
employer in substantially the same type of highly skilled work sometime
after October 24, 1962, during the pendency of his application for
adjustment of status, had not disturbed his eligibility for nonquota
classification under section 2 of Public Law 87-885. In the present
case, upon the enactment of Public Law 87-885 on October 24, 1962, the
applicant was no longer the beneficiary of an approved visa petition
filed prior to April 1, 1962 to accord him first preference
classification under the quota. The validity of approval of the visa
petition filed in his behalf on September 29, 1959 by Wilson-Martin had
expired prior to October 24, 1962, and the new petition submitted in his
behalf by William H. Rorer, Inc., had not been filed until October 9,
1962.
Attorney for the applicant argues that it was only necessary for him
to have been in the employ of the first petitioner when the application
for adjustment was filed and that the filing of the approved first
preference petition antedate April 1, 1962, to benefit by Public Law
87-885. This view disregards the fact that on and after October 24,
1962, the status of the applicant under section 203(a)(1) of the
Immigration and Nationality Act has not been on the basis of a petition
filed with the Attorney General prior to April 1, 1962, but rather upon
the basis of a petition filed by a subsequent employer on October 9,
1962.
It is my finding that the wording in section 2 of Public Law 87-885
"Any alien eligible for a quota immigrant status under the provisions of
section 203(a)(1) of the Immigration and Nationality Act (8 U.S.C.
1153) on the basis of a petition filed with the Attorney General prior
to April 1, 1962, shall be held to be a nonquota immigrant . . .' is not
retroactive in scope. One of the qualifications necessary before an
alien may be accorded nonquota classification under section 2 of Public
Law 87-885 is that the alien, on or after October 24, 1962 when that law
was enacted, must be the beneficiary of an approved first preference
petition filed prior to April 1, 1962. The decision of the District
Director will, therefore, be approved and the application denied.
ORDER: The decision of the District Director is approved and the
application is hereby denied.
Notwithstanding forgery and uttering are defined as separate offenses in section 309(1) and 311, respectively, Canadian Criminal Code, a conviction in Canada of forgery and uttering constitutes, under standards prevailing in the United States, the commission of a single crime involving moral turpitude within the meaning of section 212(a)( 9), Immigration and Nationality Act.
EXCLUDABLE: Act of 1952 -- Section 212(a)(9) 8 U.S.C. 1182(a)(9) --
Convicted of crime involving moral turpitude: forgery, section 310( 1);
and uttering, section 311(a), Canadian Criminal Code.
The applicant, a native and citizen of Canada, applied for admission
to the United States at the port of Piegan, Montana on August 11, 1964.
He presented a nonquota immigration visa issued by the United States
Consul at Calgary, Alberta, Canada on the same day. He was held for a
hearing before a special inquiry officer because of a conviction in
Canada on December 6, 1957 for wilfully and knowingly forging and
uttering a check in the amount of $20.00. The special inquiry officer
concludes that the applicant's conviction for forgery and uttering
constitutes the commission of a single crime involving moral turpitude
within the meaning of the exception to section 212(a)(9) of the
Immigration and Nationality Act, notwithstanding the fact that forgery
and uttering are defined as separate offenses in the Canadian Criminal
Code. /1/ The case has been certified to this Board for final decision.
The applicant was born December 14, 1940 at Cardston, Alberta,
Canada. He was 16 years of age when he forged a check in the amount of
$20 for the purchase of a high school sweater emblazoned with a school
letter that he had won as a member of the basketball team. He testified
that his father was unable to provide him with the funds he needed for
this purchase. This is his only offense either in the United States or
in Canada.
Section 212(a)(9) of the Immigration and Nationality Act provides in
substance that an alien is ineligible to receive a visa and shall be
excluded from the United States if he has been convicted of a crime
involving moral turpitude. However an alien who has committed only one
such crime while under the age of 18 years, may be granted a visa and
admitted to the United States provided the crime was committed more than
five years prior to the date of the application for a visa and more than
five years prior to the date of application for admission to the United
States.
The applicant applied for a visa at the Calgary Consulate on June 30,
1964. He applied for admission to the United States on August 11, 1964.
He was approximately 16 years and 11 months of age when he committed
the offense here under consideration. It is well established that the
crimes of forgery and uttering involve moral turpitude. /2/ The only
issue presented by the case is whether under standards prevailing in the
United States the applicant has committed "only one such crime' within
the meaning of section 212(a)(9) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(9)).
The Canadian Criminal Code defines the forging and uttering of a
document as two separate offenses (supra, footnote 1). The Criminal
Codes of some of our States have separate provisions for the crimes of
forging and uttering a document. /3/ Notwithstanding this fact it has
been generally held in the United States that the making of a forged
written instrument and the uttering of it by the same person, at the
time, as one transaction, constitute but one offense. /4/ It is also
the general rule in the Federal Courts that where the several counts of
an indictment charge both forgery and uttering and the forging and
uttering are parts of a single transaction, the sentence based on a
general verdict or plea of guilty must impose only one penalty . . . a
separate sentence for each count is erroneous and void. /5/
It is not clear from the record before us as to whether the Canadian
Court imposed a separate sentence for each offense committed by the
applicant. The records of conviction merely show that he was given a
"one year suspended sentence.' Regardless of this fact we conclude that
under standards prevailing in the United States /6/ the applicant
"committed only one such crime' within the meaning of the exception set
forth in section 212(a)(9) of the Immigration and Nationality Act when
he committed the offenses defined by sections 309(1) and 311 of the
Canadian Criminal Code on November 5, 1957 at Cardston, Alberta, Canada.
An appropriate order will be entered.
ORDER: The decision and order admitting the applicant to the United
States for permanent residence, entered by the special inquiry officer
on August 28, 1964 is hereby affirmed.
(1) Section 309(1), Canadian Criminal Code, defines the crime of
forgery as follows:
"Every one commits forgery who makes a false document, knowing it to
be false, with intent (a) that it should in any way be used or acted
upon as genuine, to the prejudice of any one whether within Canada or
not, or (b) that some person should be induced, by the belief that it is
genuine to do or to refrain from doing anything, whether within Canada
or not'.
Section 311 of the Canadian Criminal Code defines the crime of
uttering a forged document as follows:
"Every one who, knowing that a document is forged, (a) uses, deals
with, or acts upon it, and (b) causes or attempts to cause any person to
use, deal with, or act upon it, as if the document were genuine, is
guilty of an indictable offense and is liable to imprisonment for
fourteen years'.
(2) Jordan v. De George, 341 U.S. 223 (1951).
(3) See Chapter 620 of the Minnesota Statute Annotated; Oregon
Revised Statutes, 1953, Chapters 165.105 and 165.115; Article 84,
McKinley Consolidated Laws of New York.
(4) State v. Klugherz, 98 N.E. 99, Supreme Court of Minnesota, 1904;
People v. Adler, 140 N.Y. 331, 35 N.E. 644; Daugherty v. Gladen, 341
P.2d 1069, 1077 Supreme Court of Oregon, 1959.
(5) United States v. Carpenter, 151 Fed. 214, 215 (C.A. 9, 1907);
Simon v. United States, 37 Appeals D.C. 280, Supreme Court D.C., 1911.
(6) Matter of T , 2 I. & N. Dec. 22, 42; Giammariou v. Hurney, 311
F.2d 285, 1962.
Under the law of Indonesia acknowledgment alone by the natural father
of a child born out of wedlock does not constitute legitimation;
Article 275 of the Civil Code of April 30, 1947, requires a declaration
of the Governor-General (and at present, the President of the Republic
of Indonesia) after a consultation with the Supreme Court, for the
legitimation of a legally acknowledged child.
The case originally came forward on appeal from the order of the
District Director, Detroit District, dated November 26, 1963 denying the
visa petition for the reason that the beneficiary was not a parent as
defined in section 101(b)(2) of the Immigration and Nationality Act in
that the petitioner failed to meet the status of a stepchild as defined
in section 101(b)(1)(B) of the Act; and that a stepchild born out of
wedlock derives no status as a stepchild by reason of the marriage of
the natural father to a person other than the child's mother. On
January 24, 1964 we remanded the case for a statement from the
petitioner regarding the religion and race of herself and of her natural
parents. We further directed that the possibility of legitimation under
the law which prevailed in Batavia, West Java, which was the former
Netherlands East Indies at the time of the petitioner's birth, should be
explored and made a part of the record. The District Director, Detroit
District, again held that the document the petitioner submitted in
support of the legitimation of the petitioner constitutes an
acknowledgment by the petitioner's father that she is his natural child
but that the document is not an act of legitimation since it fails to
meet the requirement that a legally acknowledged child may be
legitimated only through a declaration of legitimacy issued by the
Governor-General after consultation with the Supreme Court.
The petitioner, a native of Batavia, West Java, Indonesia, born on
April 12, 1931, female, a naturalized citizen of the United States,
seeks preference status under section 203(a)(2) of the Immigration and
Nationality Act on behalf of her alleged stepmother. The beneficiary is
a native and citizen of Djakarta, West Java, Indonesia, born on November
8, 1918.
In accordance with our prior order a sworn statement was taken from
the petitioner on March 19, 1964 by an immigrant inspector. The
petitioner testified that her natural father was born in Java and that
both her parents were of full-blooded Chinese ancestry, that their
religion was Buddhism but that she herself went to a Protestant school
and subsequently enrolled with nuns at a Catholic school. She also
testified that her maternal grandparents were racially Chinese although
she indicated that all her grandparents were born in Java. The document
submitted in support of the visa petition indicates that the petitioner
was born on April 12, 1931, her natural mother died in Batavia,
Indonesia on May 26, 1931, her natural father acknowledged his parentage
on June 5, 1931 and he married the beneficiary on March 31, 1935.
The petitioner seeks to qualify the beneficiary as her stepmother.
Section 101(b)(1)(B) and section 101(b)(1)(C) would appear pertinent.
These subsections provide that the child must not have reached the age
of 18 years at the time the marriage creating the status of stepchild
occurred or at the time the legitimating act took place. Inasmuch as
the stepchild and stepparent relationship arises of the marriage of the
petitioner's natural father and the beneficiary she must have been
legitimated in relation to her natural father to qualify as a stepchild.
/1/
In his brief counsel bases his appeal on sections 261 and 262 of the
first part of the Indonesian Civil Code relating to the descent of
legitimate children which provides that where legitimate children cannot
produce birth certificates, they may prove that they are legitimate
children by other methods described in those sections. However, the
primary issue is whether or not the petitioner was ever legitimated
under Indonesian law.
The matter was submitted to the Library of Congress, Far Eastern Law
Division. The Civil Code for Indonesia of April 30, 1947 remains
effective and its provisions remain applicable to the Chinese of India.
The alleged natural father has only acknowledged the petitioner as being
his child. However, the legitimation process seems to have been
incomplete since, according to Article 275 of the Civil Code, the
legitimation of a legally acknowledged child requires a declaration of
the Governor-General (and at present, the President of the Republic of
Indonesia) after a consultation with the Supreme Court. Article 280 of
the Civil Code provides that in the act of acknowledgement of a natural
child, a civil relationship is created between the child and the parent
who acknowledges him. This relationship entitles the child to the use
of the parent's surname and other legal rights. According to Article
862 et seq. of the Civil Code, the most significant legal distinction
between legitimate child and a legally acknowledged child exists in the
matter of inheritance. The acknowledged child is entitled to a lesser
portion of the inheritance than the legitimate child. The
acknowledgement of a natural child creates a family relationship only
between the parent and the child but not between the child and the
parent's kinfolk. Through acknowledgement, a bilateral obligation to
aliment (support) is created between the child and his parent. However,
this obligation binds the acknowledged child only to his parent, whereas
it binds the legitimate child to further ascendants.
As stated in the report from the Library of Congress, the child
appears to have been legally acknowledged thus acquiring some civil
rights. However, as further indicated in that report, the legitimation
process appears to have been incomplete, since according to Article 275
of the Civil Code, the legitimation of a legally acknowledged child
requires a declaration of the Governor-General (and at present, the
President of the Republic of Indonesia) after a consultation with the
Supreme Court. No evidence has been submitted that the legitimation
process was ever completed. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of W , 7 I. & N. Dec. 685.
A dual national of the United States and Mexico who, upon petition to the city government of Agua Prieta, Sonora, Mexico, in which he described himself as a Mexican, acquired title to property located in a border area in Mexico in which property ownership is limited to Mexican nationals did thereby voluntarily seek or claim the benefits of Mexican nationality within the meaning of section 350, Immigration and Nationality Act.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(20)
-- Immigrant without visa or passport.
The special inquiry officer found that the applicant was excludable
upon the ground stated above and certified the case to the Board for
final decision. Proceedings will be reopened.
The applicant, a 53-year-old single male born in the United States of
America, became at birth a citizen of the United States and of Mexico.
The Service contends that he lost United States citizenship by acquiring
ownership of land in the city of Agua Prieta, Mexico, on November 24,
1952, and by continuing his ownership to the present time. The
applicant's property is located in the border area in a zone where
Mexican law limits ownership to Mexican nationals and prohibits it to
non-Mexican nationals. The Service relies on section 350 of the Act (8
U.S.C. 1482 (1958)) which provides for the loss of United States
nationality by a dual national who voluntarily sought or claimed the
benefits of his foreign nationality.
Applicant's home has been in Mexico since he was taken there when
about 3 years of age; he has been working in the United States since
1946.
On July 2, 1944, the applicant applied to the officers of the
communal farm in Agua Prieta, Sonora, Mexico, for possession of a lot in
the urban zone; possession, but not title, was awarded to him on
September 30, 1944 (certificate of possession attached to Exhibit 15);
on November 2, 1952, the applicant applied for title to the lot; in his
application he described himself as a Mexican (Ex. 14). Title was
awarded to him by the city government on November 24, 1952; the award
was made under the authority of "Law Number 25 of July 16, 1892, of the
State, and Decree Number 43 of the State Government' (Ex. 15).
The applicant testified that during the lifetime of his father, the
family lived on a ranch; that his father had always wanted to establish
a home for the mother in the city; that in 1944 his father died; that
the applicant and his mother moved to the town of Agua Prieta, Sonora,
and using money his father had earmarked to provide a home, he
(applicant) acquired land and built a house; and that he and his mother
(she died in 1963) lived in it.
The special inquiry officer found the applicant had become
expatriated because ownership of the land after December 24, 1952, the
effective date of section 350 of the Act, constituted a continuing claim
to the benefits of Mexican nationality. Counsel contends expatriation
did not occur.
Counsel's contention that the burden of proof was placed upon the
applicant is not justified by the record. The burden of establishing
that the applicant lost United States citizenship is upon the Service;
the Service can carry its burden by coming forward with a preponderance
of the evidence showing that the loss occurred; the previous standard
requiring clear and convincing proof -- a standard which counsel
believes should apply here, was supplanted by section 349(c) of the Act
(8 U.S.C. 1481(c) (Supp. IV)).
Counsel points out that applicant acquired his land before December
24, 1952, when section 350 of the Act went into effect; he contends it
would be unconstitutional to take away the applicant's United States
citizenship for an act committed before the adoption of section 350.
The contention must be rejected. When ownership of land by dual
national occurred before December 24, 1952, and the ownership was the
result of a claim to Mexican nationality, we hold that expatriation
occurs if the owner failed within the 3 years after December 24, 1952,
to use the means provided by Congress (abandonment of Mexican residence)
to avoid loss of citizenship (Matter of Sanchez-Monreal, Int. Dec. No.
1361; Matter of V , 7 I. & N. Dec. 218; Matter of G Q , 7 I. & N. Dec.
195). We do not believe that our view constitutes an ex post facto
application of the law because Congress did afford the individual
concerned a period of 3 years the effective date of the Act within which
he could have preserved his United States nationality.
Counsel contends that the savings clause (section 405(a) of the Act,
8 U.S.C. 1101 n. (1958)) prohibits application of section 350 to the
instant case. The savings clause does not apply, in our opinion,
because it was applicant's conduct arising after the effective date of
the Act (failure to abandon Mexican residence) which resulted in loss of
United States citizenship. Moreover, there having been no statute
governing the right to accept benefits of foreign nationality prior to
December 24, 1952, under which applicant could have acquired a status,
we fail to see how a savings clause which merely continued in effect
statutes otherwise repealed by the Act of 1952, could apply to the
applicant.
Counsel contends that applicant did not lose United States
citizenship because in taking title he acted as a trustee for his
mother. The record does not establish this claim; moreover, if taking
as trustee required the taker to claim the benefits of Mexican
nationality, it appears to us, loss would result under section 350 of
the Act.
It is conceded that the land owned by the applicant lies in the area
where non-Mexican nationals are prohibited from owning land; counsel
however contends that non-Mexican nationals nevertheless do acquire land
in the prohibited area despite the constitutional prohibition. Counsel
offered no evidence to support his contention. Even if the situation
described by counsel existed, the question determinative of the issue in
any case is whether the dual national involved made use of his Mexican
nationality to obtain the right to own the land; this fact must be
proved in each case.
Counsel contends that the record fails to establish that the
applicant intended to divest himself of United States citizenship. The
intent of the applicant in this regard is not material. The act causes
expatriation to occur, upon proof that the benefit of foreign
nationality was voluntarily claimed. Intention is not an element.
The question then before us is whether the record establishes by a
preponderance of the evidence that the applicant "voluntarily sought or
claimed benefits' of Mexican nationality. On such a question, carrying
with it the grave consequence of expatriation, mere proof of ownership
of land in an area where ownership is restricted to Mexican nationals
does not constitute substantial evidence that a claim to Mexican
nationality was in fact made in a particular case. Some proof that the
claim was made must be advanced (Matter of Sanchez-Monreal, supra). We
think that such evidence is found here in the fact that the applicant's
petition addressed to the city government requesting that title be
assigned to him described him as a Mexican (Ex. 14). The combination of
the two factors -- the legal requirement that the owner be a Mexican
national, and the fact that the person seeking ownership asserted that
he is a Mexican national, establishes in the absence of evidence to the
contrary that a claim to Mexican nationality was made.
We shall reopen the proceedings because this is an expatriation case
and the record fails to show what considerations in making the grant the
city government was required to observe under "Law Number 25 of July 16,
1892, and the Decree Number 43 of the State Government' (Ex. 15).
Counsel objects to the consideration of a prehearing statement made
by the applicant. We do not find counsel's objection valid; however,
we shall not discuss it since we have not considered the statement in
any manner adverse to the applicant.
ORDER: It is ordered that proceedings be reopened for such further
action as the special inquiry officer may deem appropriate, and which is
not inconsistent with what we have stated above.
It is further ordered that the order of the special inquiry officer
be certified to the Board.
Since service on the same party of both notice to detain and deport and notice of intention to fine is a prerequisite to fine liability under section 254(a)(3), Immigration and Nationality Act, the owners of a vessel are not liable to fine for failure to detain and deport an alien crewman upon revocation of his landing privileges when notice to detain was served on the master, acting through the second mate.
BASIS FOR FINE: Act of 1952 -- Section 254(a) 8 U.S.C. 1284 .
This appeal is directed to an administrative penalty of $1,000 which
the District Director at New Orleans, finding no justification
whatsoever for reduction in the amount thereof, has ordered imposed on
the Hellenic Lines, Ltd., as owners of the M/V "Hellenic Leader.' The
"Notice of Intention to Fine' (Form I-79) on which these proceedings are
based charges a violation of subsection (2) of the statute, in the
following language: "Failure to detain on board the alien crewman named
below (Ioannis Alexiou) after he was refused a conditional landing
permit.'
The vessel made its first United States port call on this trip at
Savannah, Ga., on January 20, 1964. Immigration inspection, which was
then and there accorded its crew, resulted in the granting of D-1
conditional landing privileges to the crewman here involved. Under the
terms thereof, he was admitted for the period of time his vessel was to
remain in United States ports; in no event was his stay in the United
States to exceed 29 days; and he could not be paid off and/or
discharged without prior permission from an immigration officer acting
for the Attorney General.
From Savannah, the vessel proceeded coastwise to several United
States ports, eventually arriving at New Orleans on February 12, 1964,
at about 4:00 p.m. Approximately three and one-half hours later, Border
Patrol officers of the Service encountered the crewman at the Greyhound
bus terminal in New Orleans. He was in possession of a one-way bus
ticket to Baltimore, Maryland; he had $280 in his possession; he
stated that he intended to go to Baltimore to work and attend night
school; and that he did not intend to return to the ship.
The officers thereupon took crewman into custody "for processing.'
They then served on him a notice (Form I-99) that his conditional
landing permit was revoked. That form also was executed to indicate
that his detention and deportation aboard the M/V "Hellenic Leader' was
being directed, pursuant to section 252(b) of the Immigration and
Nationality Act (8 U.S.C. 1282). Thereafter, the officers returned the
crewman to his ship where they found the second officer in charge.
Their report (June 6, 1964) reflects that he informed them that he
understood English sufficiently well to transact the ship's business.
/1/ It indicates that he was then informed of the circumstances under
which the crewman was taken into custody; that his landing privileges
had been revoked; and that he was being ordered detained aboard the
vessel and deported. It sets forth that he was then shown Form I-259
(Notice to Detain and Deport); that its meaning was explained to him;
and that he stated he understood it and about detainees, because there
were two others aboard at the time. /2/ It relates that he refused to
sign for the Master, and claimed that he was not authorized to confine
the crewman or to hire a professional guard to watch over him. /3/ It
recounts that, nevertheless, the crewman was left on board, and that the
Form I-259 was served on the vessel and noted that it was accepted but
unsigned by the Second Mate. /4/ Finally, it narrates that the Border
Patrol officers then left the ship at approximately 10:20 p.m. on
February 12, 1964; that approximately one hour thereafter, at about
11:30 p.m. on February 12, 1964, the Border Patrol was notified by the
vessel's agents that the crewman had left the ship by taxicab; /5/ and
that he is still at large in the United States.
As to crewman arriving aboard vessels in United States ports, 254(a)
of the Immigration and Nationality Act (8 U.S.C. 1284) imposes three
separate and distinct, though closely related, duties which the parties
named in the statute are charged with the responsibility of meeting,
under pain of penalty in the amount of $1,000.00. /6/ Subsection (1)
requires crewman to be detained on board an arriving vessel until an
immigration officer has completely inspected them, and this duty exists
without the necessity of individual notice because the law itself,
without more, serves as notice. Subsection (2) compels crewmen to be
detained on board after inspection unless and until they are issued
landing permits and again there is no requirement of individual notice
for the reason, likewise, that the statute itself serves as notice to
continue the detention until such time as an immigration officer lifts
it by issuing a conditional landing permit. Subsection (3) necessitates
the deportation of crewmen, either before or after they are permitted to
land temporarily, if the Service requires it and here notice is
essential because of the use of the words "if required' in the
Subsection. /7/
The foregoing facts of record bring this case squarely within the
scope of subsection (3) of the statute, ante. Therefore, the duty to
deport the crewman did not arise until this requirement was communicated
to the person or persons upon whom the duty was to rest. In this
instance, it was the Master, acting through the Second Mate. However,
the fine has been ordered imposed on the vessel's owners. /8/ For the
reasons hereinafter set forth, this precludes us from sustaining the
present penalty. The Supreme Court has ruled that a ship owner is not
liable to a fine imposed for failure to detain (deport) an alien crewman
where the request for his detention (deportation) is communicated to the
Master of ship, but is not brought to the knowledge of the owner because
the notice is of a personal nature. /9/ While that case involved
predecessor legislation, it is controlling here for the reasons set
forth in a prior precedent decision of this Board interpreting the
present statute. /10/ Accordingly, the District Director's decision
must be withdrawn and the matter remanded to said official for
correction of the defect hereinbefore outlined.
ORDER: It is ordered that the District Director's decision be
withdrawn and that the matter be remanded to said official for
appropriate action not inconsistent with the foregoing opinion.
(1) Both the protest to imposition of the fine and the brief on
appeal contain the claim that the Second Mate did not understand the
officers.
(2) The Border Patrol officer's report states that there were no
hired guards on the vessel at that time.
(3) The appeal brief contains the unsupported contention that he did
confine the crewman and instructed the ship's watchman to guard him, but
that the watchman became lax in the early morning hours, and that it was
then that the crewman escaped.
(4) Another Form I-259 was served on the Master the following day.
(5) This contradicts the unsupported claim contained in 3, ante.
(6) Such a fine may be reduced, but to not less than $200.00, if
sufficient mitigating factors are found to exist.
(7) See Matter of M/V "Arnfinn Stange,' 8 I. & N. Dec. 639.
(8) See Notice of Intention to Fine (Form I-79) instituting these
proceedings.
(9) Compagnie Generale Transatlantique v. Elting, 298 U.S. 217 at
223.
(10) Matter of SS "Marilena, 7 I. & N. Dec. 453, at 454, last
Paragraph .
Attempted assault, second degree (with intent to commit carnal abuse and rape), in violation of section 242(5), New York Penal Law, is a crime involving moral turpitude.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251 -- Convicted
of crime involving moral turpitude committed within 5 years after entry
and sentenced to confinement therefor in a prison or corrective
institution for a year or more, to wit, attempted assault, 2d degree
(section 242, New York Penal Code).
The respondent is a 32 year old married male alien, a native and
citizen of Italy who entered the United States at the port of New York
on November 19, 1960, at which time he was admitted for permanent
residence. On November 15, 1963, he was convicted in the County Court,
Nassau County, New York, of attempted assault, second degree and was
sentenced to Sing Sing State Prison for a term of one year and three
months to two years and six months, but execution of the sentence was
suspended and he was placed on probation.
Deportability is predicated on section 241(a)(4) of the Immigration
and Nationality Act on the ground that the respondent was convicted of a
crime involving moral turpitude committed within five years after entry
and sentenced to confinement in a prison for a year or more. The
respondent urges that he is not subject to deportation as it cannot be
determined from the record whether he was convicted of a crime involving
moral turpitude.
To decide whether the crime of which the respondent stands convicted
involves moral turpitude reference must be had to the record of
conviction which includes the indictment (information or complaint),
plea, verdict and sentence. United States ex rel. Meyer v. Day, 54 F.
2d 336 (C.C.A. 2, 1931); United States ex rel. Robinson v. Day, 54 F.
2d 1022 (C.C.A. 2, 1931); United States ex rel. Zaffarano v. Corsi, 63
F.2d 757 (C.C.A. 2, 1933).
The record reflects that on September 18, 1952, the respondent was
indicted by the grand jury of Nassau County, New York, on four counts
relating to his alleged misconduct on July 30, 1962, with an eight year
old girl as follows:
First count -- carnal abuse of a female child in violation of
section 483-A of of the Penal Law of New York
Second count -- attempted rape, first degree
Third count -- assault in the second degree with intent to
commit the crimes and felonies of carnal abuse and rape
Fourth count -- endangering the life, health and morals of a
child, by placing his hands, fingers, and private parts in contact
with the private parts of the girl.
The indictment concludes as follows:
All of the acts and transactions alleged in each of the several
counts of this indictment are crimes of a similar nature, are
connected together and form part of a common scheme and plan.
On October 1, 1962, the respondent pleaded not guilty to the
indictment but subsequently on October 15, 1963, withdrew his plea of
not guilty and pled guilty to attempted assault, second degree, in
satisfaction of the indictment.
Section 242 of the New York Penal Law, defining the crime of assault
in the second degree, provides as follows:
A person who, under circumstances not amounting to the crime
specified in section two hundred and forty,
1. With intent to injure, unlawfully administers to, or causes
to be administered to, or taken by another, poison, or any other
destructive or noxious thing, or any drug or medicine the use of
which is dangerous to life or health; or,
2. With intent thereby to enable or assist himself or any other
person to commit any crime, administers to or causes to be
administered to, or taken by another, chloroform, ether, laudanum,
or any other intoxicating narcotic or anaesthetic agent; or,
3. Willfully and wrongfully wounds or inflicts grievous bodily
harm upon another, either with or without a weapon; or,
4. Willfully and wrongfully assaults another by the use of a
weapon, or other instrument or thing likely to produce grievous
bodily harm; or,
5. Assaults another with intent to commit a felony, or to
prevent or resist the execution of any lawful process or mandate
of any court or officer, or the lawful apprehension or detention
of himself, or of any other person,
Is guilty of assault in the second degree.
As the statute is divisible, conviction thereunder may or may not
involve moral turpitude, Matter of Z , 5 I. & N. Dec. 383 (BIA, 1953).
If the basic crime involves moral turpitude then the attempt to commit
that crime likewise involves moral turpitude, United States ex rel.
Meyer v. Day, supra.
The third count of the indictment, which is the only one involving
assault, alleges an assault with intent to commit the felonies of carnal
abuse and rape. The phraseology of this count clearly brings it within
the purview of the fifth subdivision of section 242. As the crimes of
carnal abuse and rape clearly involve moral turpitude, an assault with
intent to commit such crimes involves moral turpitude. Hence, had the
respondent pleaded guilty to the third count of the indictment, he
unquestionably would fall within the scope of section 241(a)(4) of the
Immigration and Nationality Act. The fact that he pleaded guilty to
attempted assault, second degree is not deemed to alter this conclusion.
That plea was not made in a vacuum, but must be considered with
relation to the indictment, as is indicated by the recitals in the
conviction record that such plea was "in satisfaction of the
indictment.'
Under the criminal procedure of New York, an indictment is essential
to the prosecution of a crime in a county court and to the acceptance of
a plea with reference thereto, Code of Criminal Procedures, section 4,
222, 444, 445. Hence, there cannot be a plea or a conviction of any
crime in such court without an indictment. As a matter of law, a
criminal judgment must be supported by an indictment charging the crime
adjudged or a higher degree thereof, or a crime necessarily involving or
included in the crime for which the sentence is imposed, Matter of W , 4
I. & N. Dec. 241, at 245 (BIA 1951). The effect of the respondent's
guilty plea to attempted assault in the second degree was to reduce the
maximum punishment to which he was subject, (New York Panal Law, sec.
261, subd. 2). In other respects he is considered as having pleaded to
the basic crime.
In United States ex rel. Valenti v. Karnuth, 1 F.Supp. 370 (U.S.D.
C., N.D., N.Y., 1932) an alien charged in the indictment with assault in
the first degre pled guilty to assault in the second degree. In holding
that the allegations in the indictment pertinent to the crime to which
the guilty plea was entered could properly be considered, the court
stated:
When confronted with the necessity of deciding whether the
named crime to which the relator pleaded guilty involves moral
turpitude, this court may, in reaching a decision, when the
question is doubtful, look behind the plea to the charge or
indictment upon which the plea was made for the purpose of
determining the question.
Following this rationale it has been held that where an indictment
charges a particular offense and there is a plea of guilty to a lesser
offense the allegations pertaining only to the greater offense are
disregarded and the remaining allegations to which the plea has been
taken are considered to determine whether there has been a conviction of
a crime involving moral turpitude. Thus where the indictment alleged
manslaughter in the first degree based upon the use of an instrument to
procure an abortion resulting in the death of a woman and the alien pled
guilty to assault in the second degree it was concluded that the
conviction was under section 242, subd. 5, of the New York Penal Law for
assault in the second degree with intent to commit the felony of
abortion and that the crime involved moral turpitude, Matter of M , 2 I.
& N. Dec. 525 (BIA, 1946).
Similarly in Matter of W , 4 I. & N. Dec. 241 (BIA, 1951) the Board
held that where the respondent was convicted of attempted unlawful entry
and unlawful entry under indictments charging attempted burglary in the
third degree and burglary in the third degree with intent to commit
larceny, the respondent was, in fact, convicted of attempted entry and
entry with intent to commit larceny and was therefore convicted of
crimes involving moral turpitude.
In the instant case the indictment alleged that all the acts in each
count of the indictment were crimes of a similar nature and formed a
part of a common plan. The crime alleged in each count involves moral
turpitude. /1/ It would be anomalous, indeed, to hold that the
respondent, by pleading guilty to an attempt to commit one of those
crimes was acknowledging guilt of a totally different crime having no
relation to the crimes in the indictment. That claim must be rejected
in favor of the conclusion that the respondent has been convicted of a
crime involving moral turpitude. As he was sentenced to confinement to
prison for more than one year he is subject to deportation under section
241(a)(4) of the Immigration and Nationality Act as charged in the order
to show cause, Matter of M , 6 I. & N. Dec. 346 (BIA, 1954).
The respondent has applied for the privilege of voluntary departure.
According to the record he was married to a United States citizen in
1960 and is now living with her. He stated that he has no other
criminal record.
Since the respondent is deportable under section 241(a)(4) of the
Immigration and Nationality Act he cannot qualify for voluntary
departure pursuant to the provisions of section 244(e) of the Act unless
he meets the good moral character and physical presence requirements for
suspension of deportation set forth in section 244(a)( 2) of the
Immigration and Nationality Act, as amended. As the respondent became
deportable by reason of his conviction of 1963, he does not meet either
of those requirements. Hence, he is ineligible for voluntary departure.
On this record the only appropriate order is one directing the
respondent's deportation. As he has failed to designate any country to
which he prefers to be deported, deportation will be directed to Italy,
the country of his nationality.
ORDER: It is ordered that the respondent be deported from the United
States to Italy on the charge contained in the order to show cause.
(1) Matter of R , 3 I. & N. Dec. 562 (BIA, 1949) (Carnal abuse);
Wing v. United States, 46 F.2d 755 (C.A. 7, 1931) (Rape); Matter of Z ,
7 I. & N. Dec. 253 (BIA, 1956); Fitzgerald v. Landon, 238 F.2d 864
(C.A. 1, 1956) (Assault with intent to commit carnal abuse and rape);
Matter of C , 5 I. & N. Dec. 65 (BIA, 1953) (Endangering morals of a
minor).
This case is before us on appeal from a special inquiry officer's
decision of July 16, 1964, holding the respondent ineligible for
voluntary departure and directing that he be deported from the United
States to Italy on the charge contained in the order to show cause.
The record relates to a 32-year-old married male alien, a native and
citizen of Italy, who was admitted to the United States for permanent
residence on November 19, 1960. On November 15, 1963, in the County
Court, Nassau County, New York, he was convicted of attempted assault,
second degree, and was sentenced to Sing Sing State Prison for a term
not to exceed two years, six months, with a minimum of one year, three
months. Execution of the sentence was suspended, and he was placed on
probation.
The respondent first urges that the special inquiry officer erred in
holding him subject to deportation on the above-stated charge, on the
theory that it cannot be determined from the record whether the crime of
which he was convicted was one involving moral turpitude. However, said
official has succinctly set forth in his opinion the reasons why he
answered this argument adversely to the respondent, together with a more
than adequate analysis of the administrative and judicial precedents
supporting him in this respect. It would serve no useful purpose here
to restate his rationale in its entirety, or to restate all his
citations of authority.
The record reflects that on September 18, 1962, the respondent was
indicted by the grand jury of Nassau County, New York, on four counts
relating to his alleged misconduct on July 30, 1962, with an
eight-year-old girl, in violation of section 483-A of the Penal Law of
the State of New York. On October 1, 1962, the respondent pleaded not
guilty to the indictment. However, on October 15, 1963, he withdrew
that plea and pleaded guilty to attempted assault in the second degree,
as defined in section 242 of the New York Penal Law, in satisfaction of
the indictment.
Careful consideration of the special inquiry officer's opinion
convinces us that he has correctly pinpointed this crime as coming
within the third count of the indictment which alleges assault with
intent to commit the felonies of carnal abuse and rape, and the fifth
subdivision of section 242 covering assault with intent to commit a
felony. We agree with the special inquiry officer's reasoning that,
eliminating the allegations pertaining only to the greater offense
covered in the third count of the indictment, the lesser offense to
which he pleaded guilty is one involving moral turpitude. That is, we
concur in his conclusion that the plea was not made in a vacuum, but
must be considered with relation to the indictment, as indicated by the
recitals in the conviction record that such plea was "in satisfaction of
the indictment.' The judicial and administrative precedents cited by the
special inquiry officer clearly support him in this respect.
The respondent next argues that the special inquiry officer committed
error when he received the indictment into evidence as explanatory of
the record of conviction, but then failed to receive testimony of the
attorney who represented the respondent in the criminal proceedings as
to why the respondent pleaded guilty to a violation of section 242 of
the New York Penal Code, rather than to face the charges in the
indictment brought under section 483-A thereof. The answer to this
argument is that the indictment is a part of the record of conviction,
as pointed out in court cases cited by the special inquiry officer,
whereas the testimony of the respondent's then attorney is not. The
cases relied on by the special inquiry officer clearly point up the
impropriety of an administrative officer or tribunal going behind the
record of conviction in this respect. The only further comment we think
that is required on this point is that careful analysis of the cases
cited by the special inquiry officer fully supports his refusal to
accept such testimony.
Finally, at the time the special inquiry officer was considering the
respondent's case, the controlling precedent decisions were to the
effect that aliens such as the respondent were not eligible to have
their status adjusted under section 245 of the Immigration and
Nationality Act (8 U.S.C. 1255). Accordingly, the special inquiry
officer did not advise the respondent of any rights he might have in
this respect. Since that time, however, the court of appeals for the
second circuit has ruled that an alien who became deportable under
section 241(a)(4) of the Immigration and Nationality Act, for a crime or
crimes committed after lawful admission for permanent residence, is
eligible for relief under section 245 of the Immigration and Nationality
Act, even though originally admitted as an immigrant (Tibke v.
Immigration and Naturalization Service, 335 F.2d 42). In the light of
that decision, we will remand the case to the special inquiry officer to
afford the respondent an opportunity to file and prosecute an
application for such relief.
ORDER: It is ordered that the alien's request for termination of the
proceedings be denied, and that his appeal, insofar as it relates to
deportability, be dismissed.
It is further ordered that the hearing be reopened for appropriate
action not inconsistent with the foregoing opinion.
It is further ordered that if discretionary relief is granted by the
special inquiry officer, the outstanding order of deportation be then
withdrawn.
The Service moves for reconsideration of our order of October 19,
1964, which reversed the District Director's decision revoking approval
of the visa petition filed in behalf of petitioner's mother. /1/
Counsel for the Service contends section 101(b)(1)(E) of the Immigration
and Nationality Act bars approval of the petition. The District
Director took the same position in his decision. We adhere to our
previous ruling.
The Service's counsel's concern with the statutory prohibition has
led him into the same error which the District Director committed --
interpreting the statute mechanically and unrealistically. What we said
in our previous order about the scope of section 101(b)(1)(E) applies
with equal force to this motion. That statutory provision simply has no
applicability here.
We believe the following hypothetical situations point up that
inapplicability. In each we assume the factual situation here, as set
forth in our previous order, except that we vary the facts with respect
to the adoption. We also assume that the adoption in each case is valid
under Chinese law and that the adoptive parents are deceased.
Case A. Petitioner was adopted when over the age of 14 years.
/2/
Case B. Petitioner was adopted when under the age of 14 years
but following the adoption resided with them for less than two
years.
Case C. Petitioner, as here, was adopted when under the age of
14 years and following the adoption was in the legal custody of
the adopting parents, and resided with them for two years or more.
Apparently, the Service would approve petitions for petitioner's
natural mother in Cases A and B but deny such a petition in Case C. In
the circumstances we have assumed, however, we discern no special magic
in the fact that the situation in Case C happens to fit the language
which immediately precedes the proviso in section 101(b)(1)(E). That
language was not designed for the situations we envisage. It limits the
situations in which an adopted child may benefit under the immigration
laws through its relationship to its adoptive parents. Congress
particularized the adopted child who might so benefit in order to
forestall use of the provision simply as a means of evading other
provisions of the law. Thus, the language which precedes the proviso
loses its force when considered out of the context of the adoptive
relationship. In our situations, that language has never been applied
-- and could not be applied -- to accord any status under the
immigration laws. Therefore, the language should have no more
significance in one of the situations than in the others.
In the proviso, Congress particularized the natural parent in the
same manner. The proviso does not preclude a petition by any adopted
person for a natural parent. It precludes such a petition only if the
petitioner has obtained a benefit under the immigration laws, or may
obtain some benefit under those laws, by reason of his adopted status.
Such person must, of course, qualify under the language preceding the
proviso in order to be eligible for the benefit. We consider, however,
the language of the proviso also loses its force where the adopted
person, even though mechanically qualifying under the definition, has
never used, and never could use, his qualifications for immigration
purposes. Thus, looking at the statutory provision as a whole,
petitioner's adoption under circumstances which meet the statutory
requirements in the definition of an adopted child is immaterial for the
purposes here considered.
In addition to applying section 101(b)(1)(E), erroneously, the
Service's motion misconstrues the effect of our decision. We believe
the Service's difficulty arises primarily from misstatement of the
issue. The motion states the issue to be whether a child, who in all
respects comes within the definition of an adopted child in the
immigration and Nationality Act, can have a visa petition approved for
her natural parent on the ground that the child had not gained a benefit
under the immigration laws by reason of the adoption. As we have seen,
petitioner does not "in all respects' come within the definition of an
adopted child in the Immigration and Nationality Act. Actually she does
not come within it at all.
Assuming that petitioner was legally adopted, the circumstances of
her adoption merely coincide mechanically with the conditions imposed by
the definition. Moreover, the criterion here is not that the adopted
person has not at the time of petitioning already obtained a benefit
under the immigration laws. Our decision contemplates that petitioner
not only has not gained a benefit under the immigration laws through her
adoption but could not now or ever obtain such a benefit. Both
conditions must be present.
We believe the foregoing statement disposes of the Service's
contention that our holding permits an adopted child to have greater
rights than a natural child in that the adopted child could petition for
two sets of parents and two sets of brothers and sisters. We need not
discuss the Service's suggestion that petitioner might be considered to
make an election in favor of the natural parent -- although the motion
urges that an adopted person should not have an election. There is no
election here. Beneficiary is the only mother petitioner now has. The
possibility that petitioner might someday be in a position to petition
for her adoptive mother is so remote that it can have no part in any
realistic appraisal of the situation.
The motion suggests that our original decision should have been based
upon the failure of the record to show petitioner has been legally
adopted under Chinese law and urges that we remand the case for further
evidence on this point. The petition was initially approved on October
15, 1962. Beneficiary is now over 74 years old. Although we noted in
our original decision that the record did not properly develop
petitioner's adoptive status, we were not disposed to remand the case to
overcome deficiencies we considered to be immaterial. If anything, we
are less disposed to do so now.
Finally, the Service declares that our order of October 19, 1964
departs from our other decisions relating to section 101(b)(1)(E). The
motion attaches significance to our resting our decision in Matter of B
upon the age of the child at the time of adoption rather than the
child's nonacquisition of any benefits under the immigration laws
through the adoption. /3/ We see no such significance. The situation
merely presented an obvious basis for decision apart from any question
of benefits arising from the adoption. Moreover, the case was before us
on certification to consider the District Director's decision approving
the petition. Apparently, the District Director reached his decision
because of petitioner's age when adopted.
The motion also cites Matter of Martinelli, unpublished. /4/ There,
we first approved a petition by a mother for her natural daughter, who
had been adopted in Italy at the age of 17. We noted that beneficiary
was over 14 years of age when adopted but preferred to rest our decision
upon the failure of any immigration status or benefit to result from the
adoption. The Service moved for reconsideration of our order. On
reconsideration we found to be appropriate adoption of the doctrine of
Matter of B , which had been decided subsequent to our original order in
Martinelli and just a few days before the Service's motion. Therefore,
we concluded that the petition should be approved on the basis of
petitioner's daughter's age at the time of adoption. Our final action
in Martinelli, did not necessarily repudiate the previous basis for our
decision. As in Matter of B , we simply used another, and perhaps then
more convenient, basis for decision.
In the present motion, counsel for the Service attributes to Matter
of B , the rule that the determining factor is whether the child comes
within the statutory definition of an adopted child. Although we do not
find this specific language in either B or Martinelli, we believe it may
be a fair statement of the rule, but only if properly understood. For
example, as we have emphasized, we consider petitioner here does not
"come within' the statutory definition of an adopted child.
In Matter of K , discussed also in the Service's motion, we held
that, because of the provisions of section 101(b)(1)(E), an adoption at
the age of two years precluded the natural parent of the adopted child
from asserting any right, privilege or status with respect to the child.
/5/ The natural mother, a permanent resident of this country, had filed
the visa petition. The opinion is brief and contains no facts about the
adoptive parents. Nothing indicates whether we considered the
possibility of disregarding the adoption on any basis. Some of the
language in the opinion is quite broad and must be read in the light of
our statements in other matters involving the definition of an adopted
child for immigration purposes -- including our opinion here. We do not
consider Matter of K to be inconsistent with our present holding. The
circumstances in which that opinion was rendered do not sufficiently
appear to determine whether there is any conflict.
Matter of S , in which petitioner had been adopted at 13 years of age
and was petitioning for his natural parents, must also be read in the
light of our ruling here. /6/ The statement from Matter of S quoted in
the Service's motion -- to the effect that the adoption changed, for
immigration purposes, petitioner's preadoption relationship to his
natural parents applies in many, if not most situations, but not in all.
None of the decisions which we have discussed squarely meet the
question of the applicability of section 101(b)(1)(E) where the adoptive
parents are deceased, or presumed deceased. In Matter of B the adoptive
parents, who were petitioner's aunt and uncle were living in Arizona.
Martinelli's adoptive parents -- again an aunt and uncle -- were living
in Italy. Matter of K does not reveal whether the adoptive parents were
alive or dead. The adoptive parents in Matter of S were living in New
York City.
Although we answered the Service's motion when we pointed out the
inapplicability here of the statutory definition of an adopted child, we
have discussed it at some length in an attempt to overcome much apparent
confusion concerning the effect of the definition. Upon cursory
reading, the provision appears to support the Service's position. The
District Director -- as well, apparently, as the consular officer who
returned the approved petition to the Service for consideration under
the definition -- labored under the same misapprehension as the
Service's counsel here. We have not previously had occasion to consider
the precise situation now before us. As a result, some of the language
of our prior opinions has not served to dispel confusion of thought in
this area.
We affirm our order of October 19, 1964. Matter of B , supra, laid
down the rule that an adopted child who could not benefit by the
adoption under the immigration laws because not within the definition of
an adopted child under section 101(b)(1)(E) was not disqualified by the
proviso to that sub-section from receiving the benefit from his natural
parents. Our present decision holds that the prohibition contained in
the proviso also has no application where an adopted child has received
no benefit under the immigration laws through the adoptive parent or
parents and cannot in the future receive such a benefit, as in the
instant case where the adoptive parents are dead (the death of one is
proved; the death of the other is presumed). Hence, there is no reason
for not approving the petition for the natural mother of the petitioner.
We deny the motion.
ORDER: It is ordered that the Service's motion be, and hereby is,
denied.
(1) The motion seeks also reopening of the proceedings for the
presentation of further evidence. We shall consider this aspect later.
(2) Essentially, this was the situation in Matter of B , 9 I. & N.
Dec. 46.
(3) Supra 2.
(4) A-11490302, decided October 19, 1960.
(5) 9 I. & N. Dec. 116.
(6) 9 I. & N. Dec. 567.
Respondent's oral false statements, under oath, in a question-and-answer statement before an officer of this Service in connection with the processing of a visa petition to accord nonquota status to his wife and children, constitute false testimony within the meaning of section 101(f)(6), Immigration and Nationality Act.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry -- No valid immigration visa in violation of section
13(a) of the Act of May 26, 1924.
The case comes forward on motion of the General Counsel, Immigration
and Naturalization Service dated July 26, 1964, requesting that the
Board reconsider and withdraw its order of June 26, 1964, granting the
respondent suspension of deportation and that the respondent's appeal
from the order of the special inquiry officer dated October 22, 1963,
directing that the respondent be deported to China on the charge stated
in the order to show cause be dismissed
The facts are fully set forth in the orders of the special inquiry
officer, the prior order of this Board and the motion for
reconsideration. Briefly, the record relates to a native and citizen of
China, 42 years old, male, married, who last entered the United States
at the port of San Francisco, California on April 20, 1948, claiming to
be the citizen son of Wong Hong, a United States citizen. At that time
he was admitted as a United States citizen without being inspected as an
alien. He now concedes that he is not the son of Wong Hong, that he is
not a citizen of the United States, and that he is deportable on the
charge stated in the order to show cause.
During the course of the deportation hearing the respondent applied
for suspension of deportation under the provisions of section 244(a)(1)
of the Immigration and Nationality Act, as amended, by the Act of
October 24, 1962. The special inquiry officer found that the respondent
satisfied the requisites of continuous physical presence in the United
States for not less than seven years immediately preceding the date of
his application for suspension of deportation and that the respondent's
deportation would result in extreme hardship to himself and to his
77-year-old father who was naturalized a citizen of the United States on
October 21, 1964.
The special inquiry officer found that the respondent satisfied the
requirements of good moral character except for the fact that in his
sworn statement on June 17, 1959, during which respondent was
represented by counsel before an immigrant inspector, the respondent
specifically testified that his name was Wong Chong and presented a
United States citizen identification card to establish his claim. He
was questioned about his relationship to Sam Sing Ngan and denied any
relationship. A visa petition was filed on October 7, 1958, by the
respondent claiming to be a United States citizen, for the issuance of a
nonquota immigrant visa to his spouse and three children. An
investigation conducted in Hong Kong in connection with this visa
petition raised serious questions concerning the status of the
petitioner as a United States citizen and resulted in a denial of the
visa petition. Not until January 1963 did the respondent confess that
he was in fact Ngan Cho On, the son of Ngan Som Shing, confessed his
alleged father, Hong Wong, was not his true father, surrendered for
cancellation his certificate of derivative citizenship dated April 8,
1954, and his Citizen's Identification Card issued June 24, 1954,
expressed repentance at the deception he had practiced in connection
with his entry into the United States and in connection with the visa
petition he had filed for his wife and three children. The special
inquiry officer found that the respondent was precluded from
establishing good moral character under the provisions of section 101(
f)(6) of the Immigration and Nationality Act and therefore had not
established statutory eligibility under the provisions of section 244(
a) of the Immigration and Nationality Act for suspension of deportation.
Section 101(f)(6) of the Immigration and Nationality Act (8 U.S.C.
1101(f)(6)) precludes an alien from establishing good moral character if
during the period for which good moral character is required he "has
given false testimony for the purpose of obtaining any benefits under
this Act.' In our order of June 26, 1964, we held that the word
"testimony' as used in section 101(f)(6) of the Act has been construed
as referring solely to oral statements of witnesses under oath in an
administrative or judicial proceeding and we held that the false oral
statements made by the respondent during the investigation were a
reiteration of the witness' statements submitted in the visa application
and that the respondent had not given false testimony within the meaning
of section 101(f)(6) of the Immigration and Nationality Act. /1/
The Service motion disputes the rationale of our decision and the
disposition of the issue presented in the case as to whether it is false
testimony to gain a benefit under the Immigration and Nationality Act
within the meaning of section 101(f)(6) where the alien lies under oath
in a formal question and answer statement taken before an officer of the
Service in connection with the processing of the visa petition to obtain
nonquota status for his wife and children. Counsel for the respondent
has filed a brief in opposition to the Service motion. After full
consideration of all the circumstances of the case and the arguments set
forth in the motion and brief, it is our conclusion that the motion to
reconsider should be granted.
The respondent's sworn statement of June 17, 1959, was taken before a
Service officer and the respondent was represented by counsel. In that
sworn statement he represented himself as James Chong Wong, also known
as Wong Chong, presented his United States Citizen's Identification
Card, asserted that the Citizen's Identification Card and other papers
were issued under his true name, indicated that his wife had informed
him that the American Consulate at Hong Kong believed he was a "Ngan,'
the son of Sam Sing Ngan, denied that he had ever used the name of Ngan
Cho On, and reiterated that his father's name was Wong Hung also known
as Wong Gong Yon. It is obvious that the respondent at that time was
aware of the fact that he was under investigation by the American
Consultate as a person who had taken an assumed identity but
nevertheless persisted in his claim that he was the son of a United
States citizen. The respondent also presented as a witness, Ngan Sam
Sing, who made a sworn statement to the effect that he had always lived
in the United States and identified the respondent as Wong Chong. Not
until January 1963 did the respondent confess that he was in fact Ngan
Cho On, the son of Ngan Som Shing, who was not a United States citizen
and admit that he had no claim to United States citizenship. It is
clear that this retraction, some three and a half years later, and after
investigation disclosed evidence that the respondent was not in fact the
person he claimed to be, was not timely and was too late to fall within
the doctrine of timely recantation. /2/
It is believed that our reliance upon the case of United States v.
Minker, 350 U.S. 179, was misplaced. The Minker case involved the issue
of whether section 235(a) of the Immigration and Nationality Act,
providing that any immigration officer shall have power to require by
subpoena the attendance and testimony of witnesses before immigration
officers relating to the privilege of any person to enter, reenter,
reside in, or pass through the United States or concerning any matter
which is material and relevant to the enforcement of the Act in its
administration by the Service, empowers an immigration officer to
subpoena a naturalized citizen who is the subject of an investigation by
the Service, where the purpose of the investigation is to determine if
good cause exists for the institution of denaturalization proceedings
under section 340(a) of the Act. The court concluded that Congress had
not provided with sufficient clarity that the subpoena power granted by
section 235(a) extends over persons who are the subjects of
denaturalization investigation and therefore Congress is not to be
deemed to have done so impliedly. In the concurring opinion, Justice
Black stated that the broad powers contained in section 235 of the Act
should be confined in its use of those powers to the treatment of
aliens. The observation in the majority opinion deprecating compulsory
ex parte administrative examinations, untrammeled by the safeguards of
public adversary judicial proceeding, must be read in context to its
reference to prospective defendants in denaturalization suits.
The case of Sharaiha v. Hoy, 169 F.Supp. 598, involved an application
to extend the time of temporary stay to which was attached the
certificate of acceptance bearing a sworn statement by the plaintiff.
In construing the prohibition against a finding of good moral character
by a person who has given false testimony for the purpose of obtaining
any benefit under the Act contained in section 101(f)(6) of the
Immigration and Nationality Act (8 U.S.C. 1101(f)(6)), the District
Court held that the word "testimony,' technically construed, refers
solely to oral utterances of witnesses under oath and held that the
written application for extension of time of temporary stay was not oral
and did not constitute testimony.
In applying the principle of the Sharaiha case, we cited Matter of L
D E , 8 I. & N. Dec. 399. That case involved false statements in an
application for a United States passport. We concluded that false
statements which appear in a written application, whether or not under
oath, do not constitute "testimony' within the meaning of 8 U.S.C.
1101(f)(6).
The true distinction between the instant case and the case cited
above appears in Matter of G L T , 8 I. & N. Dec. 403. That case
involved a person who obtained admission to the United States in 1940
under the fraudulent claim of being a United States citizen. He
acquired a certificate of citizenship in 1947 on the basis of that claim
which was stolen from him in 1953. In January 1954 he was questioned
under oath by an officer of the Service in connection with an
application for a certificate of citizenship to replace the stolen one
and at that time gave false testimony concerning his citizenship. The
special inquiry officer held that due to his false testimony the
respondent was precluded from establishing good moral character by
reason of the provisions of 8 U.S.C. 1101(f)(6). We considered the case
of Sharaiha v. Hoy, 169 F.Supp. 598 holding that false testimony
involved only oral utterances of witnesses under oath but held that the
false information given under oath in the question and answer statement
before an officer of the Service in connection with an application for a
certificate of citizenship in lieu of one lost was, in fact, testimony,
and that the rule stated in Sharaiha v. Hoy had no application.
We believe that the holding in Matter of G L T , supra, is
dispositive of the instant case. The sworn statements in the present
case, given on October 20, 1958, and June 17, 1959 (Exs. 16 & 18) were
given in the form of a formal question-and-answer statement and the
respondent was represented by counsel. The matter involved was a visa
petition which, like the matter involved in Matter of G L T, supra, an
application for a certificate of citizenship in lieu of one lost, is not
an "adversary' proceeding but is rather an ex parte proceeding. It was,
however, a quasi judicial proceeding in that the respondent was placed
under oath by an immigrant inspector and was examined in the presence of
counsel. In the visa petition proceeding he was seeking a benefit under
the immigration laws, namely, the securing of a non-quota status for his
wife and children as the spouse and children of a United States citizen
which he falsely represented himself to be. His oral sworn statements
taken in connection therewith, after investigation had disclosed reason
to doubt the bona fides of the status of the respondent as a citizen of
the United States, constitute testimony as that term is used in section
101(f)(6) (8 U.S.C. 1101(g)(6)) since it was not written but oral and
thus not within the restriction of Sharaiha v. Hoy, supra. As we have
previously pointed out we consider the case of United States v. Minker,
350 U.S. 179 not applicable. Upon the present record, in spite of the
favorable factors of long residence and serious economic detriment to
himself and his elderly citizen father, the application for suspension
of deportation must be denied because of the prohibition contained in
section 101(f)(6) of the Act, the acts constituting which occurred
during the period for which good moral character must be established.
ORDER: It is ordered that our prior order dated June 26, 1964, be
and the same is hereby withdrawn.
It is further ordered that the appeal be and the same is hereby
dismissed.
(1) Citing Matter of L D E , 8 I. & N. Dec. 399; United States v.
Minker, 350 U.S. 179 (1956) and Sharaiha v. Hoy. 169 F.Supp. 598 (S.D.
Cal. 1959).
(2) Matter of M , 9 I. & N. Dec. 118 citing Matter of R R , 3 I. & N.
Dec. 823, in which there was timely recantation without prior exposure
of the admittedly false testimony.
A marriage entered into in Colorado between first cousins, residents
of Illinois, is a valid marriage in Illinois since the evidence
establishes the parties did not go to Colorado with the primary
intention of evading the Illinois statutes prohibiting the marriage of
first cousins and there is no evidence of a strong public policy in the
State of Illinois against such marriages which are valid in the place
where contracted, inasmuch as cohabitation between first cousins is no
longer a crime under Illinois statutes.
The case was originally before us on February 27, 1964 on appeal from
the order of the District Director, Chicago District, dated October 15,
1963, denying the visa petition for the reasons that the petitioner's
marriage to the beneficiary is void under the Illinois Revised Statutes;
Chapter 89, section 1 prohibits marriage between cousins of the first
degree and prohibited marriages are void if contracted in another state
under Chaptep 89, section 19.
The petitioner, a native-born citizen of the United States, seeks
non-quota status on behalf of the beneficiary, a native and citizen of
Japan. The prior marriage of the petitioner was terminated by a decree
of divorce on August 6, 1952. The beneficiary was not previously
married. The parties were married on July 12, 1963 at Denver, Colorado.
The visa petition indicated that the parties are residents of the
State of Illinois and continue to reside in that state. The marriage
certificate, showing the marriage of the parties at Denver, Colorado,
gives their address as Chicago, Illinois. The parties are cousins of
the first degree.
Marriage of cousins of the first degree, if contracted in Illinois by
residents of that state, is prohibited and such marriages are declared
to be incestuous and void under Illinois Revised Statutes, Chapter 89,
section 1. Marriage between first cousins is not prohibited under
Article 9, section 40-9-4 of the Colorado Revised Statutes Annotated,
1953. Chapter 89, section 19 of the Illinois Revised Statutes sets
forth the Uniform Marriage Evasion Act which states that if any resident
of Illinois who continues to reside in Illinois and is prohibited from
contracting marriage in Illinois, goes into another state or country and
there contracts a marriage prohibited and declared void by the laws of
Illinois, such marriage shall be null and void for all purposes in
Illinois with the same effect as though such prohibited marriage had
been entered into in Illinois.
In our prior order dated February 27, 1964 in which we reviewed the
general question of validity of marriages incestuous under the law of
the place of domicile but not under the law of the place of celebration,
in view of 37 Opinions Attorney General 102 (1933), where the Attorney
General found that the citizen petitioner did not go to Poland with the
intention of marrying his niece and therefore was not subject to the
prohibition of Virginia law; and in the light of the new criminal code
of Illinois of 1961, effective January 1, 1962, which in Chapter 38,
Illinois Revised Statutes, section 11-11 (supplanting previous section
375, Criminal Code 1874) no longer made cohabitation between first
cousins the crime of incest, the case was remanded for the purpose of
having sworn statements taken from the parties regarding their intention
in going to Colorado to contract this marriage and to consider the
effect of section 11-11 of the Illinois Criminal Code of 1961.
Sworn statements were taken from the petitioner and the beneficiary
on April 9, 1964, before an immigration officer. The petitioner
testified that he went to Colorado for his present employer to explore
the idea of possibly opening an office in Denver, Colorado; that he
knew of the restriction against marriage of first cousins in the State
of Illinois; that he took the beneficiary with him on this trip to
Denver, Colorado; that they were married there; but that they did not
go to the State of Colorado necessarily to avoid the Illinois law but in
connection with the business for his employer and that because it was an
opportune time, they decided to get married. The wife likewise
testified that her husband had told her that his company's office branch
was going to open in Denver, Colorado and that they might live there and
that they went to Colorado to live there and to get married; and
although she had knowledge from her husband of the Illinois law
prohibiting first cousin marriages, they did not go there specifically
to evade the law but inasmuch as they were there on business and for
possible residence they decided to get married. The petitioner
testified that at the time he was staying with his father and that he
had no lease and if the arrangements about setting up the business in
Denver, Colorado had materialized, he could have arranged to have his
father send his things out to Colorado, where he had previously resided
from 1943 to 1947. The petitioner testified that his work at the
Illinois office piled up to such an extent that his employer told him to
come back and take care of his business and to postpone going back to
Denver, and that the proposition of opening a new office in Colorado was
still an open one. The petitioner's employer was interviewed on August
7, 1964, and stated that he sent the petitioner to Denver, Colorado
during the month of July 1963 on business to make a survey to expand the
agency but he failed to follow through because he lost two of his
technical employees and it was more economical to bring the petitioner
back to fill the gap.
The evidence establishes that the petitioner and the beneficiary did
not go to Colorado with the primary intention of evading the Illinois
statutes prohibiting marriage of cousins of the first degree, thus
falling with the purview of 37 Opinions Attorney General 102. Inasmuch
as the provisions of section 11-11 of Chapter 38, Illinois Revised
Statutes no longer make cohabitation between first cousins a crime,
there is no evidence of a strong public policy in the State of Illinois
against such marriages which are valid in the place where contracted.
The order of the District Director dated August 19, 1964, granting the
petition will be approved.
ORDER: It is ordered that the order of the District Director dated
August 19, 1964, approving the visa petition for nonquota status on
behalf of the beneficiary be and the same is hereby approved.
Conviction of conspiracy to commit an unlawful act (establish gambling games) in violation of 18 Pennsylvania Statutes 4302 is not a conviction of a crime involving moral turpitude.
CHARGES:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) (1958)
-- Convicted of two crimes after entry -- conspiracy to violate Internal
Revenue Laws; conspiracy to establish gaming devices.
This is an appeal by the trial attorney from the order of the special
inquiry officer terminating proceedings. The sole question presented on
this appeal is whether respondent's conviction for conspiracy to
establish gaming devices involves moral turpitude. We agree with the
special inquiry officer that moral turpitude is not involved and will
dismiss the appeal.
Respondent, a 60-year-old married male, a native and citizen of
Italy, last entered the United States in 1921. The gaming conviction in
question occurred on January 16, 1941, when he was convicted of
conspiracy in the Court of Quarter Sessions for Delaware County,
Pennsylvania under 18 P.S. 4302 /1/ for "unlawfully, falsely,
fraudulently, wilfully and maliciously' conspiring to "commit an
unlawful act.' The specifications of the unlawful act are in brief: to
establish gambling games, to permit people to collect for the purpose of
gambling, to solicit people to visit the gambling room, and to exhibit
gaming devices.
These specifications are all included within the crime of
establishing a gambling place under 18 P.S. 4605 /2/ for which
respondent was indicted and convicted on the same day as he was for the
conspiracy charge; however, as the special inquiry officer has pointed
out, there is a specific law relating to enticing persons to gamble (18
P.S. 4606) and there is also the possibility that the specifications
describe in part the crime of pool-selling and bookmaking set forth in
18 P.S. 4607. The special inquiry officer, after examination of the
cases, ruled that none of the substantive crimes mentioned involved
moral turpitude because no proof of an evil intent or malice is required
for conviction. He then applied the immigration rule that a conviction
for conspiracy does not involve moral turpitude unless the substantive
crime does, and terminated proceedings. The trial attorney contends the
conviction involves moral turpitude because the indictment charges a
fraudulent and malicious intent and the use of fraudulent and malicious
means.
It is settled in the immigration laws that the moral turpitude of a
conviction for conspiracy depends upon whether the substantive crime
involves moral turpitude. Matter of B , 6 I. & N. Dec. 98, 105-7. We
see no reason to depart from this rule. Violations of gaming laws do
not ordinarily involve moral turpitude.
Concerning a lottery policy violation (New York Penal Code, article
88, section 974) the Board stated in Matter of Garcia, 56040/601, March
21, 1941, with the approval of the then Attorney General:
* * * Gaming is not an offense eo nomine. It was not in itself
a crime at common law unless conducted in so open a manner as to
constitute a public nuisance. It is true that certain offenses,
solely of a statutory class, may, nevertheless, carry therewith
the element of moral turpitude, but, in those instances, we find
an element which is contrary to public morals, such as fraud or
like ingredients malum in se. There are apparently no judicial
determinations on the exact point, namely, whether gambling, in
violation of a statute prohibiting it, is a crime involving moral
turpitude. The standard by which a misdemeanor, such as gambling,
is to be judged, therefore, is that prevailing in the United
States as a whole, regarding the common view of our people
concerning its moral character.
We find that licensed gambling in connection with horse racing
is permitted in Kentucky, Illinois, Maryland, Nevada and possibly
other States. People have a legal right to gamble until the
Legislature specifically decrees otherwise and such right cannot
be restricted to special forms or certain classes of people
(People v. Revolta (1937) 295 N.Y.S. 102).
The words "involving moral turpitude', as long used in the law
with reference to crimes, refer to conduct which is inherently
base, vile or depraved, contrary to accepted rules of morality,
whether it is or is not punishable as a crime. They do not refer
to conduct which, before it was made punishable as a crime, was
not generally regarded as morally wrong or corrupt, as offensive
to the moral sense as ordinarily developed.
Applying the reasoning of Matter of Garcia, supra, we find that the
substantive crime or crimes involved in the gambling conspiracy charge
do not involve moral turpitude (see United States v. Carrollo, 30 F.
Supp. 3, W.D. Mo. (1939) and Commonwealth v. Mittleman, 36 A.2d 860, 865
(1944). It follows that the conspiracy charge does not involve moral
turpitude.
Moreover, even if the rule in conspiracy cases were otherwise than it
is, the trial attorney's appeal would have to be dismissed because the
gambling conspiracy statute does not require an evil intent. Respondent
was convicted under that portion of the conspiracy statute, prohibiting
the conspiracy to do an unlawful act. The corrupt motive or criminal
intent required for such a conviction is present when the conspirators
knowingly agree to commit the unlawful act -- a fraudulent intent is not
necessary (Commonwealth v. Mittleman, supra). The appeal will be
dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) 18 P.S. 4302. Conspiracy to do unlawful act. Any two or more
persons who falsely and maliciously conspire and agree to cheat and
defraud any person of his moneys, goods, chattels, or other property, or
do any other dishonest, malicious, or unlawful act to the prejudice of
another, are guilty of conspiracy, a misdemeanor, and on conviction,
shall be sentenced to pay a fine not exceeding five hundred dollars
($500), or to undergo imprisonment, by separate or solitary confinement
at labor or by simple imprisonment, not exceeding two (2) years, or
both. 1939, June 24, P.L. 872, Section 302.
(2) 18 P.S. 4605. Establishing gambling places. Whoever sets up or
establishes, or causes to be set up or established, any game or device
of address, or hazard, at which money or other valuable thing may or
shall be played for, or staked or betted upon; or procures, permits,
suffers and allows persons to collect and assemble for the purpose of
playing at, and staking or betting upon such game or device of address,
or hazard, for money or other valuable thing; or whoever, being the
owner, tenant, lessee or occupant of any premises, leases, hires, or
rents the same, or any part thereof, to be used and occupied, or
employed for the purpose of playing at, or staking and betting upon such
game or device of address, or hazard, for money or other valuable thing,
is guilty of a misdemeanor, and on conviction, shall be sentenced to pay
a fine not exceeding five hundred dollars ($500), or undergo
imprisonment not exceeding one (1) year, or both.
The owner of such premises who shall have knowledge that any such
game or device of address, or hazard, has been set up in or upon the
said premises, and shall not forthwith cause complaint to be made
against the person who has set up or established the same, shall be
deemed to have knowingly leased, hired or rented the said premises for
the said purposes.
This section shall not be construed to apply to games of recreation
and exercise, such as billiards, bagatelle, ten pins, etc., where no
betting is allowed. 1939, June 24, P.L. 872, section 605.
Since a nonimmigrant alien who is employed as a chief cook,
supervising 3 to 4 subordinates in the preparation of Japanese fried
food specialties and performing the duties of the main kitchen chef in
the latter's absence, is employed in a "responsible capacity' within the
meaning of 22 CFR 41.41, he is eligible for a change of nonimmigrant
status under section 248, Immigration and Nationality Act, as amended,
to that of an employee of a treaty investor under section
101(a)(15)(E)(ii) of the Act.
This matter is before the Regional Commissioner on appeal from the
denial of the application for change of nonimmigrant status.
The applicant is a married Japanese subject, born August 31, 1930 at
Baguio, Philippines. He was admitted to the United States at Honolulu,
Hawaii an November 22, 1962 under section 101(a)(15)(H)(i) of the
Immigration and Nationality Act on the basis of a petition filed by
Saito Restaurant, Inc., a well-known Japanese eating establishment in
New York City. He was authorized to remain until November 21, 1963. On
October 10, 1963 he applied for change of nonimmigrant status to that of
a treaty investor under section 101(a)(15)(E)(ii) of the Act.
The Saito Restaurant, which has recently moved to a new location,
represents an investment of approximately one million dollars. Its
owners, Mrs. Moto Saito and her son, Tokio Saito, are Japanese Nationals
who are presently maintaining E-2 status. The applicant is in their
employ as a chief cook, supervising three to four others in the
preparation of Japanese fried food specialties. He earns $103 a week
and is provided with meals and living quarters. In denying his
application for change of nonimmigrant status, the District Director
found that the applicant is ineligible for classification as a treaty
investor because he has no financial interest in the restaurant.
Section 101(a)(15)(E)(ii) of the Immigration and Nationality Act
defines a treaty investor as an alien entitled to enter the United
States under and in pursuance of the provisions of a treaty of commerce
and navigation between the United States and the foreign state of which
he is a national, and the spouse and children of any such alien if
accompanying or following to join him, solely to develop and direct the
operations of an enterprise in which he has invested, or of an
enterprise in which he is actively in the process of investing, a
substantial amount of capital. The applicable regulation (22 CFR 41.41)
further provides as follows:
Section 41.41 Treaty investors. (a) An alien shall be
classifiable as a nonimmigrant treaty investor if he establishes
to the satisfaction of the consuler officer that he qualifies
under the provisions of section 101(a)(15)(E)(ii) of the Act and
that: (1) He intends to depart from the United States upon the
termination of his status; and (2) He is an alien who has
invested or is investing capital in a bona fide enterprise and is
not seeking to proceed to the United States in connection with the
investment of a small amount of capital in a marginal enterprise
solely for the purpose of earning a living; or that (3) He is
employed by a treaty investor in a responsible capacity and the
employer is a foreign person or organization of the same
nationality as the applicant.
A Treaty of Friendship, Commerce and Navigation exists between the
United States and Japan. Article VIII of this treaty states, in part,
that nationals and companies of either party shall be permitted to
engage, within the territories of the other party, accountants and other
technical experts, executive personnel, attorneys, agents and other
specialists of their choice. Matter of Kobayashi and Doi, Interim
Decision #1313.
The applicant herein is engaged as chief cook by Japanese nationals
who have invested substantial sums of money in establishing a restaurant
known for its excellent Japanese cuisine. He was brought to the United
States by his employers because of his skill in the preparation of
Japanese dishes. He is not only charged with the responsibility of
supervising several subordinate cooks in preparing fried food
specialties but also performs the duties of the main kitchen chef in the
latter's absence. In contradistinction to the restaurant service
personnel discussed in Matter of Kobayashi and Doi, supra, we find that
the instant applicant is employed in a "responsible capacity' within the
meaning of 22 CFR 41.41 and additionally, may be considered to be a
"specialist' within the contemplation of Article VIII of the
aforementioned treaty between the United States and Japan. Accordingly,
the appeal will be sustained.
It is ordered that the decision of the District Director be reversed
and that the application for change of nonimmigrant status be granted.
An alien is ineligible for nonimmigrant classification under section
101(a)(15)(H)(i), Immigration and Nationality Act, if a first preference
petition in his behalf has been approved for the same position and the
position is permanent in nature; the filing of a first preference
petition may indicate that the position is permanent in nature;
classification as a nonimmigrant under section 101(a)(15)( H)(i) may not
be used as a substitute for classification under section 203(a)(1) to
overcome inability to obtain a quota visa promptly because of
oversubscription of the quota.
DISCUSSION: This case comes before the Regional Commissioner on
certification by the District Director, San Francisco who on October 18,
1963 denied the application for the following reason:
The petition is denied as the position to be filled is
permanent. To be classified as a nonimmigrant, the position to be
filled must be temporary in nature. A first preference immigrant
visa petition was previously approved in behalf of the beneficiary
for the same position.
Petitioner, the University of California, San Francisco Medical
Center, San Francisco, California is engaged in training and research in
the fields of medicine, nursing and pharmacy and desires to import
beneficiary to assume the position of an assistant research biochemist
to be in charge of research into the changes in steroid hormones with
age, nutrition and disease.
Beneficiary is a 38-year-old married male, native and citizen of
Egypt. He was in the United States as an exchange student from August
28, 1955 to November 24, 1960 when he departed to Cairo, Egypt to fill
the position of head of the Cancer Research Unit, National Research
Center in Cairo, Egypt.
On June 24, 1963 the same petitioner submitted a petition to classify
the beneficiary for status as a first preference alien under section
203(a)(1) of the Immigration and Nationality Act to fill the same
position for which now petitioned under section 101(a)(15)(H)(i). That
petition was approved January 18, 1963 and is valid to July 18, 1964.
However, a quota number is not now available. (United States Department
of State quota list of January 2, 1964 shows the priority date for the
United Arab Republic for first preference applicants is December 26,
1962.)
From a study of all the facts in the case, it is concluded that the
position for which the beneficiary's services are sought is of a
permanent nature. The petitioner's prior action in filing a petition to
accord the beneficiary first preference classification under the quota
is indicative of the fact that the petitioner also had so concluded.
The petitioner's urgent need for the beneficiary's services is
conceded, and it is regrettable that the oversubscribed condition of the
quota to which the beneficiary is chargeable prevents him from obtaining
an immigrant visa promptly. However, classification as a nonimmigrant
under section 101(a)(15)(H)(i) of the Immigration and Nationality Act
was not meant to be a substitute for classification under section
203(a)(1) of the Act, to be invoked when the oversubscribed condition of
a beneficiary's quota blocks the prompt issuance of an immigrant visa.
The former classification involves work of a temporary nature, while the
latter classification is not so restricted. Since the position here
involved is of a permanent nature, the petition may not be approved to
accord the beneficiary classification under section 101(a)(15)(H)(i) of
the Act (Matter of M S H , 8 I. & N. Dec. 460).
The instant petition is clearly an effort to bring the beneficiary to
the United States in a nonimmigrant classification to which he is not
entitled under the law in order to overcome his inability to obtain an
immigrant visa promptly. Under the circumstances, it is concluded that
the decision of the District Director was proper and that his decision
must be affirmed.
ORDER: It is ordered that the decision of the District Director to
deny the petition be and the same is hereby affirmed.
Petition to accord nonquota status as a minister of a religious
denomination, pursuant to section 101(a)(27)(F), Immigration and
Nationality Act, is denied since there is no evidence that beneficiary,
who has been a voluntary worker as an evangelist, has ever carried on
the vocation of minister; furthermore, it has not been established he
is seeking to enter solely to carry on the vocation of minister since he
would receive no salary for his church work and would be required to
earn his living by obtaining other employment; neither has it been
established that his services are needed as assistant pastor since the
church has only 40 members and the present pastor is employed 3 days
each week in a different vocation.
The District Director has denied the petition for the following
reasons:
You have failed to establish that the beneficiary has been
continuously, for at least two years immediately preceding the
time of this application, carrying on the vocation of minister of
a religious denomination. Documentary evidence submitted in
support of this application merely establishes that beneficiary
has been a "Deacon'. You have also failed to establish that
beneficiary was ever ordained as a minister.
The matter is now before us on appeal.
The beneficiary is a 46-year-old native of Italy who resides in
Argentina. The only evidence submitted with the petition concerning the
beneficiary's qualifications is a statement dated November 25, 1962 from
the Christian Cultural Assembly (Christian Assembly) in Buenos Aires,
Argentina, which states that he worked in the Fellowship of Christ for
approximately eight years. The document refers to the beneficiary as
Deacon.
On appeal an additional document was submitted from the same
organization which states the beneficiary is an Evangelical Minister at
Buenos Aires and has been a minister since 1958.
The petitioner, the Reverend Joseph Carro, is the pastor of the
Christian Church of West Islip, New York. The petitioner was
interviewed by an officer of this Service on June 26, 1963 and furnished
the following information.
The Church has 40 members and as pastor he receives no salary.
In addition to his duties as pastor the petitioner also works
three days a week at a market. If the petition is approved the
beneficiary would serve as assistant pastor. He would serve the
Church at Sunday services and two evening services weekly. The
beneficiary's brother who is a member of the congregation has
arranged for his employment in a gasoline station and the
beneficiary would receive no salary for his Church work.
The Christian Cultural Assembly in Argentina does not issue
ordination certificates to its ministers, but issues only a
Certificate of Ministry. The petitioner also advised that to his
knowledge the beneficiary has been a voluntary worker as an
Evangelist in Buenos Aires and has not acted as a minister of a
Church performing full ministerial duties.
Section 101(a)(27)(F) of the Immigration and Nationality Act provides
that, in order to be eligible for nonquota classification as a minister,
it must be established that the beneficiary is "an immigrant who
continuously for at least two years immediately preceding the time of
his application for admission to the United States has been, and who
seeks to enter the United States solely for the purpose of carrying on
the vocation of minister of a religious denomination, and whose services
are needed by such religious denomination having a bona fide
organization in the United States; . . .'
Section 42.25(c), Title 22, Code of Federal Regulations, provides as
follows:
The term "minister' as used in section 101(a)(27)(F) of the
Act, means a person duly authorized by a recognized religious
denomination having a bona fide organization in the United States
to conduct religious worship, and to perform other duties usually
performed by a regularly ordained pastor or clergyman of such
denomination. The term shall not include a lay preacher not
authorized to perform the duties usually performed by a regularly
ordained pastor or clergyman of the denomination of which he is a
member, and shall not include a nun, lay brother or cantor.
We have carefully examined the entire record in this case. Although
the beneficiary has been issued a Certificate of Ministry, he was
apparently able to acquire this document without completing any
prescribed course of training or acquiring any formal theological
education. Moreover, there is no evidence that the beneficiary has ever
carried on the vocation of a minister of a religious denomination. We
therefore find that it has not been satisfactorily established that the
beneficiary is a minister within the meaning of section 101(a)(27)( F)
of the Immigration and Nationality Act and 22 CFR 42.25(c).
Additionally, the statute requires that the beneficiary be seeking to
enter solely for the purpose of carrying on his vocation of minister of
a religious denomination and that his services be needed. In this case
the beneficiary would receive no salary for his work with the Church and
would be required to earn his living by obtaining other employment.
Also, the Church which has only 40 members and whose present pastor is
employed three days each week in a different vocation has not
satisfactorily established its need for an assistant minister.
In view of the foregoing we find that the petition cannot be
approved. The appeal will be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.
The district director has authority to require the posting of a bond
as a condition precedent to the granting of a petition filed pursuant to
section 214(c), Immigration and Nationality Act, to accord nonimmigrant
classification under section 101(a)(15)(H) of the Act.
This matter is presently before us on appeal from the district
director's decision of February 13, 1962 denying this petition on the
ground that the petitioner failed to comply with conditions set forth by
this Service, to wit: the posting of a thousand-dollar maintenance of
status and departure bond.
Counsel, both in his appeal brief and oral argument, contends that
the district director, acting for the Attorney General, is without power
to require the posting of bond as a condition precedent to the granting
of a petition under section 214(c) of the Immigration and Nationality
Act. It is his position that such bond may only be exacted at the time
the alien beneficiary actually applies for admission to the United
States.
Under the broad authority granted the Attorney General to regulate
the admission of nonimmigrants, the exaction of bond is within the
powers inherent in the grant even in the absence of express statutory
authority. Where the bond is neither unlawful nor prohibited, it is
entirely valid and enforceable. U.S. v. Wolper, 2 Cir., 86 F.2d 715 and
cases cited therein.
The power of the Attorney General to promulgate regulations requiring
the posting of bond is based not only on 8 U.S.C.A. 1184(a) but also on
8 U.S.C.A. 1103(a). Earle v. U.S., 254 F.2d 384 (C.A. 2, 1958),
certiorari denied 358 U.S. 822. Section 1184(a) reads as follows:
The admission to the United States of any alien as a
nonimmigrant shall be for such time and under such conditions as
the Attorney General may by regulation prescribe, including when
he deems necessary the giving of a bond with sufficient surety in
such sum and containing such conditions as the Attorney General
shall prescribe, to insure that at the expiration of such time or
upon failure to maintain the status under which he was admitted,
or to maintain any status subsequently acquired under section 1258
of this title, such alien will depart from the United States.
Section 1103(a) which sets forth the powers and duties of the
Attorney General provides, in part, as follows:
. . . He shall establish such regulations; prescribe such
forms of bond, reports, entries, and other papers; issue such
instructions; and perform such other acts as he deems necessary
for carrying out his authority under the provisions of this
chapter. . . .
Form I-129B, Petition to Classify Nonimmigrant as Temporary Worker or
Trainee, is included in 8 CFR 299.1 as a form prescribed by the Attorney
General, and 8 CFR 214.4 specifies that such a petition shall be made on
Form I-129B. Page 3 of this form requires that the petitioner express
his willingness to post bond "as a condition to the approval of the
petition' (italics supplied). Under the provisions of 8 CFR 103.2, the
instructions contained on a petition are "incorporated into the
particular section of the regulations requiring its submission.'
In view of the foregoing, we find that the district director's
request that the petitioner post a thousand-dollar maintenance of status
and departure bond is both reasonable and proper. Accordingly, his
decision will be affirmed.
It is ordered that the decision of the district director denying this
petition be and same is hereby affirmed.
An alien who entered as a nonimmigrant student and who was born in
the United States but was expatriated under section 401(e) of the
Nationality Act of 1940 is not precluded by section 245(c), Immigration
and Nationality Act, as amended, from adjusting her status to that of a
lawful permanent resident under section 245(a) of the Act since she is
not, in fact, a native of a country contiguous to the United States,
even though under section 202(a)(3) of the Act she is considered, for
quota purposes, as having been born in Canada and to be a nonquota
immigrant under section 101(a)(27)(C) of the Act.
The applicant was born in Meade, Kansas on August 3, 1910 and was a
United States citizen at birth. Her parents were also born in the
United States. Her father first went to Canada on May 15, 1912, being
followed on August 23, 1912 by the applicant, her mother, and other
children in the family. Her father was naturalized in Canada on April
19, 1915. In April 1920, the applicant and family returned to the
United States. On September 11, 1923, the applicant returned to Candada
and was married in 1931 to Stanley Moorman, a naturalized citizen of
Canada.
The applicant voluntarily voted in Canadian provincial elections on
May 10, 1952 and September 19, 1956. At that time she knew she had been
born in the United States and the record does not establish that she had
been informed by any official that she had no claim to United States
citizenship. By her act of voting on May 10, 1952, the applicant lost
her United States citizenship under the provisions of section 401(e) of
the Nationality Act of 1940.
Section 245 of the Immigration and Nationality Act, as amended,
provides that the status of an alien who was inspected and admitted or
paroled into the United States may be adjusted by the Attorney General,
in his discretion, to that of an alien lawfully admitted for permanent
residence. Subparagraph (c) of section 245 further provides that the
provisions of the section shall not be applicable to any alien who is ".
. . a native of any country contiguous to the United States . . .'.
Section 202(a)(3) of the Act provides that "an alien born in the
United States shall be considered as having been born in the country of
which he is a citizen or subject, or if he is not a citizen or subject
of any country then in the last foreign country in which he had his
residence as determined by the consular officer;'.
The last-cited section serves the purpose of providing a means to
determine the quota to which an immigrant born in the United States
shall be chargeable. Under the terms of this section, the applicant is
considered to be a nonquota immigrant under section 101(a)(27)(C) of the
Act, as though she were born in Canada. Although by its terms, the
applicant, for quota purposes, is considered as having been born in
Canada, she is not, as a matter of fact, a native of Canada, a country
contiguous to the United States. She is not precluded under section
245(c), therefore, from being granted status as a lawful permanent
resident.
The applicant last entered the United States on January 28, 1963 as a
student in practical nursing under the provisions of section 101(a)(
15)(F) of the Act. She was inspected and admitted. She is in all
respects eligible to have her status adjusted to that of a lawful
permanent resident under section 245 and her application will be
granted.
It is ordered that the application for status as a lawful permanent
resident under section 245 of the Immigration and Nationality Act, as
amended, be approved.
Application under section 248, Immigration and Nationality Act, for
change of nonimmigrant status from visitor to that of student is denied,
in the exercise of discretion, to a 49-year-old mother of 4 children who
has no disclosed income or assets of her own; who has enrolled in a
12-class-hours per week course in designing at an estimated cost of
$2,500 per annum; and who, for maintenance, tuition and expenses
(except for any undisclosed support received from her husband in
Jamaica) is dependent upon her cousin who is under no legal obligation
to support her, and concerning whom considerable doubt exists as to
whether his income and assets are adequate for him to assume the burden
of supporting the applicant in the United States.
This matter is before the Regional Commissioner on appeal from the
decision of the District Director at New York, who has denied the
applicant's request for change of status from that of a visitor to that
of a student on the ground that since she attends classes for only
twelve hours per week and there is no extensive outside study, she is
not a full-time student. Additionally, he has concluded that the nature
of the applicant's schooling, her age, the time she has been in the
United States as a visitor, her hours of attendance at school and the
affidavits of support, indicate that Mrs. Buckland is only attempting to
prolong her stay in the United States.
The applicant is a citizen of Jamaica who was born on March 22, 1915
at Portland, Jamaica. She was admitted to the United States on June 15,
1963, at New York, New York, as a visitor to August 14, 1963. An
extension of stay was granted to her on August 2, 1963 for the perido up
to November 14, 1963 and she was advised that this was her final
extension. On October 7, 1963 her application for change of status was
received in the New York office, together with the completed certificate
of eligibility from the Mayer School of Fashion Design, which indicated
that the applicant had enrolled in a course in designing, the cost of
which was estimated at $2,500 per annum. The present application
indicates Mrs. Buckland is married, and that her husband resides in
Kingston, Jamaica. This application has not been completed in the space
provided for the names and ages of the children, but the applicant's
prior request for an extension of stay was completed to show that she
has four children.
The applicant has also presented (1) an affidavit of support dated
September 12, 1963 and completed by Roy George Whitelock, her cousin;
(2) a statement by Cute Miss Coats Inc. dated September 25, 1963
reciting the employment of Roy Whitelock at earnings of $85 per week and
(3) a statement on the stationery of Paragon Progressive Federal Credit
Union dated October 4, 1963 and reciting the existence of a share
(savings) account in which Roy Whitlock has a balance of $1,222.14. A
further letter from the Mayer School of Fashion Design dated October 26,
1963 has been submitted by the applicant which advises that Mrs. Lillian
Buckland was enrolled in a designing course; that she attends twelve
class hours per week and will devote five to ten hours per week to her
homework. Counsel, during oral argument in support of this appeal, has
furnished a letter from the Mayer School of Fashion Design in which the
attendance of the applicant at this school since October 6, 1963 in
acknowledged. It also advises that her course of study will continue to
February 7, 1965.
The record in this case, including the argument submitted by counsel
in connection with his appeal, has been carefully reviewed. The
applicant is a 49-year-old mother of four children, who has no disclosed
income or assets of her own and is dependent, except for what
contributions she may receive from her husband, after maintaining
himself and their four children, upon Roy Whitelock for maintenance,
tuition and expenses. No evidence has been submitted as to the amount
of support which she receives from her husband. It is also noted that
her cousin is under no legal obligation to support her and there is
considerable doubt as to whether his income and assets are adequate for
him to assume the burden of supporting the applicant in the United
States. The applicant's desire to engage in an educational program in
dress designing has not been manifested in any way prior to her
application for change in status. She came to the United States to
visit a friend and has accomplished this purpose. Under all of the
circumstances present in this proceeding, it is concluded that her
request for a change of status does not, as a matter of discretion,
warrant approval.
It is ordered that this appeal be and the same is hereby dismissed.
To be eligible for nonquota status under section 2, Act of October
24, 1962, the retention of status proviso to section 2 of that Act
requires that as of the date of the application for adjustment of status
under section 245, Immigration and Nationality Act, the beneficiary must
have been performing the duties for which his services were sought in
the approved petition filed in his behalf prior to April 1, 1962; such
nonquota status is retained notwithstanding a change from his original
employment between the date of filing and date of final adjudication of
his section 245 application since such change of employment, which
resulted in the approval of another first-preference visa petition in
his behalf, was a continuation of research commenced and was effected,
under the same research grant, to take advantage of better facilities.
Cf. Matter of Gupta, Int. Dec. No. 1402.
The applications for adjustment of status under section 245, 8 U.S.
C. 1255, of the Immigration and Nationality Act were denied by the
Officer in Charge, Milwaukee, Wisconsin on August 22, 1963, on the
ground that immigrant visas were not immediately available to the
applicants. On December 26, 1963, the applications were reopened and
certified to this office "for such further consideration as may be
warranted.'
The principal applicant, Dr. Ya-Pin Lee, born at Taipeh, Formosa on
October 23, 1924, was admitted to the United States on July 20, 1955, as
an exchange visitor. He had received an M.D. degree from National
Taiwan University, Formosa in 1949 and a Ph. D. from Kyushu University
in Japan in 1955. He conducted post-doctorate research in biological
chemistry at the Enzyme Institute of the Univeristy of Wisconsin from
July 1955 to September 1957, at the Washington University School of
Medicine from September 1957 to September 1959 and again at the
University of Wisconsin from September 1959 to July 1, 1963, at which
time he accepted the position of Hill Research Professor of Biochemistry
at the University of North Dakota, which position he holds presently.
There is ample evidence that subject is outstanding in his field and
that he has made important contributions to medical science.
Dr. Lee was married in Taiwan to Lin-lin Liu on December 7, 1950.
She was born at Taipeh on July 11, 1925. They have three children, all
born at Taipeh: Andrew Shu-tsung, October 31, 1951; Nicolos
Chien-tung, August 30, 1953; and Benedict Chien-nan, December 4, 1954.
The principal applicant was subject to the two-year foreign residence
requirement of section 212(e), 8 U.S.C. 1182(e), by virtue of his
admission to the United States as an exchange alien. However, on
October 26, 1959 the foreign residence requirement was waived by the
Service upon the favorable recommendation of the Secretary of State
pursuant to the request of the Department of Defense.
On October 28, 1959, the University of Wisconsin filed a petition to
accord Dr. Lee first preference status as a Research Biochemist. The
petition was approved on December 15, 1959, and subsequently revalidated
to December 15, 1962. Following the enactment of P.L. 87-885 on
October 24, 1962, which accorded nonquota status under certain
conditions to beneficiaries of first preference petitions filed prior to
April 1, 1962, he and his family, who had been paroled into the United
States on October 22, 1961, were invited by the Service to apply for
adjustment of status to permanent residents. This they did on November
20, 1962. It is noted that the principal applicant was then and
continued to be until July 1, 1963, employed by the University of
Wisconsin performing the duties set forth in the visa petition filed
October 28, 1959.
As part of the processing of the applications, requests for
information from consular records were forwarded to the United States
Embassy at Taipeh on December 12 and December 13, 1962, pursuant to
outstanding instructions, as the applicants had resided in Taiwan prior
to entering the United States. By January 3, 1963, all required action
had been taken and all documents necessary to adjudicate the case had
been received, except for the report from the Embassy.
The Embassy, at that time, had received an unprecedented number of
similar requests in connection with other former residents of Taiwan who
had simultaneously become prima facie eligible for adjustment of status
through the enactment of P.L. 87-885 on October 24, 1962. As a result,
the response from the Embassy, which contained no derogatory
information, was not received by the Service until August 19, 1963.
When the consular report was received, a routine letter was forwarded
to the University of Wisconsin, applicant's petitioner, to ascertain if
applicants were still entitled to first preference status. Upon being
advised that Dr. Lee had transferred to the University of North Dakota
on July 1, 1963, the applicants were advised on August 22, 1963, that
inasmuch as Dr. Lee was no longer employed by the petitioner, they were
no longer entitled to nonquota status (under section 2 of P.L. 87-885);
further that approval of their applications for adjustment of status was
contingent upon immigrant visas being immediately available and that,
since visas under the quota for Chinese persons, to which they were
chargeable, were not available, the applications were denied.
Subsequently, on September 4, 1963, a petition by Dr. Lee's present
employer, the University of North Dakota, was filed to accord him first
preference quota status as Research Professor of Biochemistry. This
petition was approved on September 16, 1963.
The following is quoted from a December 2, 1963, letter to the
Service from Dr. Henry Lardy, Professor of Biochemistry and Chairman of
the Enzyme Institute at the University of Wisconsin:
Dr. Lee's work has dealt mainly with the mode of action of the
thyroid hormones, a problem that is of importance not only to
medicine but to problems of stress and adaptation to unusual
environments. The work that Dr. Lee was carrying out at the
University of Wisconsin is being continued by him at his new post.
He is completing experiments started in this laboratory, and is
expanding his program because of additional facilities available
to him at the University of North Dakota.
The following is excerpted from a November 22, 1963, letter to the
Service from W. E. Cornatzer, Ph.D., M.D., Professor and Head of the
Department of Biochemistry and Director of the Ireland Research
Laboratory at the University of North Dakota:
Dr. Lee is conducting the same research that he was doing at
the University of Wisconsin. In fact, he is still carrying out
jointly research with Dr. Henry Lardy of the University of
Wisconsin. I have asked Dr. Lardy to write you a letter to
confirm this. Dr. Lardy filed the First Preference Quota for Dr.
Lee December 15, 1959.
Dr. Lee's salary at the University of Wisconsin was being paid
by U.S. Public Health Research Grant. Dr. Lee transferred this
same research grant to the University of North Dakota for him to
continue his research. His salary now is being paid by another
research grant given to the University of North Dakota.
The foregoing indicates that Dr. Lee was continuing the research
commenced at the University of Wisconsin, under the same grant, and had
transferred his operations to the University of North Dakota to take
advantage of the better facilities there.
It now becomes necessary to examine the statute which accorded
applicant nonquota status on October 24, 1962. Section 2 of the Act of
October 24, 1962, P.L. 87-885, provides as follows:
Any alien eligible for a quota immigrant status under the
provisions of section 203(a)(1) of the Immigration and Nationality
Act (8 U.S.C. 1153) on the basis of a petition filed with the
Attorney General prior to April 1, 1962, shall be held to be a
nonquota immigrant and may be issued a nonquota immigrant visa:
Provided. That upon his application for an immigrant visa and for
admission to the United States or for adjustment of his immigrant
status in the United States pursuant to section 245 of the
Immigration and Nationality Act (8 U.S.C. 1255) the alien is found
to have retained his status as established in the approved
petition. This section shall be applicable only to aliens
admissible to the United States except for the fact that an
immigrant visa is not promptly available for issuance to them
because the first 50 per centum of the quota of the quota area to
which they are chargeable is oversubscribed by beneficiaries of
petitions approved by the Attorney General pursuant to sections
203(a)(1) and 204 of the Immigration the Nationality Act (8 U.S.
C. 1153, 1154) prior to the date of enactment of this Act.
Section 2 of the Act of October 24, 1962, was remedial in nature,
intended to benefit aliens (A) whose services had been determined by the
Attorney General to be needed urgently in the United States because of
the high education, technical training, specialized experience, or
exceptional ability of such immigrants and to be substantially
beneficial prospectively to the national economy, cultural interests, or
welfare of the United States, and (B) to qualified quota immigrants who
are the spouse or children of any immigrant described in clause (A) if
accompanying or following to join him. As such, it may be construed
liberally. However, the provisions of that section require nothing more
than an ordinary and reasonable interpretation to reach the conclusion
that the instant applications could and should have been granted. It
accords nonquota status to the beneficiary of a first preference
petition filed prior to April 1, 1962, Provided, That, upon his
application for (1) an immigrant visa and for admission to the United
States or (2) adjustment of his immigrant status in the United States
pursuant to section 245 of the Immigration and Nationality Act, the
alien is found to have retained his status as established in the
approved petition.
Section 2 of the Act of October 24, 1962, is interpreted as requiring
that as of the date of application for adjustment of status the
applicant must have been performing the duties for which his services
were sought, in the employ of the petitioner whose approved petition in
his behalf was filed prior to April 1, 1962. Under this remedial
legislation, to hold that the applicant must have remained in the employ
of that petitioner after the application for adjustment was filed and
until it was approved, would work undue hardship upon highly qualified
aliens, such as Dr. Lee, whose services are needed urgently and who,
although not employed by the original petitioner at the time of
adjustment of status, might be performing even more important services
for another petitioner. To hold otherwise might penalize deserving
aliens, such as Dr. Lee, because of delays in the administrative
processing of their cases, perhaps completely unreasonable and certainly
beyond their control, and might well deny this country the full benefit
of their talents and abilities if they were to be held captive in their
original jobs, afraid to accept more progressively responsible positions
in their fields lest they lose the nonquota status accorded them. It is
the opinion of the Service that this was not the intent of Congress in
enacting this remedial legislation, and to so hold would circumvent the
statute's true purpose.
This is not the case of an alien who used the device of a first
preference petition to gain a beneficial quota (or nonquota)
classification and having gained that benefit wilfully abandoned the
vocation or profession so that his urgently needed services were lost to
the United States. Such a case would warrant denial of the application
for adjustment as a matter of discretion. As indicated above, the
applicant in this case is actually engaged in the same field as that
which was found to warrant approval of the original visa petition in his
behalf.
It having been satisfactorily established that the applicants are
entitled to nonquota status pursuant to section 2 of the Act of October
24, 1962, are eligible in all respects to receive immigrant visas and
are admissible to the United States, their applications will be granted.
ORDER: It is ordered that the order of the Officer in Charge,
Milwaukee be and the same is hereby withdrawn.
It is further ordered that the applications for status as permanent
residents be and the same are hereby granted.
The beneficiaries, members of a singing and acting comedy troupe
which has been the subject of many favorable trade paper reports and
comments by theatrical critics of the New York newspapers and theatrical
press, possess "exceptional ability' within the contemplation of section
203(a)(1)(A), Immigration and Nationality Act, and are eligible for
first preference classification.
These matters are before the Regional Commissioner on appeal from the
decision of the District Director at New York, New York who has found it
necessary to deny each of these petitions for first preference quota
status in the belief that no substantial evidence has been submitted to
show that each possesses the degree of exceptional ability contemplated
by section 203(a)(1) of the Immigration and Nationality Act or that the
services of each would be beneficial prospectively to the cultural
interest of the United States.
The petitioner is a theatrical agency in New York, New York which has
been in business during the past ten years. The petitioner and the
beneficiaries are signatory to a one year contract with an option for a
second year. The four beneficiaries are the personnel of a singing and
acting comedy troupe known as "The Four Ayalons.' They have been in the
United States filling entertainment engagements during the past several
months.
The evidence accompanying these petitions discloses that this group
has earned an income of $47,435 between October 1, 1962 and September
30, 1963 and that during this time the group has been the subject of
many favorable newspaper and trade paper reports.
Among the letters evidencing employment or favorable commendations
are those from Joey Adams, President of the American Guild of Variety
Artists; Jennie Grossinger, the operator of Grossinger's Hotel and a
member of the Board of Directors of the America-Israeli Cultural
Foundation and the chairman of Music Alliance; Dan Barker; Charlie
Manna, comic baritone; Buddy Walker; Monroe B. Hack, Director of
Entertainment at Tamiment, In-The-Poconos; Al Datz, Director of ABC
Music Library; Roy Davis, New York Branch Manager of the American Guild
of Variety Artists; Michael Golan, Algon Theatrical Enterprises,
Records; Philip Sevush, The Eldorado, Fallsburg, New York; David
Rivlin, Consul of Israel at New York, New York, and I. M. Biderman,
Director of the Jewish National Fund, Department of Youth and Education.
The Ayalons have appeared at the New York Town House under the
sponsorship of the Yeshiva College Student Council; at Carnegie Hall,
New York as a part of the Chanukah Stars of the 1962-63 season; at the
Rego Park Jewish Center under the sponsorship of the Sisterhood; at the
Mayfair Club; and for fourteen months at Leo Fuld's, Cafe Sahbra.
This group has been the subject of the following comments by the
theatrical critics of the New York newspapers and theatrical press:
""The Ayalons', all four handsome youths, have the voices and
ability to click as a quartet of enthusiastic singers. Their
comedy acts are a howl.' -- Wear (Variety)
"The Four Ayalons, a quarter of bright young comics who sing,
dance, mug and kid our local heroes with a deft touch.' -- Martin
Burden (N.Y. Post)
"Israel's leading comedy vocal quartet, The Ayalons, in their
lively act of broad comedy is more American than many American
acts.' -- Gene Knight (The New York Journal American)
"The Four Ayalons who combine some refreshing comedy, satire
and impressions should be hitting top T.V. programs before long.'
-- Frank Queen (New York Mirror)
"Those zany Four Ayalons, Israel's top comedy group, scoring a
big hit in the U.S.' -- Ted Green (Radio Daily and T.V. Daily)
"The Four Ayalons, singing pranksters who are especially
puckish in skits beguiling to Jew and Gentile alike.' -- Eugine
Boe (Cue Magazine)
"Then term "exceptional ability' as used in section 203(a)(1)(A) of
the Immigration and Nationality Act, contemplates something more than
what is usual, ordinary or common, and requires some rare or unusual
talent, or unique or extraordinary ability in an occupation, profession,
or calling which requires talent or skill. Whether or not a person
possesses exceptional ability must, as a general rule, rest upon the
opinions of persons who are qualified experts in the field in which the
exceptional ability is claimed. Expert testimony is excepted from the
general rule relating to opinion evidence, and constitutes admissible
evidence which may be weighed and considered with all other evidence,
because it informs about matters gained by study or practical
experience, not within the full understanding of the average person.'
Matter of T C F F C , 5 I. & N. Dec. 454.
From all of the evidence of record, it is concluded that the
beneficiaries are entertainers of exceptional ability. For the reasons
stated this petition will be granted.
It is ordered that the appeal be sustained and the petition granted.
Section 212(h) waiver of inadmissibility under section 212(a)(19),
Immigration and Nationality Act, as amended, is granted to applicant who
has evidenced complete reformation and rehabilitation since his
misrepresentations in securing a border-crossing card in 1960; whose
exclusion would result in serious hardship to his dependent citizen wife
and child, and whose admission would not be contrary to the welfare,
safety or security of the United States.
The applicant is a male, native and citizen of Mexico, born on March
1, 1940. He was married in Chicago, Illinois on May 25, 1963 to a
native-born citizen of the United States.
This is the first marriage for both the applicant and his spouse.
They are parents of one child who was born on September 20, 1962 in
Chicago, Illinois. This child is living with the applicant's wife in
Chicago.
The applicant has been in the United States on one prior occasion and
was found by the Consular Officer to be eligible for a visa for
permanent residence in all respects except for excludability under
section 212(a)(19) of the Immigration and Nationality Act.
In testimony before an Officer of this Service on August 13, 1963, in
Mexico, D.F., Mexico, the applicant testified that he secured a
nonresident alien border crossing identification card by making false
statements concerning his intentions with regard to employment in the
United States. He testified that in connection with his application for
the card he stated he did not intend to work in the United States in
order to conceal his real intention of engaging in employment at the
first opportunity. He stated that he entered the United States at
Laredo, Texas on February 20, 1960 with a non-immigrant border crossing
card and went directly to Chicago, Illinois and obtained employment.
The applicant testified that he had never committed any other act or
offense which might render him inadmissible to the United States or
subject him to criminal prosecution.
The applicant testified that he first met his wife in 1960 and had
gone steadily with her until their marriage on May 25, 1963. He stated
that he had supported his wife and child since his marriage and would
assume complete obligation for their support if he were granted a waiver
of excludability.
The applicant stated that he was employed while in Chicago, Illinois
for an athletic goods manufacturing concern earning $2.90 per hour and
that he will be rehired by this firm if he is allowed to return to the
United States as a permanent resident. He testified that he and his
wife had no real property but that they had completely paid for
household goods valued at $1200.00. He stated that he had left his wife
sufficient funds to live on while he was out of the United States
arranging for his legal entry.
Applicant's wife was interviewed by a Service officer on September 4,
1963 at Chicago, Illinois and corroborated his statements relative to
their marital history. She stated that she was aware that her husband
entered the United States illegally but that it made no difference to
her and that it was her desire that he be allowed to join her in the
United States as a permanent resident. She stated that the applicant
had left her some money to live on while he was in Mexico but that it
was now exhausted and she had been forced to move in with her sister.
She testified that she could not accept employment because her child was
so young and she had to remain home to care for him. She stated that if
her husband was refused an immigrant visa it would create a serious
economic hardship for her and her United States citizen child. She
testified that to the best of her knowledge, the applicant has never
committed any other act or offense which might render him inadmissible
to the United States.
Records of other investigative agencies were checked regarding the
applicant and his spouse with negative results. A neighborhood
investigation conducted by an officer of this Service was favorable to
the grant of a waiver of excludability.
The misrepresentation which presently bars the applicant from
admission to the United States was committed in February 1960. He has a
clear record since that date and there is evidence that his complete
reformation and rehabilitation have been accomplished. There is no
evidence to indicate that his admission to the United States would be
contrary to the national welfare, safety or security. It has been
satisfactorily established that his exclusion from the United States
would result in serious hardship for his citizen wife and child.
ORDER: It is ordered that the application for waiver of
excludability under section 212(a)(19) of the Immigration and
Nationality Act, be and is hereby granted pursuant to the authority
contained in section 212(h) of the Immigration and Nationality Act,
Provided, That the waiver shall apply only to the grounds for exclusion
described herein.
Because of his record of arrests, his several convictions, and the
fact that since his deportation in 1960 he has again been convicted of a
crime and only recently released from imprisonment, applicant, a
27-year-old unmarried male, is denied permission to reapply for
admission, pursuant to section 212(a)(17), Immigration and Nationality
Act, in the exercise of discretion; moreover, since applicant is
mandatorily excludable from the United States under section 212(a)(9) of
the Act and is ineligible to apply for a waiver of this ground of
excludability, no purpose would be served in granting the application.
This is an appeal from the decision of the District Director who has,
as a matter of discretion, denied the application for permission to
reapply for admission to the United States after deportation.
The applicant, a 27-year-old unmarried native and citizen of Great
Britain, entered the United States on August 10, 1957 for permanent
residence. Deportation proceedings were instituted on July 20, 1959,
and he was ordered deported as one who, after entry, had been convicted
of two crimes involving moral turpitude, to wit: forgery, and
interstate transportation of a stolen automobile. The execution of the
deportation order was delayed pending the outcome of his application for
a pardon for the crime of forgery. While this application was pending,
the applicant was convicted, upon his plea of guilty of unauthorized use
of a motor vehicle and sentenced to thirty days imprisonment. His
pardon application was subsequently denied by the Governor of the State
of New Jersey, and on February 24, 1960, he was deported to England.
According to the record, after he returned to England, he was convicted
of a crime, the nature of which is not stated in the record, and has
recently been released from custody after several years' imprisonment.
On appeal, counsel claims that the applicant was wrongfully deported.
It is contended that one of the crimes (Interstate Transportation of a
Stolen Motor Vehicle, Section 2312, Title 18 U.S. C.), upon which his
deportation was based, does not involve moral turpitude. We do not
agree with counsel's contention. The applicant was convicted, upon his
plea of guilty, to the offense of "Interstate Transportation of a Stolen
Motor Vehicle knowing same to have been stolen.' The Board of
Immigration Appeals has found that the offense is one which involves
moral turpitude. Matter of C R , 8 I. & N. Dec. 59. In any event, the
applicant's deportation is a "fait accompli' and cannot be retracted or
vitiated by this proceeding.
The applicant is seeking permission to reenter the United States as a
permanent resident. His parents reside here and have both requested
that the application be granted. We have carefully examined the record
in this case including the statements submitted in support of the
appeal. We find that the applicant's record of arrests, his several
convictions, the fact that since his deportation he has apparently again
been convicted of a crime and has only recently been released from
imprisonment, all support the decision of the District Director that the
instant application does not merit the favorable exercise of discretion.
Moreover, it is evident that the applicant is mandatorily excludable
from the United States under the provisions of section 212(a)(9) and is
ineligible to apply for a waiver of this ground of excludability.
Consequently, no purpose would be served in granting the application.
The appeal will be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.
Petition to accord nonquota status to beneficiary-child, as defined
in section 101(b)(1)(F), Immigration and Nationality Act, as amended, is
denied since, pursuant to section 205(b) of the Act, the preadoption
requirements of the State of New York have not been complied with and
the petitioner and spouse, who have 6 children of their own, have not
established ability to properly case for the beneficiary in view of
their spasmodic work records, the difficulties which they have
experienced in maintaining rent payments and the presence of their names
on the welfare records.
This matter is before the Regional Commissioner on appeal from the
decision of the District Director at New York who has denied this
petition in the belief that the petitioners have not satisfactorily
established that they will be able to properly care for the orphan
beneficiary.
The petitioner is a native-born United States citizen, born at
Brooklyn, New York, on March 16, 1933. Her husband is a British subject
born at St. Peter's, Barbados, British West Indies, on April 18, 1928.
Their marriage took place on December 19, 1953. Six children, nine,
eight, seven, four, three and four months, have been born to the
petitioner and spouse and reside with them in their apartment in
Brooklyn. The beneficiary is one of the eight children of E C , four of
whom, including the beneficiary, were born to her out of wedlock as a
result of relations with the petitioner's spouse. The beneficiary's
mother has consented to this adoption and has indicated in her affidavit
that the petitioner intends to petition, in the near future, for the two
other children who are still under fourteen years of age. She has also
stated that the petitioner's spouse has been continuously sending her
between $30 and $40 a month for the support of the children. It is her
feeling that the beneficiary's best interests will be served by this
adoption and that the child can get a better education in the United
States.
The petitioner's spouse was employed by the Friendly Frost Stores as
a truck driver or helper and in March 1963 was being paid $2.41 1/2 to
$2.58 1/2 an hour, depending upon whether he worked as a driver or
helper. Work at that time was scarce and for the previous ten weeks his
earnings had totaled $289.27. He had previously worked for F. G.
Walker Shipping Company, 360 Sumner Avenue, Brooklyn, where he had
earned $367 between August 3, and September 30, 1960. The petitioner
has been employed at the Brooklyn Hospital since November 25, 1961,
receives an hourly rate of $1.80, is classified as a practical nurse,
and usually works from twenty to thirty hours per week. She was
employed as a practical nurse by the Kings County Hospital between
October 16, 1956, and July 8, 1958, and was previously employed in an
unidentified capacity at the Cumberland Hospital between June 1, 1953,
and November 3, 1955. The withholding tax statement for the
petitioner's spouse for 1962 reflects earnings of $5893.61 and for the
petitioner, earnings are shown $1916.36. Seven dependents are reflected
in the male petitioner's W-2 report.
The New York City Welfare Department records show that the petitioner
and spouse were on welfare from February 11, 1960, to August 15, 1960,
and again from March 13, 1961, to June 22, 1961. The New York City
Housing Authority records reflect that the petitioner and spouse have
been delinquent in rent payments thirteen times between October 1960 and
March 1961. Counsel has submitted photostatic copies of a rent receipt
booklet which reflect balances due on the petitioner's account. Among
these is a balance of $267 in June of this year. This was reduced to
$17 as of November 1963. Counsel has also submitted a letter from a
real estate office indicating that its author, Stanley Siebert, has
examined the petitioner's rent payment record and has stated that it is
definitely far above the average. He bases this conclusion upon local
conditions and the fact that the petitioner and spouse have always paid
within the month. Further evidence of the petitioner's financial
resources is found in a letter from the First National City Bank of New
York reciting the maintenance of an account since August 4, 1961, with a
balance on February 21, 1963, of $607.69.
Section 115-a, Domestic Relations Law of the State of New York, as
amended April 14, 1962, Chapter 527, Laws of New York, requires that a
preadoption certificate be issued by an appropriate adoption court,
unless the child is recommended for placement with the petitioner for
adoption by an adoption agency approved by that State. In the case
under consideration, there is neither a preadoption certificate from a
court nor a placement recommendation from an approved agency.
Inasmuch as this preadoption requirement of New York State, the state
of the beneficiary's proposed residence, has not been complied with, as
required by section 205(b) of the Immigration and Nationality Act, as
amended, it is concluded that favorable consideration on this petition
is precluded. In addition, it is also apparent, from the presence of
the names of the petitioner and spouse on the welfare records, the
difficulties which they have experienced in maintaining rent payments,
and their spasmodic work records, that they are already committed to
obligations for the support of their six children which have become
burdensome. The ability of the petitioner and spouse to care for the
beneficiary properly, as required by section 205(b), has also not been
established satisfactorily. For the reasons stated above, this petition
cannot be approved.
It is ordered that the decision of the District Director denying this
petition be and the same is hereby affirmed.
Approval of a visa petition to accord respondent nonquota status on the basis of his marriage to a United States citizen does not preclude denial of respondent's application for adjustment of status under section 245, Immigration and Nationality Act, as amended, in deportation proceedings, in the exercise of discretion, based on doubt as to the bona fides of that marriage.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) -- Entry
as nonimmigrant, remained longer.
An order entered by the special inquiry officer in the
above-captioned case on February 20, 1963 grants the respondent
voluntary departure in lieu of deportation as an alien who after entry
as a nonimmigrant visitor remained longer than permitted. The Board of
Immigration Appeals on May 31, 1963 dismissed the respondent's appeal
from the special inquiry officer's order.
Thereafter, in October of 1963 the respondent moved the Board of
Immigration Appeals to reopen the proceedings to permit further
application for relief under section 245 of the Immigration and
Nationality Act. Supporting the motion was evidence of the fact that
the respondent's first wife had divorced him; that he had married
another United States citizen and that a petition requesting nonquota
status filed by his second wife had been accepted by the Immigration
Service on October 8, 1963. The Board of Immigration Appeals on
November 14, 1963 ordered the hearing reopened for the consideration of
such applications for discretionary relief as may be filed.
The respondent's further application for adjustment of status under
section 245 was before the special inquiry officer in hearings accorded
him on December 18, 1963 and January 21, 1964. The special inquiry
officer is of the opinion that the respondent's marriages to citizens of
the United States were solely for the purpose of procuring permanent
residence in the United States. He denied relief under section 245 as a
matter of discretion. The respondent appeals from this decision of the
special inquiry officer, dated January 30, 1964.
The respondent is a native and citizen of Jordan, male, married, 33
years of age, who last entered the United States at San Juan, Puerto
Rico on July 19, 1961. He was admitted as a nonimmigrant visitor and
thereafter granted extensions until February 4, 1963 within which to
depart from the United States. The issue of deportability is not before
us and the order entered by the special inquiry officer on February 20,
1963 granting voluntary departure is outstanding.
The respondent testified that he met his present wife in October of
1962 when he was still married to his first wife. According to his
testimony he determined to marry her but waited until he actually was
divorced by his first wife in March of 1963. When the respondent was
interrogated by his attorney at the first hearing, he testified that he
believed that he and his first wife had come to an amicable family
agreement. The special inquiry officer is of the opinion that the
respondent must have been aware that divorce proceedings had been
instituted and this factor when coupled with his apparent haste to
remarry during the pendency of his first appeal, certainly renders his
second marriage suspect. The special inquiry officer also states that
his suspicion is further enhanced by the testimony of both wives as to
the manner in which the respondent proposed to them, the length of time
they knew him prior to the proposals, his interrogations as to their
citizenship and marital status, and in the case of the second wife, her
lack of schooling and general worldly knowledge.
Counsel's brief in support of the appeal urges error in the special
inquiry officer's decision denying respondent's application for status
as a permanent resident alien. He maintains that inasmuch as the
District Director has approved a visa petition for nonquota status filed
by the respondent's second wife thereby acknowledging the bona fides of
respondent's second marriage, the special inquiry officer's decision
denying relief under section 245 on the basis of doubt as to the bona
fides of the said marriage is arbitrary, capricious and not supported by
the facts developed during the reopened hearings.
A petition to accord nonquota immigration status under section 101(
a)(27)(A) of the Immigration and Nationality Act is filed pursuant to
the provisions of section 205 of the same Act. It is a proceeding
separate and apart from an application for relief under section 245 of
the Immigration and Nationality Act. Pursuant to 8 CFR 205.1 the
petitioner, who must be a citizen or an alien lawfully admitted for
permanent residence, has the right of appeal to the Board of Immigration
Appeals if the petition is denied by the District Director. The
application before us is a proceeding initiated by the alien.
Under 8 CFR 245.2, an application for a change of status to that of a
permanent resident alien may only be considered by a special inquiry
officer in a proceeding under 8 CFR 242 after the alien has been served
with an order to show cause. 8 CFR 242.8 provides the special inquiry
officer with ample authority to exercise his discretion under section
245 of the Immigration and Nationality Act on the basis of a conclusion
which is inapposite to a decision reached by the District Director under
sections 101(a)(27)(A) and 205 of the same Act.
We find no error in the decision of the special inquiry officer. We
will affirm the order granting voluntary departure entered on February
20, 1963 and will dismiss this appeal.
ORDER: It is directed that the appeal be and the same is hereby
dismissed. The order entered by the special inquiry officer on February
20, 1963 granting the alien voluntary departure in lieu of deportation
and further providing for his deportation if the alien fails to depart
when and as required, is hereby affirmed.
Since the approval of the prior visa petition filed by beneficiary's
first wife to accord him nonquota status was revoked and such revocation
resulted in the denial of his application for adjustment of status under
section 245, Immigration and Nationality Act, as amended, beneficiary
has not been previously accorded a nonquota status within the meaning of
section 205(c) of the Act, as amended Amarante v. Rosenberg, 326 F.2d
58 (C.A. 9, 1964) .
The case comes forward on appeal from the order of the Officer in
Charge, Palermo, Italy dated April 3, 1964 denying the visa petition for
the reasons more fully set forth in the attached order of April 2, 1964
accompanying such denial.
The facts are summarized in the memorandum accompanying the order.
The petitioner, a native and citizen of the United States, 32 years old,
seeks nonquota status and behalf of the beneficiary, a native and
citizen of Italy, 32 years old. The parties were married at Palermo,
Italy on October 19, 1963. The petitioner was not previously married.
The beneficiary was previously married to a citizen of the United States
on August 16, 1961 in Hempstead, Long Island, New York. This marriage
was terminated by annulment by decree of the Supreme Court of New York,
Nassau County, New York in an interlocutory judgment dated April 19,
1963 which became final as of course three months after the entry and
filing, the filing date being April 22, 1963. The petitioner and the
beneficiary are cousins. A certificate reciting their marriage on
October 19, 1963 at Palermo, Italy has been submitted and it is assumed
that the marriage is valid. Both the petitioner and the beneficiary
have executed sworn statements at Palermo, Italy before an immigration
officer in which they declare they are living together as man and wife
and that the marriage was not for the purpose of aiding the beneficiary
to enter the United States.
The beneficiary's file discloses that he entered the United States as
a visitor on January 20, 1961 and the terminal date of his temporary
stay in the United States was on or before August 20, 1961. However,
the petitioner married his first wife, a United States citizen, on
August 16, 1961 and the following day a visa petition for nonquota
status and application for status as a permanent resident were filed at
the New York office. The visa petition, after being approved on
September 12, 1961, was withdrawn by the first wife and was revoked on
January 26, 1962. As the result the application for permanent residence
status was denied on February 2, 1962 on the ground that an immigration
visa was not available. The beneficiary was found deportable in
deportation proceedings under section 241(a)(2) of the Immigration and
Nationality Act and was granted the privilege of voluntary departure
with an alternate order that should he not depart when required, he be
deported to Italy on the charge contained in the order to show cause.
The memorandum of the Officer in Charge indicates that the beneficiary
was deported on June 29, 1962 but the file before us does not contain
any verification thereof.
The basis for denial by the Officer in Charge of the visa petition is
predicated upon section 205(c) of the Immigration and Nationality Act as
amended which provides that no petition shall be approved if the alien
previously has been accorded, by reason of marriage determined by the
Attorney General to have been entered into for the purpose of evading
the immigration laws, a nonquota status under section 101(a)( 27)(A) as
the spouse of a citizen of the United States. The Officer in Charge
concludes that the beneficiary was "accorded' a nonquota status when the
visa petition filed by the first wife of the beneficiary, Amalia
Pisciotta nee Gubbo, was approved by the New York office. He likewise
concluded that that first marriage had been entered into for the purpose
of evading the immigration laws.
The conclusion that the alien had been accorded a nonquota status
when the visa petition was approved followed the administrative decision
in Matter of A , 9 I. & N. Dec. 705. However, that conclusion was
reversed in the case of Amarante v. Rosenberg, 326 F.2d 58 (1964), which
held that when the consular officer acts favorably on a visa or when the
Attorney General acts favorably on an application for adjustment of
status of an alien married to a citizen, the alien is thereby "accorded'
nonquota immigrant status within the meaning of section 205(c) of the
Immigration and Nationality Act, but not when the petition of the
citizen spouse is approved.
In the instant case the visa petition for nonquota status on behalf
of the beneficiary filed by the first wife was granted and then revoked
and as the result of that revocation, the application for permanent
resident status was denied. Under the holding of the court in Amarante
v. Rosenberg, supra, the alien beneficiary has not previously been
accorded a nonquota status and he does not fall within the proscription
contained in section 205(c) of the Immigration and Nationality Act. The
appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the visa
petition be approved for nonquota status on behalf of the beneficiary.
The 10-year period of physical presence and good moral character "immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation,' required to establish eligibility for suspension of deportation under section 244(a)(2), Immigration and Nationality Act, as amended, begins to run from the time an alien first became deportable Fong v. Immigration and Naturalization Service, 308 F.2d 191 (C.A. 9, 1962) Matter of V R , 9 I. & N. Dec. 340 overruled, in part.
CHARGES:
Warrant: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) (1958) -- Excludable at entry -- No visa.
Lodged: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) (1958) -- Excludable at entry -- No permission to reapply.
Act of 1952 -- Section 241(a)(5) 8 U.S.C. 1251(a)(5) (1958) -- Failed
to report address.
The question presented by the special inquiry officer is whether the
10 years "immediately following the commission of an act, or assumption
of a status, constituting a ground for deportation' begins to run from
the time an alien first became deportable or last became deportable.
Respondent first became deportable by reentering illegally in 1952 and
last became deportable by failing to report his address in January 1955.
Respondent a 37-year-old divorced male, last a native and citizen of
Roumania and allegedly stateless entered the United States illegally in
1946. He was ordered deported; he is considered as having deported
himself when he departed from the United States to Mexico on a short
visit while in uniform in 1951. He last reentered illegally after a
visit to Mexico in January 1952.
In 1955, respondent was placed under deportation proceedings on the
grounds that he was without the proper documents at the time of his
reentry in January 1952, that he had not been granted permission to
reapply for admission after his deportation, and that he had failed to
furnish notification of his address in January 1955. He was ordered
deported on all charges.
Respondent applied for suspension of deportation; on May 26, 1964,
the special inquiry officer entered an order granting his application.
The special inquiry officer found that the respondent had established
that 10 years elapsed since he first became deportable and that he had
the residence and character required during the necessary 10-year
period. The special inquiry officer fixed the commencement of the
10-year period from the time the "respondent first became deportable' --
respondent's return without documents or permission to reapply in
January 1952. In selecting January 1952, when respondent first became
deportable, as the beginning of the 10-year period rather than January
1955, when respondent last became deportable, the special inquiry
officer relied upon Louie King Fong v. Immigration and Naturalization
Service, 308 F.2d 191 (9th Cir., 1962). After his order was served, the
special inquiry officer became aware of the conflict between his
decision and a Board precedent (Matter of V R$03, 9 I. & N. Dec. 340)
which stated that the 10-year period starts with the time of the last
commission of the act making the alien deportable rather than the first
commission of the act. The special inquiry officer thereupon certified
the case to the Board for final decision.
In Louie King Fong, the circuit court carefully considered the
specific problem as to whether the first or last deportable act was to
constitute the basis for computing continuous residence in the United
States for suspension of deportation; therefore, despite a recent
statement to the contrary (Krug v. Pederson, N.D., Ohio, C62-376, June
24, 1964, the court by way of dicta stated that the 10-year period ran
from the time of the last failure to furnish an address report), we
believe the circut court's ruling must control. Matter of V R , 9 I. &
N. Dec. 340, is overruled insofar as it is inconsistent with the
decision of the circuit court concerning the basis for computing the
commencement of the period for which residence and good moral character
must be established in suspension of deportation cases.
We shall return the case to the jurisdiction of the special inquiry
officer so that he may make such amendment as may be necessary in his
order submitting the case for suspension of deportation.
ORDER: It is ordered that the case be returned to the special
inquiry officer for such further action as is consistent with what we
have stated in our opinion.
A conviction for drawing a check with insufficient funds in violation of section 21-554, Kansas General Statutes (1949), is not a conviction of a crime involving moral turpitude.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) (1958)
-- Convicted of two crimes involving moral turpitude after entry --
Selling mortgaged property, violation of check law.
This is an appeal from the order of the special inquiry officer
finding respondent deportable upon the ground stated above.
Respondent, a 35-year-old divorced male, a native of Ireland and
citizen of Great Britain, was admitted to the United States for
permanent residence on December 14, 1954. On March 7, 1961, he was
convicted of the crime of selling mortgaged property, and on February
27, 1961, he was convicted of the crime of drawing a check with
insufficient funds in violation of Kan. Gen. Stat. 1949, ch. 21, sec.
554. The issue before us is whether the check conviction involves moral
turpitude.
The pertinent sections of the Kansas Statutes follow:
It shall be unlawful for any person, corporation, or
partnership, to draw, make, utter, issue or deliver to another any
check or draft on any bank or depository for the payment of money
or its equivalent, knowing at the time of the making, drawing,
uttering or delivery of any such check or draft as aforesaid that
he has no funds on deposit in or credits with such bank or
depository with which to pay such check or draft upon
presentation. (G.S. 1949, 21-554)
That in any case where a prosecution is begun under this act
the defendant shall have a right, upon application made for that
purpose before trial, to have said action abated by showing to the
court or judge that he has had an account in said bank upon which
check or draft was drawn, thirty days next prior to the time said
check or draft was delivered and that said check or draft was
drawn upon said bank without intent to defraud the party receiving
the same, and if the court shall so find, said action shall be
abated and the defendant shall be discharged upon paying into the
court the amount of such check and the costs in said case. (G.S.
1949, 21-556)
The special inquiry officer found that moral turpitude was involved
because Matter of M , 9 I. & N. Dec. 743, required him to so find.
Counsel contends that it is well settled that intent to defraud is not
an element of the offense of passing a worthless check. The Service
representative holds that intent to defraud is an element. Both rely
upon State v. Morris, 372 P.2d 282 (1962). We find the crime does not
involve moral turpitude.
Matter of M , supra, involved a worthless check conviction in the
Virgin Islands under a law which did not expressly make intent to
defraud an element of the crime; however, the Board found that such an
intent was an element from the fact that conviction could be obtained
only upon proof of knowledge on the part of the maker that he lacked
funds in the bank to pay the check. The language of the opinion is
broad and will require a re-examination when this section is again
before us; however it is not controlling here since the question as to
whether intent to defraud is an element of the crime before us has been
passed upon by the courts of the jurisdiction involved.
Before we examine the decisional law of Kansas concerning the
sections before us, it would be well to consider generally the issue of
moral turpitude as it relates to a worthless check conviction. Moral
turpitude is found when the intent to defraud is a necessary element of
the crime. When conviction for the drawing of a worthless check is
possible without proof of an intent to do evil, moral turpitude is not
present because the conviction is possible even though the drawer may
have intended to pay the check: one who draws a check knowing he has no
funds to pay it but who expects to pay it, may be misguided, overly
optimistic, and unsound in his judgment but he need not act with intent
to cheat, and it is in the intent that moral turpitude lies. It may be,
that in many worthless check cases, an intent to defraud is actually
present; however, if the statute does not require that such an intent
be established, moral turpitude is not involved in the conviction -- it
is the moral obliquity of a crime and not of the individual which is the
test; if the crime as defined does not inherently involve moral
turpitude, then, no matter how immoral the conduct which is the basis
for the conviction, the crime does not involve moral turpitude (Matter
of Kinney, Int. Dec. No. 1343).
We may now consider G.S. 1949, 21-555. The cases unanimously hold
that an intent to defraud is not an element of the crime defined by G.
S. 1949, 21-555. The crime is committed when a check is wilfully drawn
with knowledge at the time that there are no funds on deposit to meet
it. No proof need be made that payment was not intended or that there
was an intent to deprive a person of his property (see State v. Avery,
207 P. 838 (1922)). Despite the unanimity of the cases, G.S. 1949,
21-556 providing for abatement of an action, if the drawer of a
worthless check establishes that "intent to defraud' was not an element,
appears to raise a question as to whether fraud is not an element of the
crime. The apparent inconsistency between the court cases and the
language of 21-556 disappears when it is realized that the term "intent
to defraud' as used in the section, is a term of art which refers not to
proof of an intent to cheat, but to mere proof that a check was drawn
with knowledge of the nonexistence of funds to pay it.
The two sections are discussed in State v. Morris, supra, cited by
both counsel and the Service representative in support of their
respective positions; for this reason, and because it is one of the
latest expressions of the court on the matter we shall set forth in
detail the court's statement.
3 State v. Avery, 111 Kan. 588, 589, 207 P. 838, 23 A.L.R.
453, is the landmark case which construed and applied the statutes
under which the defendant was convicted. It was there held that
an intent to defraud was not an element of the offense and was not
essential to the validity of the statute (G.S. 1949, 21-554).
Whatever the state of mind of the defendant may be technically
called, he must have knowledge that he cannot meet the check when
presented for payment and he must act willfully. In the opinion
it was said:
"* * * The worthless check must be willfully drawn, knowing at
the time there are no funds on deposit to meet it. Beyond that,
the legislature may, for protection of the public interest,
require persons to act at their peril, and may punish the doing of
a forbidden act without regard to the knowledge, intention,
motive, or moral turpitude of the doer. * * *
"* * * The purpose of the statute was to discourage overdrafts
and resulting bad banking (Saylors v. State Bank, 99 Kan. 515,
518, 163 P. 454) to stop the practice of "checkkiting,' and
generally to avert the mischief to trade, commerce and banking
which the circulation of worthless checks inflicts. Although the
statute tends to suppress fraud committed by the worthless-check
method, the evils referred to are all quite distinct from those
consequent on fraud, and the statute is to be regarded as creating
a new and distinct offense. * * *' (111 Kan. l.c. 590, 591, 707
P. l.c. 839).
* * * * * * *
In State v. Gillen, 151 Kan. 359, 99 P.2d 832, the defendant
there made the argument that if intent to defraud was an element
of the abatement statute (G.S. 1949, 21-556), then it must be an
element of the insufficient funds statute (G.S. 1949, 21-554),
since, he argued, "that if intent is an element in one instance it
is in another.' This court disposed of the contention by saying:
"* * * The question of whether intent was to be an element was
for the legislature. We are satisfied the Avery case correctly
disposes of the matter of intent as an element of the crime of
which appellant was charged and convicted.' (151 Kan. 1. c. 363,
99 P.2d 1. c. 835.)
5 The purpose of the legislature in passing the abatement
statute (21-556) was to give a right to any person who made an
innocent mistake in issuing a check which is dishonored upon
presentation by reason of insufficient funds with which to pay it,
to correct his mistake and thus avoid any record of a criminal
prosecution. Whatever contradiction there may be between the
insufficient fund check statute (21-554) and the abatement statute
(21-556), we think it apparent from the Avery and Gillen decisions
that the so-called intent to defraud was construed to be present
whenever money, property or other thing of value was parted with
by the person to whom the check was given, and that it is
incumbent upon the defendant to negate that intent by showing that
he had no intention to willfully issue the check, knowing at the
time he had no funds on deposit in the bank to pay it upon
presentation.
Since it is clear that an intent to defraud, that is, an intent to
cheat or deprive a person of his property, is not an element of the
crime for which respondent was convicted, moral turpitude is not
involved in his conviction. The record does not establish respondent
has been twice convicted for two crimes involving moral turpitude; the
appeal must be sustained.
ORDER: It is ordered that the appeal be and the same is hereby
sustained and that the proceedings be terminated.
Expatriation under section 349(a)(4)(B), Immigration and Nationality Act, is established when it is demonstrated that an oath of allegiance is required for the specified employment (Cuban National Police) and the individual concerned held such employment.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182 --
Immigrant, no visa.
The special inquiry officer, in an order dated April 3, 1964,
directed that the applicant be admitted to the United States as a
citizen hereof. The Service appeal from that decision, which brings the
case before this Board for consideration, will be sustained. The
applicant's exclusion from the United States on the above-stated ground
will be ordered.
The record relates to a 42-year-old married male, a native of Cuba,
who acquired United States citizenship by virtue of naturalization on
September 2, 1955. On July 1, 1957, he proceeded to Cuba and within a
brief period of time after arrival there, through the efforts of his
brother who was a captain of the Cuban National Police, was appointed to
that organization. /1/ He retained his position therein from July of
1957 until January 13, 1959. On the latter date, he was arrested by
officials of the Castro Government and imprisoned until January 19,
1962. He arrived in the United States on December 27, 1962, in the
status of a Cuban refugee and was paroled into this country as such.
When he eventually thereafter decided to advance his claim to United
States citizenship, this exclusion proceeding resulted.
The crux of this case is whether the applicant lost his United States
citizenship, by virtue of his employment in the Cuban National Police,
under the provisions of section 349(a)(4)(B) of the Immigration and
Nationality Act (8 U.S.C. 1481), which reads as follows:
From and after the effective date of this Act /2/ a person who
is a national of the United States whether by birth or
naturalization, shall lose his nationality by -- accepting,
serving in, or performing the duties of any office, post, or
employment under the government of a foreign state or a political
subdivision thereof, for which office, post, or employment an
oath, affirmation, or declaration of allegiance is required;
(Emphasis supplied.)
The special inquiry officer has answered this question in the
negative, on the basis of a conclusion that an actual taking of an oath
of allegiance had to be established, and a finding that the Government
had not met its burden of proof in establishing this fact. We, however,
disagree with the special inquiry officer, holding that the use of the
word "required' in the statute does not have the significance attached
to it by the special inquiry officer. Accordingly, and for the reasons
hereinafter set forth, his decision will be reversed.
In enacting subsection (2) of the statute here under consideration,
the Congress of the United States specifically provided that loss of
nationality would result from the "taking an oath or making an
affirmation or other formal declaration of allegiance to a foreign state
or a political subdivision thereof.' In view of this prior provision
within the statute, the special inquiry officer's interpretation renders
subsection (4)(B) thereof completely unnecessary. In other words, if
the fact of taking the oath was essential, the Congress would have
stopped with the enactment of subsection (2) and subsection (4)(B) would
be meaningless. We cannot and will not attribute such a useless gesture
to the Congress of the United States. It is, therefore, our conclusion
that expatriation is established under the statutory provision here
under consideration when it is demonstrated that an oath of allegiance
is "required' for a certain position and that the party concerned held
such a position. In reaching this result, we have applied the
fundamental rule of statutory construction that ordinary words must be
given their ordinary meaning.
Thus, we take cognizance of the fact that lexicographers unanimously
accord to the word "required' the essential element of compulsion.
Also, Law Decree 1958 of January 25, 1955, the organic law of the Cuban
National Police, set forth in a letter from the law library of the
Library of Congress, dated July 30, 1963 (Ex. No. 6), Article 197, sets
forth that an oath of allegiance was a "must' for any person entering
the service of the National Police. In addition, the Government
produced as a witness one Colonel Esteban Ventura Novo who from 1956 to
1957 was in charge of the training, education and recruiting policemen
in Cuba and who testified (Ex. 7) that he knew from his own knowledge
that all members of the Cuban National Police were required to subscribe
to the oath of allegiance since he was the person who had to administer
the oath; and that the oath was taken before the Cuban flag. He
further testified that it was not possible for any person, through the
exercise of any political influence whatsoever, to be appointed to the
Cuban National Police and not be required to take the oath because he
would never have permitted it. The Government also produced an
affidavit signed by a Colonel Marino Paget, a Lieutenant Colonel with
the Cuban National Police who retired after 27 years of service in that
organization, wherein the affiant set forth that he had personal
knowledge that any person entering on duty with the Cuban National
Police was required to take an oath of allegiance to the Republic of
Cuba. Finally, on this point, the applicant did not deny this evidence,
but merely claimed that he did not remember whether he took the oath.
Under these circumstances, we find that it is established, not only by a
preponderance of the evidence but also clearly and convincingly, that an
oath of allegiance to the Cuban Government was "required' of the
position occupied in Cuba by this applicant.
There is no question in our mind but that the duties performed by the
applicant in connection with his position in the Cuban National Police
constituted serving in the employment of a foreign state within the
contemplation of this statute. As will be made clear by a discussion of
the oath which is a necessary concomitant of that employment, infra, it
is clear that the position encompassed service in or in behalf of a
foreign government the performance of which required absolute allegiance
to the employing government and necessarily excluded allegiance to the
Government of the United States. That is the test to be applied under
this section of the law (Kamada v. Dulles, 145 F.Supp. 457).
The letter from the Library of Congress previously referred to (Ex.
6) sets forth that the oath of office which must be taken by any person
entering the service of the Cuban National Police, whether as officer,
cadet, or member of the corps, is as follows:
I . . ., in the service of the Republic of Cuba, solemnly swear
(or promise) that I will support and defend the precepts of the
Constitution, Laws and Government of the Republic, against all
national or foreign enemies; that I accept this duty freely,
wthout mental reservation or intention to avoid its performance,
and that I shall discharge well and faithfully the duties of my
office.
Certainly, there can be no doubt that the foregoing constitutes an
oath within the meaning of this section of the law. As we read it, that
oath places the person taking it in complete subjection to the state to
which it is taken, at least for the period of contract, so that it is
impossible for him to perform the obligations of citizenship of this
country. This is the proper test to be applied in such a case
(Fletes-Mora v. Rogers, 160 F.Supp. 215 at 218).
Finally, on this point, no issue of duress in connection with the
employment has been raised by the applicant. Also, careful analysis of
the record reveals that no such a claim could be substantiated. The
applicant, a citizen of the United States, left this country of his own
volition and proceeded to Cuba where he obtained the position in
question with the influence of his brother
Accordingly, and since the applicant lacked documents valid for
admission into the United States as an alien at the time of his
above-described last arrival, his excludability on the above-stated
ground is established.
ORDER: It is ordered that the Service appeal be sustained; that the
special inquiry officer's order of April 3, 1964, be withdrawn; and
that the applicant be excluded and deported from the United States on
the above-stated ground.
(1) He had been a member thereof for a period of about 15 days in
1952.
(2) December 24, 1952.
Since an indeterminate sentence is a sentence for the maximum term, respondent's sentence under section 1168a, California Penal Code, to imprisonment for an offense punishable under applicable California statute by imprisonment from 6 months to 10 years, is a sentence to confinement for a year or more within the meaning of section 241(a)(4), Immigration and Nationality Act.
CHARGES:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251 -- Convicted of crime involving moral turpitude, committed within five years of entry, and sentenced to imprisonment for year or more, to wit: Grand theft (1963).
Lodged: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251 --
Nonimmigrant (temporary visitor) -- Failed to comply with conditions of
status.
The special inquiry officer, in a decision dated December 10, 1963,
directed that the respondent be deported from the United States to Hong
Kong on the lodged charge only. The trial attorney has appealed to this
Board from that decision, urging that the charge stated in the order to
show cause should also have been sustained.
The record relates to a married female alien, a native of Hong Kong,
British Crown Colony, and a subject of Great Britain. She entered the
United States for the first, last and only time on or about March 9,
1963. She was then admitted as a nonimmigrant temporary visitor for a
period until September 8, 1963. However, on or about July 6, 1963, she
was arrested at San Francisco, California, and charged with violations
of sections 182 and 487 of the Penal Code of the State of California.
She was subsequently convicted, on October 11, 1963, in the Superior
Court of the State of California, in and for the City and County of San
Francisco, of the offense of grand theft, in violation of section 487 of
the Penal Code of California, the crime having been committed on or
about May 28, 1963.
The special inquiry officer has sustained the charge of deportability
lodged at the hearing on the basis of a prior precedent decision of this
Board (Matter of A , 6 I. & N. Dec. 762). We therein held that an alien
in the United States as a temporary visitor for pleasure who was
convicted of an offense and sentenced to confinement as a result thereof
was no longer pursuing the purpose for which he was admitted and was,
therefore, out of status within the purview of section 241(a)(9) of the
Immigration and Nationality Act, ante. The foregoing facts of record
bring this case clearly within the scope of that decision. In the light
thereof, we agree with the special inquiry officer that the charge
lodged at the bearing is sustained.
The crime of grand theft of which the respondent stands convicted,
ante, involves moral turpitude (Matter of V T , 2 I. & N. Dec. 213 at
214). Her crime was committed on or about May 28, 1963, which is within
five years of her last entry on or about March 9, 1963. She has been
confined since her conviction, but the period thereof does not yet
amount to one year. The only issue before us, therefore, is whether the
respondent has been sentenced to confinement "for a year or more.'
Upon her foregoing conviction, the respondent was sentenced to
imprisonment in the California State Prison, for the term provided by
law, and was thereafter ordered delivered to the superintendent of the
California Institution for Women at Corona, California. This action was
in accord with section 1168a of the California Penal Code, which reads:
Every female convicted of a public offense, for which
imprisonment in any State prison is now prescribed by law shall,
unless such convicted female is placed on probation, a new trial
granted, or the imposing of sentence suspended, be sentenced to
detention at the California Institution for Women, but the court
in imposing the sentence shall not fix the term or duration of the
period of detention.
Under such a statute, the judgment of the court properly consists of
a recital of the offense, a designation of the prison to which the
defendant is committed, and nothing more (People v. Mendosa, 178 C.
590, 173 P. 998). Thus, the failure of the judgment to have included
the phrase "as provided by law' would not have rendered the order of
commitment invalid (People v. Youders, 96 C.A.2d 562, 215 P.2d 743).
The extent of "the term provided by law' as applied to this case is
determined by sections 489 and 18b of the California Penal Code. The
former makes grand theft punishable by imprisonment in the county jail
for not more than one year or in the State prison for not more than ten
years. The latter, a minimum term statute of general application,
provides that the duration of the respondent's period of detention may
be as short as six months (see In re Humphrey, 64 C.A. 572, 22 P. 366).
The crux of this case, therefore, is whether under California law the
minimum or maximum limit of an "indeterminate sentence' of from six
months to ten years is determinative. In the light of the following
authorities, we hold that it is a sentence for the maximum term.
The courts of California have uniformly held that an indeterminate
sentence under section 1168 of the California Penal Code is in legal
effect a sentence for the maximum term (People v. Lumbley, 68 P.2d 354).
In so doing, they have pointed out that the statutes dealing with the
Indeterminate Sentence Law do not infringe the right of due process of
law because the judgment pursuant thereto is in legal effect a sentence
for the maximum term and is, therefore, certain and definite (In re
Bandamann, 51 C.2d 388, 333 P.2d 339) rather than being unconstitutional
as "void for vagueness' (People v. Leiva, 285 P.2d 46). They have also
pointed out that the pronouncing of sentence thereunder is a judicial
act; that the punishment which the sentence pronounces comes from the
law itself, and is established or provided for by the legislature; and
that the act does not confer upon the Board of Trustees of the
California Institution for Women (post) the right to determine the
punishment that any given crime shall bear (In re Larsen, 283 P.2d
1043).
The foregoing is consistent with federal court rulings (see U.S. ex
rel. Paladino v. Commissioner, 43 F.2d 821) to the effect that
indeterminate sentences have long been to be sentences for the maximum
term for which the defendant might be imprisoned. In so ruling, the
courts have pointed out that this is the construction not only placed
upon sentences where a maximum and minimum period of imprisonment
appears in the sentence, but also upon sentences where no term is
mentioned and the statute sets the maximum. The said courts have also
pointed out that such sentences afforded a basis for deportation under
section 19 of the Act of February 5, 1917 (former 8 U.S.C. 155) even
though a duly designated administrative authority might subsequently
greatly diminish, indeed almost totally abate, the period of
imprisonment. They have given as the reason for their decisions the
fact that in all such cases the defendant could be brought back and
required to serve the remainder (maximum) of his sentence.
It is also consistent with the following precedent decisions of this
Board to the effect that an indeterminate sentence is measured by the
possible maximum term of imprisonment. One of these (Matter of R , 1 I.
& N. Dec. 209) involved an alien convicted of assault with a deadly
weapon under the law of Utah; the sentence imposed was "for the
indeterminate term as prescribed by law;' the statute provided for
imprisonment not to exceed five years, or by fine not to exceed $1,000,
or by both; with no minimum apparently being set therein. Another
(Matter of R , 1 I. & N. Dec. 540) concerned an alien convicted, inter
alia, of petty larceny; he was sentenced to imprisonment in the
penitentiary of the County of New York, there to be dealt with according
to law; and the statute under which he was convicted prescribed a term
of imprisonment not to exceed three years.
It is not inconsistent with the prior precedent decision of this
Board (Matter of V , 7 I. & N. Dec. 577) relied on by the special
inquiry officer. In that case, the court, instead of imposing sentence
and suspending its execution, suspended the imposition of the sentence.
This was not the case here.
Support for our conclusion, if such is necessary, is found in the
procedural provisions of the California Penal Code pertinent to the
sentencing of this female offender, and the judicial decisions
clarifying same. Thus, section 3325 of the Penal Code imposes the duty
of fixing the terms of imprisonment for female convicts, within the
foregoing minimum and maximum limits, by the Board of Trustees of the
California Institution for Women. As is the case with the Adult
Authority, which is responsible for adult male convicts under section
3020 of the Penal Code, that board determines and redetermines, after
the expiration of six months from and after the actual commencement of
imprisonment, what length of time the convict shall be imprisoned.
However, there is no time prescribed within which the prisoner's
sentence must be fixed or even considered (In re Quinn, 25 C.2d 799, 154
P.2d 875), so that if no such action is taken the term is the maximum.
If, on the other hand, such action is taken and the term set at less
than the maximum, it is only tentative and may be changed, i.e. --
increased (In re Costello, 262 F.2d 214). In this connection, the
subsequent fixing of the actual term of imprisonment by the duly
designated administrative authority is merely a limitation of the term
and not a setting thereof (In re Daniels, 106 C.A. 43, 288 P.1109),
otherwise the statute would be unconstitutional as conferring judicial
powers on a nonjudicial body (see People v. Kostal, 159 C.A.2d 444, 323
P.2d 1020).
Finally, as pointed out by the special inquiry officer, under the
circumstances herein before outlined the respondent is not presently
eligible for any form of discretionary relief. Her deportation,
therefore, is required.
ORDER: It is ordered that the Service appeal be and the same is
hereby sustained.
It is further ordered that the respondent be deported from the United
States to Hong Kong on the charge contained in the order to show cause
as well as on the lodged charge.
Applicants who do not have, and have never established, an actual
residence in this country having been physically present in the United
States less than 2 months during a 4-year period following their
admission for permanent residence in April 1960 are ineligible for
permits to reenter the United States under section 223, Immigration and
Nationality Act, since their proposed departure is not temporary within
the meaning of the statute.
The District Director, Miami, Florida, has denied these applications
on the basis that further residence abroad could not be considered
temporary. Appeal has been taken to the Regional Commissioner.
The applicants are a 40-year-old married alien and her 14-year-old
son. Both entered the United States at Miami, Florida, on April 3,
1960, with immigrant visas issued at Caracas, Venezuela, charging them
against the Czechoslovakian quota. Both were of Israeli nationality.
On April 22, 1960, within three weeks of their admission, both filed
Applications for Permits to Reenter the United States, showing departure
date of April 26, 1960, the reason being for the mother to liquidate a
business. Permits were granted to May 4, 1961. On April 5, 1961, both
applied for extensions which were granted to May 4, 1962. On April 14,
1962, both returned to the United States at the port of New Orleans,
Louisiana. On April 17, 1962, three days after their return, both again
filed Applications for Permits to Reenter the United States, showing
proposed departure date as April 21, 1962, which were granted to April
17, 1963. On March 11, 1963, extensions were applied for and granted to
April 19, 1964. Both returned to the United States and were admitted at
Miami, Florida, on March 21, 1964. On March 23, 1964, two days after
this last return, they again filed Applications for Permits to Reenter
the United States, showing their proposed departure as March 29, 1964.
The District Director at Miami, Florida, denied the applications on
April 2, 1964, and the appeals were filed with a letter from the
applicants stating that because of the political situation the husband's
and father's printing business would require them to lose 60 per cent of
their savings if the business were liquidated now and stating that they
had to wait for a better time to liquidate their business.
Section 223 of the Immigration and Nationality Act provides for the
issuance of a reentry permit to a lawfully admitted alien who intends to
depart temporarily from the United States. In these cases, the
applicants do not have and never have established an actual residence in
the United States. Their return to the United States on March 21, 1964,
was apparently made merely to gain entry within the validity period of
the reentry permit for the second time since their arrival in the United
States as quota immigrants. Since they are, in fact, residents of
Venezuela, having been physically present in the United States less than
two months during a four-year period, their proposed departure is not
temporary within the meaning of the statute.
ORDER: The decision of the District Director of Miami, Florida, is
affirmed, and the appeals of the appellants are hereby dismissed.
A nonimmigrant student is ineligible for a change of nonimmigrant
status under section 248, Immigration and Nationality Act, to that of an
industrial trainee in the absence of an approved petition according her
status as an industrial trainee.
This matter is before the Regional Commissioner on appeal from the
decision of the District Director at New York, New York, who has denied
this application for change of status on the ground that the visa
petition in which the applicant was named as the beneficiary has not
been approved and that the status for which she is applying is not
available to her in the absence of the approval of such a petition.
The applicant is a 25-year-old single female citizen of the
Philippines, who was born on December 20, 1938, at Manila. She was
admitted to the United States at Hawaii on April 14, 1960, as a student
and has been in the United States since that date as a student at the
Philadelphia College of Pharmacy and Science and the Sloan-Kettering
Institute for Cancer Research for periods of employment for practical
training. On April 6, 1964, the Sloan-Kettering Institute for Cancer
Research submitted a petition in which it requested that the status of
an industrial trainee be approved for the applicant. A careful
examination of the petition and the supporting information accompanying
the petition revealed the training program would be employment in the
continuing research activities of the petitioning concern and that for
this reason this petition cannot be approved. In the absence of an
approved petition which would accord the applicant the status of an
industrial trainee a change in the applicant's status to that which has
been requested cannot be granted.
ORDER: It is ordered that this appeal be and the same is hereby
dismissed.
Because of his past convictions and deportations for illegal entry
upon a false claim of U.S. citizenship, applicant is denied permission
to reapply for admission, pursuant to section 212(a)(17), Immigration
and Nationality Act, in the exercise of discretion since his temporary
admission under the provisions of section 212(d)(3) of the Act may be
considered in connection with an application to a United States consul
for a nonimmigrant visa should a pressing need for medical treatment for
himself or some other member of his family require him to come to the
United States at some future time.
The case is on appeal from the denial of the application by the
District Director at Chicago. The District Director denied the
application on the ground that the applicant's past immigration record
does not warrant favorable exercise of the discretion to grant the
application.
The applicant, 37 years old, married, a native and citizen of British
Honduras, who was deported from the United States on October 1, 1957,
desires to reenter the United States as a visitor. On appeal, he states
that he would like to know that if sickness should occur in his family
or among his wife and children, he would be in a position to bring them
to the United States for any sort of medical treatment not available in
his country.
The applicant first entered the United States on July 31, 1944 as an
agricultural worker. He was reported on October 15, 1946 to be absent
without leave from the Department of Agriculture Holding Center. He was
apprehended on the same day and he departed voluntarily to British
Honduras under safeguards on November 1, 1946.
On October 14, 1956 the applicant entered the United States at San
Ysidro, California without inspection by claiming to be a United States
citizen. He was apprehended on September 4, 1957. He was convicted in
the United States District Court, San Diego, California on September 23,
1957 for entering the United States in that unlawful manner. He was
sentenced to imprisonment for four months but execution of the sentence
was suspended and he was placed on probation for five years on condition
that he remain outside the United States. He was deported from the
United States on October 1, 1957. The record shows that he entered the
United States on October 14, 1956 to seek employment and to reside.
On July 4, 1960 he arrived at the port of San Ysidro, California and
attempted to enter the United States again by claiming to be a United
States citizen. He was paroled into the United States for prosecution.
He was convicted in the United States District Court, San Diego,
California on July 18, 1960 of illegally attempting to enter the United
States after deportation. He was sentenced to imprisonment for two
months for that offense. He was committed at the same time for an
additional four months for the crime of which he had been convicted on
September 23, 1957, and for which he had been placed on probation. He
was given a hearing in exclusion proceedings on November 16, 1960 and
was ordered excluded and deported as an immigrant without a visa. The
record shows that he attempted to enter the United States on July 4,
1960 for the purpose of working in this country in order to support his
wife and children who were residing in British Honduras, and he was
deported on December 17, 1960 pursuant to the exclusion order.
On July 27, 1962 he arrived at the port of New Orleans with a
visitor's visa and was paroled into the United States for a hearing
before a special inquiry officer. He was instructed to report to the
New Orleans office on July 30, 1962 and then to the Chicago office on or
before August 6, 1962. After a sworn statement was taken from him in
Chicago on August 6, 1962, he was released pending further notice to
appear for a hearing. The notice sent to him on August 21, 1962 to
appear for a hearing on August 28, 1962 was returned undelivered since
he was not known at the address he gave. After an extensive
investigation to locate him, his departure to British Honduras on
December 18, 1963 was verified.
We agree with the District Director's decision to deny the
application. Should a pressing need for medical treatment for himself
or some other member of his family require him to come to the United
States temporarily at some future time, the matter of authorizing his
temporary admission under the provisions of section 212(d)(3) of the
Immigration and Nationality Act may be considered in connection with his
application to a United States consul for a nonimmigrant visa.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Beneficiary, who is employed on a cattle ranch engaged in raising
purebred herefords for sale and show purporse, and who is responsible
for the feeding of young calves up to the age of about 15 months and of
the bulls kept on range for breeding purposes, who assists in the
vaccination and immunization of the stock, treats minor ailments,
measures and mixes the feed grains according to prepared formulas,
grooms and cares for animals being prepared for exhibition purposes,
assists with haying and in the irrigation and cultivation of the farm
land is ineligible for first preference classification under section
203(a)(1), Immigration and Nationality Act, as amended, since the duties
performed are duties ordinarily performed by a good ranch hand or
herdsman and do not require the high education, technical training,
specialized experience or exceptional ability contemplated by the
statute.
This case comes before the Regional Commissioner on appeal from the
decision of the District Director, San Francisco, who denied the
petition on the grounds that the duties of the position for which
petitioned do not require the high education, technical training,
specialized experience or exceptional ability to the degree contemplated
by the statute for first preference classification.
Petitioner is owner and manager of the cattle ranch "Ruby Mountain
Herefords' near Elko, Nevada. This ranching business was established in
1930. Petitioner has approximately 2,000 head of cattle ranging on
15,000 acres of fee-simple land and employs from eight to seventeen
persons. The ranch is valued at about $100,000 with an annual income of
$75,000 to $90,000. Purebred herefords are raised for sale and show
purposes.
Beneficiary is a 56-year-old married male, a native and citizen of
Spain who was admitted into the United States as a crewman at
Philadelphia, Pennsylvania, on May 15, 1953, for a period not to exceed
29 days. He deserted his ship, went west and has been employed by the
petitioner in Nevada since June of 1953. Following his apprehension, he
was served with an order to show cause and at a hearing accorded by a
Special Inquiry Officer on March 26, 1956, was found to be deportable
and granted voluntary departure with an alternate order of deportation.
Various private bills introduced periodically in his behalf since 1953
have failed of passage. On April 10, 1963, the visa petition for first
preference classification was filed in his behalf.
The peititioner states that beneficiary is responsible for the
feeding of the young calves up to the age of about fifteen months, that
beneficiary assists in the vaccination and immunization of the stock and
treats minor ailment. He measures and mixes the feed grains according
to prepared formulas and grooms and cares for the animals that are being
prepared for exhibition purposes. He is also responsible for the
feeding of bulls that are kept on the range for breeding purposes.
During the Spring and Summer months, he assists in the irrigation and
cultivation of the farm land and assists with the haying.
The clearance order issued by the Bureau of Employment Security
titles the position to be filled as "cattle breeder' and describes the
duties as "Takes care of the health, welfare, feeding, halter breaking
and exhibition of from 40 to 50 head of registered hereford cattle both
while at the home ranch and while on the road exhibiting. Compounds
feed formulas as directed. Observes daily health of stock by frequent
inspection. Tests cattle and inoculates or treats with salves when
necessary.' The clearance order further shows that a minimum of five
years' experience in the care and exhibition of purebred beef cattle is
required and that the position requires a man who is gentle and tolerant
with stock.
The Dictionary of Occupational Titles, Volume I, defines a "cattle
breeder' as one who "Breeds and raises purebred beef or dairy cattle for
sale to Dairymen II, Cattle Ranchers; and other growers. Keeps
pedigree records. Grooms cattle and exhibits them at fairs,
conventions, and other gatherings.'
Petitioner is in reality the "cattle breeder.' While it is true the
beneficiary grooms the cattle, he is not the exhibitor. The petitioner,
Ruby Mountain Herefords, is the exhibitor. The petitioner breeds and
raises the purebred stock and keeps the pedigree records. The
petitioner, himself, and others who have presented letters attesting to
the beneficiary's ability to perform the tasks of the position refer to
the beneficiary as "herdsman' which is a more descriptive title of his
duties.
We agree with counsel that beneficiary is qualified to perform the
duties as set forth by the petitioner and that petitioner needs the
services of an employee to perform these duties. However, we must agree
with the District Director that the tasks performed do not require the
high education, technical training, specialized experience or special
ability as contemplated by the statute for first preference
classification.
Counsel has argued that if the "requirements are met in any degree,
the petition should be granted.' We do not agree. The tasks to be
performed must be of a degree of complexity or difficulty that only a
person with a high education, technical training, exceptional ability or
specialized experience could, because of these qualifications,
proficiently perform the duties. The duties performed by the
beneficiary are duties ordinarily performed by good ranch hands or
herdsmen and do not meet first preference standards. The appeal must be
dismissed and the decision of the District Director to deny the
application be affirmed.
ORDER: It is ordered that the appeal be dismissed and the decision
of the District Director to deny the application be affirmed.
An alien who unlawfully entered this country and remained here in an
illegal status is ineligible for a permit to reenter the United States
under section 223, Immigration and Nationality Act, since he has not
been lawfully admitted to the United States for permanent residence.
This case is here for consideration of the appeal from the denial of
the application for a permit to reenter the United States as provided in
section 223 of the Immigration and Nationality Act. The District
Director, Cleveland, Ohio, denied the application on March 13, 1964, for
the reason that the applicant is ineligible for the issuance of a permit
to reenter the United States because he has not been lawfully admitted
to the United States for permanent residence.
Applicant is a 66-year-old married native and citizen of Italy. This
application was filed on September 27, 1963, with the District Director,
Cleveland, Ohio, and he subsequently departed from the United States to
Italy on October 26, 1963, to join his wife there. He has presented in
support of his application a notarized statement in which he admits that
he entered the United States unlawfully as a crewman in August, 1962.
In that statement he specified that his entry occurred at Niagara Falls,
New York, but in a subsequent letter to the District Director he advised
that his entry actually occurred at Norfolk, Virginia, where he deserted
his vessel on August 31, 1926. In support of his statements concerning
his entry into this country, applicant has also submitted an official
document from the Captain of the Port, Port of Catania, Italy, which
corroborates the applicant's statements concerning his unlawful entry
into the United States as a deserting crewman. Applicant has stated
further that when he registered under the Alien Registration Act of 1940
and when he applied for a certificate of identification as an enemy
alien in 1942, he assumed the identity of a person named Francesco
Borsa, since he was afraid to reveal his true identity.
It is clear on the record that the applicant unlawfully entered the
United States and remained here for many years in an illegal status.
Having not been lawfully admitted to the United States for permanent
residence, he is not eligible for a permit to reenter this country as a
returning resident and the application was properly denied. The
decision of the District Director will, therefore, be affirmed and the
appeal will be dismissed.
ORDER: The decision of the District Director, Cleveland, Ohio, is
affirmed and the appeal of the appellant is dismissed.
(1) Approval of an established institution of learning for attendance by nonimmigrant students under section 101(a)(15)(F), Immigration and Nationality Act, requires, among other things, a finding that the school is a bona fide institution of learning, possesses the necessary facilities and is otherwise qualified for the instruction of students in recognized courses, and confers upon its graduates a recognized degree or its credits are recognized by, and transferable to, an institution which does confer such a degree.
(2) Petitioning liberal arts college is denied approval for
attendance by nonimmigrant students because library and recreational
facilities are inadequate; no evidence has been submitted that the
credits earned by the students at the institution would be recognized
by, or transferable to, other schools; no evidence has been submitted
of reputation of the college as an educational institution in the
community; no evidence has been submitted of assured sources of funds
or of financial stability of institution, and the U.S. Office of
Education, after consultation, recommended denial of the petition.
This is an appeal from the decision of the District Director who
denied the petition to approve Franklin Pierce College at Rindge, New
Hampshire, for the attendance of nonimmigrant alien students.
The petition and supporting documents indicate that the institution
is a nonprofit organization chartered in November 1962 by the State of
New Hampshire and operated by a board of trustees. The physical plant
comprises six buildings with dormitory, classrooms and other facilities.
The college has no library and uses the facilities of the Ingalls
Memorial Library at Rindge. The institution has been planned to operate
as a co-educational liberal arts college which will confer upon its
graduates the degree of bachelor of arts. It commenced operation in
September 1963, has an enrollment of about ninety students, a faculty of
eleven instructors, and presently is offering courses at the freshman
level only.
Approval of a petition of this type requires, among other things, a
finding that the school is a bona fide institution of learning,
possesses the necessary facilities and is otherwise qualified for the
instruction of students in recognized courses and confers upon its
graduates a recognized degree or its credits are recognized by and
transferable to an institution which does confer such a degree. In
reaching a decision, the Service is required by section 101(a)(15)(F) of
the Immigration and Nationality Act to consult with the Office of
Education of the United States. In this case, the Office of Education,
after reviewing the information submitted with the petition and the
information obtained through Service inquiry, has recommended that the
petition not be approved.
We have carefully examined the record in this case including the
information submitted in support of the appeal. As pointed out by the
District Director in his decision, the record contains no evidence of
the reputation of the college as an educational institution in the
community, and the library and recreational facilities do not appear to
be adequate for an institution of this type. Additionally, no evidence
has been submitted that the credits earned by students at the
institution would be recognized or transferable to other schools.
Further, the material submitted in support of the institution's
financial stability does not contain any documentary evidence of
financial stability and no evidence is given of assured sources of
funds. We find the recommendation of the Office of Education that the
petition be denied to be persuasive. In our opinion, the petitioner has
failed to satisfactorily establish that, in its present state of
development, the college can be considered as having met the
requirements of the statute. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Permanent nature of position of "governess, mother's helper'
precludes granting beneficiary nonimmigrant status as a temporary worker
under section 101(a)(15)(H)(ii), Immigration and Nationality Act, even
though intended duration of employment would be limited to 2 years.
This case is before me on appeal from the District Director's denial
of the petition for the following reasons: "In order for the
beneficiary to be classified as nonimmigrant temporary worker, the
position to be filled must be temporary. The United States Employment
clearance order describes the opening as permanent. Your desire to
employ the beneficiary for two to three years does not alter the
permanent character of the position.'
The appellant petitions for an alien to perform temporary service or
labor and to perform duties which are themselves temporary in nature.
The descriptive job title of the work to be performed if admitted was
shown in the application as Governess, Mother's Helper. A clearance
certificate from the State of California, Department of Employment
Service on Form ES-560 was submitted. The occupational title of
Governess, Mother's Helper, is shown with respective codes of G-32.98
and 2-07.03. A permanent job was indicated and the rate of pay was
$200.00 per month plus room and board. The job summary indicates that
the person to be employed was to "teach Greek language to young childern
and act as mother's helper. Three children ages 10, 8, and 2 1/2
years.' The education and experience requirements are shown as: "Prefer
with diploma from Greek high school. Must be able to read, write and
speak Greek. Pleasant personality. Be able to perform duties of
mother's helper.' It is stamped as of June 26, 1963, by the U.S.
Employment Service, Bureau of Employment Security, by Mr. Louis Levine,
Director, to show that qualified workers as described in this Form
ES-560 are not available within the United States for referral to the
employer by the Employment Service and that Employment Service policies
have been observed.
The petitioners are aliens, permanent residents of the United States.
The husband is a professor at the University of California Medical
School and the wife/petitioner has been assisting a professor of
bacteriology at Berkeley, California, and is stated by him to be a key
person in the research project in the department of bacteriology
supported by NIH grants totaling some half million dollars. It is
stated that unless Mrs. Contopoulos "gets just the sort of person she
has in mind, she will feel morally obligated to quit her job and stay
with her children'.
The petitioners have asserted that the beneficiary of this petition
will return to her native Greece, that her services would no longer be
needed after about two years after her arrival in California and that
the beneficiary herself made it clear to the petitioners that she does
not wish to leave her family and country (Greece) for a longer period of
time. (Petitioner speaks of 3 years.)
The petitioners have indicated that they would do anything necessary
to guarantee that the beneficiary would return to Greece at the
conclusion of her services and were willing to post whatever bond might
be required to insure that the beneficiary would return to her native
Greece after her stay here in the capacity sought for a period of about
two years. It was also asserted that the youngest child of the
petitioners would be attending school at the end of that period and that
the mother anticipated concluding her present employment in the
University of California by that time.
The admission of temporary workers under prior law had created many
problems. Enactment of the Immigration and Nationality Act created a
new category of nonimmigrants to provide for the temporary admission of
aliens having a fixed foreign domicile seeking to enter the United
States for the purpose of furnishing services of an exceptional nature
or to perform other services or labor if like unemployed labor could not
be found in this country. It was believed that a provision for this
category would provide adequate authority for the admission of aliens
whose temporary services in this country are needed or held otherwise
desirable in the national interest. Pages 588-590, Senate Report 1515,
81st Congress, 2d Session, Report on the Committee on the Judiciary,
pursuant to S. Res. 137.
In House Report No. 1365, 82d Congress, 2d Session, accompanying H.
R. 5678, on page 44 and 45, similar comment was made:
h. Temporary workers
This is new class of nonimmigrants and embraces "an alien
having a residence in a foreign country which he has no intention
of abandoning (i) who is of distinguished merit and ability and
who is coming temporarily to the United States to perform
temporary services of an exceptional nature requiring such merit
and ability; or (ii) who is coming temporarily to the United
States to perform other temporary services or labor, if unemployed
persons capable of performing such service or labor cannot be
found in the country; or (iii) who is coming temporarily to the
United States as an industrial trainee.'
The question of importing any alien as a nonimmigrant in this
class is to be determined by the Attorney General as prescribed in
section 214(c) which sets forth a petition procedure. These
provisions of the bill grant the Attorney General sufficient
authority to admit temporarily certain alien workers, industrial,
agricultural, or otherwise, for the purpose of alleviating labor
shortages as they exist or may develop in certain areas or certain
branches of American productive enterprises, particularly in
periods of intensified production. They also enable foreign
trainees to acquire the knowledge of American industrial,
agricultural, and business methods.
This was repeated in substance in Senate Report No. 1137, Calendar
No. 1072, 82d Congress, 2d Session accompanying S. 2550 on pages 20 and
21.
The foregoing is part of the legislative history of the provisions of
law which became effective December 24, 1952 under Public Law 414. The
pertinent provisions of law that obtain are quoted herewith:
Under section 101(a) of the Immigration and Nationality Act, as
amended:
(15) The term "immigrant' means every alien except an alien who
is within one of the following classes of nonimmigrant aliens --
* * * * * * *
(H) An alien having a residence in a foreign country which he
has no intention of abandoning (i) who is of distinguished merit
and ability and who is coming temporarily to the United States to
perform temporary services of an exceptional nature requiring such
merit and ability; or (ii) who is coming temporarily to the
United States to perform other temporary services or labor, if
unemployed persons capable of performing such service or labor
cannot be found in this country, or (iii) who is coming
temporarily to the United States as an industrial trainee.
Section 214 of the Immigration and Nationality Act, in its pertinent
portions, reads as follows:
Sec. 214. (a) The admission to the United States of any alien
as a nonimmigrant shall be for such time and under such conditions
as the Attorney General may by regulations prescribe, including
when he deems necessary the giving of a bond with sufficient
surety in such sum and containing such conditions as the Attorney
General shall prescribe, to insure that at the expiration of such
time or upon failure to maintain the status under which he was
admitted, or to maintain any status subsequently acquired under
section 248, such alien will depart from the United States.
(b) Every alien shall be presumed to be an immigrant until he
establishes to the satisfaction of the consular officer, at the
time of application for a visa, and the immigration officers, at
the time of application for admission, that he is entitled to a
nonimmigrant status under section 101(a)(15). An alien who is an
officer or employee of any foreign government or of any
international organization entitled to enjoy privileges,
exemptions, and immunities under the International Organizations
Immunities Act, or an alien who is the attendant, servant,
employee, or member of the immediate family of any such alien
shall not be entitled to apply for or receive an immigrant visa,
or to enter the United States as an immigrant unless he executes a
written waiver in the same form and substance as is prescribed by
section 247(b).
(c) The question of importing any alien as a nonimmigrant under
section 101(a)(15)(H) in any specific case or specific cases shall
be determined by the Attorney General, after consultation with
appropriate agencies of the Government, upon petition of the
importing employer. Such petition shall be made and approved
before the visa is granted. The petition shall be in such form
and contain such information as the Attorney General shall
prescribe. The approval of such a petition shall not, of itself,
be construed as establishing that the alien is a nonimmigrant.
It is to be noted that under section 101(a)(15)(H)(ii) above, as well
as under (i) above, both the coming to the United States and the
performance of service or labor must be temporary, the term "temporary'
being used twice. It must be further noted that section 214(c) states
that the approval of such a petition is not of itself to be construed as
establishing that the alien is a nonimmigrant.
In determining whether the position of an intern at a hospital was a
temporary position under (i), note was taken that although the intern
would be in the position of intern no longer than a year, that the
position of intern was of a continuing nature at the hospital and that
such intern would be coming to a permanent position regardless of the
actual period of the expected employment of the specific alien (Matter
of M S H , 8 I. & N. Dec. 460).
In this case, it is urged that the duration of the employment is set
by the expressed needs of the petitioners for a period of about two
years, by the clear intention of the prospective a employee to return to
her native country abroad at the end of the contemplated employment
here, and because the female petitioner intends to remain at home after
this two-year period in order to take care of her own children herself.
Because of these particular circumstances, it is contended the job
involved must be deemed temporary inasmuch as it is thereby limited in
duration.
This merely takes into consideration the limitations set by the
parties for the duration of the period of the beneficiary's employment.
It does not consider the nature of the duties involved in this function.
The test that must still be met is whether this function is of a
temporary nature or whether it is of such a continuing nature that it
cannot be considered temporary. If the petitioners fall short of
establishing that the nature of the employment itself is temporary, then
this petition must be denied.
Are the services involved of a temporary nature? The clearance order
is for one who will teach the Greek language to young children and act
as "mother's helper'. The female petitioner asserts that she will be
working in the department of bacteriology at the University of
California as a research bacteriologist. Therefore, the term "mother's
helper' would include those duties normally performed by a housewife and
mother of children. These familial duties are not temporary in nature
but persist and continue so long as a family unit exists. Since it is
the nature of the position which determines whether the job is temporary
and not the personal need in an individual case, the duties of "mother's
helper' cannot be considered temporary within the meaning of section
101(a)(15)(H)(ii) or section 214 of the Immigration and Nationality Act,
supra.
Accordingly, it is concluded that the District Director correctly
denied this petition and the appeal must be dismissed.
ORDER: It is ordered that the appeal from the denial of the petition
by the District Director be and is hereby dismissed.
An alien who entered this country as a member of the United States
Coast Guard is statutorily ineligible for adjustment of status under
section 245, Immigration and Nationality Act, as amended, because he was
not inspected, admitted, or paroled into the United States.
This case has been certified to me by the District Director at
Portland, Oregon, for review of his decision denying the application
under section 245 of the I. & N. Act, as amended.
The record relates to a 23-year-old male, native and citizen of the
Philippines. He is presently married to a United States citizen and a
petition according him nonquota status under section 101(a)(27)(A) of
the Immigration and Nationality Act was approved June 26, 1962.
He last arrived in the United States on February 18, 1959, as a
member of the United States Coast Guard on the USNS "General Barret'.
On the occasion of this arrival, he was not inspected by an Immigration
officer. The record does not disclose any prior entries where the
applicant was inspected and admitted or paroled into the United States.
On June 22, 1959, he appeared at the Service office in San Francisco,
California, and was registered and fingerprinted as an alien and was
issued Form I-94 as evidence thereof. His enlistment in the United
States Coast Guard expires on June 22, 1963.
One of the requisites for adjustment of status to that of a permanent
resident is that the applicant be inspected and admitted or paroled into
the United States. The applicant has not met this requirement.
Accordingly, the application must be denied and the decision of the
District Director is proper.
ORDER: It is ordered that the application be and the same is hereby
denied.
Adjustment of status under section 245, Immigration and Nationality
Act, as amended, is denied in the exercise of discretion to an Iranian
student whose education in this country was financed by the Iranian
government and who is committed to return to Iran and work for the
government since, in the opinion of the Department of State, such
adjustment may adversely affect the relations between the governments of
the United States and Iran in the absence of evidence that applicant has
made firm plans to return to Iran at a specific future date or has made
mutually satisfactory arrangements for repaying the Iranian government.
This case is on certification from the decision of the District
Director denying the application on the ground that adjustment of her
status to that of a permanent resident may adversely affect our
relations with Iran.
The applicant is a twenty-seven-year-old female, native and citizen
of Iran, who was last admitted to the United States at New York, New
York on September 2, 1961, as a student pursuant to section 101(a)(15)(
F) of the Immigration and Nationality Act. She first entered the United
States on June 20, 1958, as a student and remained until June 1960. She
was again admitted to the United States as a student on September 10,
1960, and remained until June 1961. The applicant's education was
financed by the Iranian Government and she received $160 monthly from
the Iranian Ministry of Education between September 1958 and June 1962.
She signed a commitment to return and work for the government for the
same period of time that she had spent in the United States. In the
brief submitted by the applicant's United States citizen husband, he
stated that they had received a statement from the Iranian Government
informing the applicant that she owed them $10,380. The Secretary of
State, through his designated representative, has made the following
statement: "Mrs. Wolfe's case appears to be one in which the adjustment
of status to permanent resident would cause the Iranian Government to
feel that its interests had not been taken into account. Therefore, the
Department suggests that before Mrs. Wolfe's status is changed, the
Service require that she show evidence that she has made firm plans to
return to Iran at a specific future date or that she has reached a
mutually satisfactory arrangement with the Iranian authorities for
repaying the Iranian Government at least some of the money it has
invested in her education'.
While the applicant's husband stated his willingness to repay the
money, he has not presented any evidence of satisfactory arrangements
with the Iranian Government.
The present facts in this case do not warrant favorable exercise of
the Attorney General's discretion. When and if the applicant makes
satisfactory arrangements with the Iranian authorities to repay the
money and obtains a release from her commitment, favorable action could
be considered.
ORDER: It is ordered that the order entered by the District Director
on May 25, 1964, be affirmed.
An application for a permit to reenter the United States under
section 223, Immigration and Nationality Act, must be submitted prior to
the applicant's departure from this country.
The application was denied by the District Director, Miami, Florida
on March 26, 1964. It is now considered on appeal.
In denying the application, the District Director gave the following
reasons:
You are statutorily ineligible to apply for a reentry permit in
that section 223 provides that an applicant for a Permit to
Reenter the United States must execute and submit his application
for such permit prior to his proposed departure from the United
States.
The applicant is a 54-year-old male, a native and citizen of Italy.
He was lawfully admitted to the United States for permanent residence at
New York City on April 3, 1963. Subsequent to his admission, he
returned to Italy and on February 28, 1964, the subject application was
received by the District Director, Miami, Florida.
Section 223 of the Act provides that any alien lawfully admitted for
permanent residence "who intends' to depart temporarily may make
application for a permit to reenter the United States. The instructions
which are contained on Form I-131, Application for Permit to Reenter the
United States, state in part, under item 3, that "The application must
be submitted while you are in the United States . . .' Section 103.2,
Title 8, Code of Federal Regulations provides that the instructions
contained on an application are "incorporated into the particular
section of the regulation requiring its submission', while section 223.1
of those regulations requires an application for a reentry permit to be
submitted on Form I-131. It is clear from the language of the statute
and the relating regulations that an application filed after the
applicant has departed from the United States has not been properly
submitted. In the instant case the application was submitted after the
alien had departed since it was subscribed and sworn to on February 20,
1964 in Naples, Italy.
Under the circumstances, the District Director had no alternative but
to deny the application as the applicant is by statute and regulation
ineligible to receive a reentry permit. Accordingly, the decision of
the District Director will be affirmed, and the appeal dismissed.
ORDER: The decision of the District Director, Miami, Florida is
affirmed, and the appeal of the appellant is dismissed.
Petitioner's program to train industrial trainees in agriculture --
principally in orcharding -- is within the meaning of section 101(a)(
15)(H)(iii), Immigration and Nationality Act, since he will provide an
organized program of training in all phases of orchard work, such as
grafting, pruning, fertilizing, planting, cultivating, thinning,
harvesting, proper preparation and care of trees, operation and use of a
limited variety of mechanical equipment, such as trucks, fruit grader,
nut tree shaker, and small tractors, to be accomplished through daily
sessions of oral instruction with explanation and demonstration; they
will be under constant observation of trainee performance with
corrective instruction, if needed; they will partake of serveral
sessions yearly on the farm during which University of California
sponsored county farm advisors will lecture and demonstrate new methods,
fertilizers, insecticides, and of at least 3 full-day sessions yearly
with instructors of the University of California on subjects and
machinery pertinent to the training, and a training record will be
maintained for each trainee.
This case is before the Regional Commissioner pursuant to the
District Director's certification of his order of September 3, 1963
denying the petition on the grounds that the training program offered by
the petitioner does not provide instructions to the degree contemplated
by the statute. This conclusion is based on the District Director's
finding that the training offered is essentially on-the-job training
without organized instruction and the major share of the training is not
adaptable to conditions or available equipment in the beneficiaries'
homeland.
Petitioner is the owner and operator of extensive property in
California. He is engaged on a large scale in both farming and
orcharding and employs a regular work force of some 50-60 domestic
workers with a peak domestic force of 1000 during certain seasonal
operations of his business. The petitioner has trained foreign
agricultural workers in the past, is presently training such workers and
seeks to import the instant beneficiaries for training in agriculture,
principally in orcharding. He states that the training received on his
property by other trainees has benefited them and their homeland.
The petitioner offers to train the beneficiaries in all phases of
orchard work such as: grafting, pruning, fertilizing, planting,
cultivating, thinning, harvesting, proper preparation and care of trees,
and the operation and use of a limited variety of mechanical equipment
such as trucks, fruit grader, nut tree shaker, and small tractors.
Petitioner's method of training consists of: daily sessions of oral
instructions with explanation and demonstration to each trainee either
by the petitioner or one of his fully experienced supervisors; constant
observation of the trainee in his performance of the assigned training
work with corrective instructions when needed; several sessions each
year on the farm during which University of California sponsored county
farm advisors lecture and demonstrate to the trainees new methods,
fertilizers, insecticides, etc.; at least three trips a year to the
University of California, Davis, California for full day sessions with
instructors on subjects and machinery pertinent to their training; and
a trip to a cannery where the latest after harvest handling, processing
and canning of fruits and nuts is observed in actual operation and on
films. A record is maintained on the training given to each trainee.
In addition to the agricultural training provided by the petitioner he
arranges for the enrollment, transportation and attendance of the
trainees in an adult evening class in English at the local junior
college.
The petitioner states that his training program runs in yearly cycles
beginning with the trainees' arrival on his farm and depending on the
individual, the training should be for three years to afford maximum
benefit to the trainee. He proposes to evaluate each trainee at the end
of the first and second years and to continue the training only when it
is indicated that the individual requires it. Petitioner states that
although the training is repetitious since the same operations are
taught and demonstrated from one year to the next, it is his opinion
that such repetition results in a better trained man.
The beneficiaries are all natives and citizens of Japan and according
to the petitioner have an agricultural background and/or some
agricultural school training. Petitioner states that although some of
the trainees' knowledge of English may be limited upon their arrival it
presents no problem since he has competent interpreters among his
regular employees.
After careful consideration, it is concluded that the petitioner will
provide training within the meaning of section 101(a)(15)(H)(iii) of the
Immigration and Nationality Act and that the other requirements of that
section have been met. Accordingly, the petition may be approved.
However, in accordance with Service policy, the beneficiaries' training
will be limited to an initial period of twelve months. The question as
to whether or not an additional period of training is warranted will be
decided in the light of the circumstances existing at the time of
receipt of any application to extend the period of the beneficiaries'
temporary admission.
ORDER: It is ordered that the petition be and the same is hereby
approved.
Since a nonimmigrant visitor for pleasure who accepted employment has
failed to maintain the status under which admitted to the United States,
he is ineligible for a change of nonimmigrant status to that of student
under section 248, Immigration and Nationality Act, as amended.
This case is before me on appeal. The District Director denied the
application on the grounds that the applicant had violated the terms of
his admission as a visitor for pleasure by accepting employment.
The applicant is a 27-year-old married male, a native and citizen of
Greece. He was admitted into the United States as a visitor for
pleasure on March 24, 1962. He has been granted extensions of temporary
stay to June 28, 1963. On June 24, 1963 he applied for change of
nonimmigrant status to that of a student. On August 2, 1963 he was
found working as a busboy in a restaurant. In a statement under oath to
a Service officer he stated he had been employed since June 13, 1963.
He has been working eight hours a day for five or six days a week. By
accepting employment, he violated the terms of his admission as a
visitor for pleasure.
With certain exceptions not relevant in this case section 248 of the
Immigration and Nationality Act provides that the classification of a
nonimmigrant may be changed to another nonimmigrant classification if
the alien has continued to maintain the status under which he was
admitted to the United States. As the applicant has failed to maintain
his nonimmigrant status, he is ineligible under the statute and his
appeal must be dismissed.
ORDER: It is ordered that the appeal in this matter be and the same
is hereby dismissed.
Since the beneficiary has been employed for the preceding 3 or 4
years as a travel agent, he is ineligible for nonimmigrant
classification under section 101(a)(15)(H)(iii), Immigration and
Nationality Act, as an industrial trainee in that field of business
activity.
This matter is before the Regional Commissioner on appeal from the
decision of the District Director at New York, New York who has denied
this petition on the grounds that the beneficiary is to be employed in
the regular operation of the petitioner's business; that the need for
his services is continuing in nature; that the petitioner has no formal
training program and that since the beneficiary has been employed abroad
during the past three or four years as a travel agent, he cannot be
considered an industrial trainee in this field within the meaning of
section 101(a)(15)(H) of the Immigration and Nationality Act.
The petitioner is a travel agency with offices in the Prince George
Hotel in New York, New York. It has indicated in the documents
supporting this petition that it has annual gross sales of more than
$800,000 and that it desires to give training as a travel agent to the
beneficiary so as to make him ready for the 1964 World's Fair in New
York as a travel consultant to thousands of prospective visitors to New
York from Japan. The supporting documents indicate that following the
period of training the beneficiary will be assigned to the petitioner's
Tokyo branch office where he will be handling Japanese traffic, both
individuals and groups, destined to the United States and particularly
to New York City. The petitioner has also submitted a copy of a
proposed schedule of training dated October 28, 1963 for a period of
fifty weeks which is broken up into five periods of ten weeks each.
Mr. Toshi Miyazaki, president of the Miyazaki Travel Agency, Inc.,
was interviewed by a Service representative in connection with his
petition and disclosed that the beneficiary has been employed by the
Mitsui Airline Travel Service in Japan "for the past three or four years
as a travel agent'; "that the Mitsui Company was a very large
organization with offices in Tokyo, New York and in various other places
in the world'; "that during the three or four years of employment with
this company that the beneficiary did gain considerable valuable
experience as a travel agent'; "that the beneficiary would be employed
full-time in the agency in the functions of issuing travel tickets,
planning various flight routes, train routes or ship routes'.
The petitioner's appeal indicates that there is a continuing need for
trained personnel in the travel service; that there is a need for it to
expand its staff; that it is having difficulty in procuring
satisfactory help in spite of its efforts to engage Japanese-speaking
help through newspaper advertising in New York, Chicago, Salt Lake City,
Denver, and other cities in California; and that he has in the past
brought temporary help to the United States from Japan.
In establishing eligibility to be issued a visa as an industrial
trainee, it must be shown that the beneficiary desires admission to the
United States as a result of an invitation for the purpose of receiving
instruction or training. An industrial trainee shall not be permitted
to engage in productive employment if such employment will displace a
United States resident. It is contemplated that an industrial trainee
will not be employed in a position or work which is in the normal
operation of a business and for which citizens and resident aliens are
regularly employed.
From a review of the evidence available, it is concluded that the
beneficiary has been employed as a travel agent for the past three or
four years and cannot be found to now be a trainee in this field of
business activity. The training program accompanying this petition is
dated October 28, 1963 and provides for fifty weeks of training in a
stated list of scheduled subjects. Had the beneficiary been in the
United States on that date and had he immediately started the training
program at that time, it would have taken the entire duration of the
1964 World's Fair to have completed the scheduled training program. For
this reason, it is evident that the training program prepared by the
petitioner was unrealistic and could have had no reasonable relation to
a desire on the part of the petitioner to train this beneficiary so that
he would be "ready for the 1964 World's Fair or work as travel
consultant to thousands of prospective visitors to New York from Japan'.
In view of the above, this petition must be denied and this appeal
dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
An alien of distinguished merit and ability coming to a university as
a research associate to prepare and establish course material for a new
program leading to the B.A. degree in Chinese language and literature is
eligible for nonimmigrant status under section 101(a)( 15)(H)(i),
Immigration and Nationality Act, since the position is temporary in
nature and will be abolished after organization of the new program which
will become a permanent part of the university curriculum.
This case is before me on appeal. The District Director denied the
petition to classify the beneficiary as a nonimmigrant under section
101(a)(15)(H)(i) of the Immigration and Nationality Act on the ground
that the position to be filled by the beneficiary is permanent in
nature.
The requirement for the classification sought is that the beneficiary
be an alien of distinguished merit and ability who is coming for a
temporary period as a nonimmigrant to perform duties which are
themselves temporary in nature. It is conceded that the qualifications
of the beneficiary meet the high requirements of the Act. The question
to be resolved is whether the duties to be performed are themselves
temporary in nature. /1/
The petitioner is initiating a program leading to a B.A. degree in
Chinese language and literature in the Department of Foreign Languages.
The services of the beneficiary are sought for a temporary period to
prepare course outlines, bibliographies, and teaching materials for the
new program. The position will be that of a Research Associate, which
position will be abolished after the new program is organized. The
Chairman of the Department of Foreign Languages states that this will be
within a year or so. The new program in Chinese language and literature
will become a permanent part of the curricula of the petitioning
institution. However, the position to be filled by the beneficiary is
temporary in nature. After the program is established, her services
will be required no longer. The beneficiary, according to the
petitioner, is eminently qualified to create the course material for the
program. It is concluded that the position to be filled by the
beneficiary is temporary in nature. Accordingly, the appeal will be
sustained.
ORDER: It is ordered that the appeal in the above cited case be and
the same is hereby sustained.
(1) Matter of M S H, 8 I. & N. Dec. 460.
A distinguished scholar coming to a university to teach (70% of time)
and do research in mathematics for an academic year is eligible for
nonimmigrant status under section 101(a)(15)(H)(i), Immigration and
Nationality Act, since the position is not permanent in nature; the
courses to be taught, although listed in the university catalogue under
an open number for credit purposes, are special seminars which are
taught only by distinguished visiting professors or other qualified
personnel and are not a permanent part of the curriculum.
This is a petition to import for a temporary period under section
101(a)(15)(H)(i) of the Immigration and Nationality Act, a distinguished
scholar to teach and do research in mathematics for the 1963-1964 school
year. The petition was denied by the District Director on the grounds
that the beneficiary will be teaching a full load of courses that are
listed in the University Catalogue, and the position is therefore
permanent in nature. /1/ The petition is before this office on appeal
from that decision.
The beneficiary, according to the petition, is to teach and do
research in mathematics for the 1963-1964 school term. The courses to
be taught by the beneficiary are listed in the catalogue of the
institution under an open number, for credit purposes, and are given
when there is a demand or when a visiting professor is available. The
beneficiary will teach for about seventy per cent of his time, the
remainder will be on research.
The petitioner stated in his brief on appeal that the beneficiary
would teach courses which are special and temporary in nature, which
could legitimately be called Special Seminars; that the courses are
listed under open number in the catalogue in order that the student may
benefit creditwise. Only distinguished visiting professors or staff
members with special ability give courses under this number.
It is concluded that the petitioner seeks the services of the
beneficiary to do research and to teach a special seminar in
mathematics. This is a course that is not a permanent part of the
curricula. It is given occasionally by visiting professors or other
qualified personnel to advanced students in mathematics. The appeal
will be sustained.
ORDER: It is ordered that the appeal in the above cited case be and
the same is hereby sustained.
(1) Matter of M S H , 8 I. & N. Dec. 460.
A dual national of the United States and Mexico at birth who in 1948 purchased a house in Mexico in an area in which only Mexican citizens could own property did not thereby voluntarily seek or claim Mexican nationality in the absence of a showing he represented himself to be a Mexican or knew that ownership must be based upon his being a Mexican citizen. (Cf. Matter of V , 7 I. & N. Dec. 218.)
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(
20) -- Immigrant without visa.
The special inquiry officer has certified this case in which he has
ordered the applicant excluded on the ground stated above. The
applicant's admission will be ordered.
The applicant is a 49-year-old married male who has lived in the
United States since February 20, 1961 when he entered as a United States
citizen. On October 22, 1962 he attempted to return to the United
States as a United States citizen after a short visit to Mexico; he was
excluded on the ground that he had lost United States citizenship in
1955 and therefore needed a visa entitling him to enter as an alien
immigrant. He was paroled into the United States pending final
adjudication of his case.
The issue is whether the applicant's purchase of a home in Mexico in
1948 resulted in the loss of United States citizenship under section 350
of the Immigration and Nationality Act (8 U.S.C. 1482) which provides:
A person who acquired at birth the nationality of the United
States and of a foreign state and who has voluntarily sought or
claimed benefits of the nationality of any foreign state shall
lose his United States nationality by hereafter having a
continuous residence for three years in the foreign state of which
he is a national by birth at any time after attaining the age of
twenty-two years unless he shall --
(1) prior to the expiration of such three-year period, take an
oath of allegiance to the United States before a United States
displomatic or consular officer in a manner prescribed by the
Secretary of State; and
(2) have his residence outside of the United States solely for
one of the reasons set forth in paragraph (1), (2), (4), (5), (6),
(7), or (8) of section 353, or paragraph (1) or (2) of section 354
of this title: Provided, however, That nothing contained in this
section shall deprive any person of his United States nationality
if his foreign residence shall begin after he shall have attained
the age of sixty years and shall have had his residence in the
United States for twenty-five years after having attained the age
of eighteen years.
Applicant was born in Texas in 1914 of parents who were Mexican
nationals at all times. The applicant is married to a Mexican citizen
and has seven children; his family resides in Mexico; he began to
reside in the United States in 1961, and prior to this had commuted to
the United States daily for 26 years to work as a tailor.
For two years starting in 1946 applicant made payments toward the
purchase of a house in Mexico in an area in which only Mexican citizens
could own land. On May 5, 1948, a contract for the sale of the property
was executed and about two months later was recorded (Ex. 4). Title was
taken in the name of both the applicant and his wife. In 1955,
applicant heard that his ownership of the property in Mexico could
affect his United States citizenship. He inquired of the American
Consul in Mexico and was apparently told he would lose United States
citizenship unless he sold the property or made his home in the United
States. Applicant did not then come to the United States for residence;
he could not meet the cost of supporting his family in the United
States, nor could he afford to maintain a residence both in the United
States and in Mexico. He did try to dispose of the property but could
not find a buyer at a reasonable price and his wife would not let him
dispose of it at a loss. On July 11, 1961, in the belief that the sale
of the property would safeguard his United States citizenship, applicant
entered into a contract for a sale of his house for 2000 pesos although
he had paid over 9000 for it (Ex. 5).
The special inquiry officer finding that the applicant had been a
national both of the United States and Mexico at birth, that he had
purchased a home in an area where ownership of land was restricted to
Mexican nationals, that this purchase constituted a voluntary seeking or
claim of the benefits of the Mexican nationality, that applicant had
resided in Mexico for the necessary period after claim of the benefit,
concluded that applicant had lost United States citizenship under
section 350 of the Act.
Counsel contends that applicant was not a dual national after 1939.
He contends that applicant had lost Mexican nationality in 1939 by
applying for a United States citizen's identification card. Moreover,
counsel contends applicant had never voluntarily sought or claimed a
benefit of Mexican nationality.
We find that the applicant has failed to establish that he lost
Mexican nationality in 1939, or thereafter by applying for United States
identification. The applicant became a citizen of the United States at
birth under the Fourteenth Amendment of the Constitution of the United
States and section 1992 of the Act of April 9, 1866. He became a
Mexican national at birth under Article 30 of the Mexican Constitution
which provides as follows:
Mexican nationality is acquired by birth or by naturalization.
A. Mexicans by birth are:
I. Those who are born in territory of the Republic, regardless
of the of the nationality of their parents;
II. Those who are born in foreign countries of Mexican parents;
of a Mexican father and an alien mother; or of a Mexican mother
and a father of unknown nationality; and
III. Those who are born on board of Mexican vessels or
airships, whether warships or merchant ships.
B. Mexicans by naturalization are:
I. Aliens who obtain a letter of naturalization from the
Department of Foreign Relations, and
II. Any alien woman who marries a Mexican and has or
establishes residence within the national territory.
Loss of Mexican nationality is governed by Article 37, Political
Constitution of the United Mexican States as amended, and Article 3 of
the Law of Nationality and Naturalization which provide as follows:
A. Mexican nationality is lost:
I. By voluntary acquisition of a foreign nationality;
II. By accepting or using titles of nobility that imply
submission to a foreign state;
III. By residing, being Mexican by naturalization, for five
years continuously in the country of origin; and
IV. By passing in any public instrument, being Mexican by
naturalization, as a foreigner, or by obtaining and using a
foreign passport. (Article 37)
Mexican nationality is lost:
I. By voluntarily acquiring a foreign nationality, it being
understood that it is not a voluntary acquisition when it may have
occurred by operation of law, by simple residence, or by being an
indispensable condition for obtaining work or for retaining work
already acquired, in the judgment of the Secretary of Foreign
Relations;
II. By accepting or using titles of nobility that imply
submission to a foreign state;
III. By residing, being a mexican by naturalization, for five
continuous years in the country of origin;
IV. By representing himself in any public instrument, being a
Mexican by naturalization, as a foreigner, or by obtaining and
using a foreign passport.
The loss of Mexican nationality only affects the person who has lost
it. (Article 3, Law of Nationality and Naturalization)
Applicant maintains that he lost Mexican nationality in 1939 under
paragraph IV of the above articles. The Service contends that all of
paragraph IV relates to a Mexican by naturalization only and therefore
does not relate to the applicant whose Mexican nationality arose other
than by naturalization. The Service contention is based on the belief
that only a naturalized Mexican is mentioned in the article. The
applicant, however, maintains that while the first part of the article,
that is, the portion concerning the passing as a foreigner in a public
instrument, relates to a naturalized Mexican only, the remainder of the
section relates to either a Mexican by naturalization or one by birth.
In support of his argument, the applicant presented an attorney
admitted to practice in Mexico who had no experience with Mexican
nationality law but who testified that such experience was not necessary
to interpret the nationality law. The attorney testified that the
portion of paragraph IV preceding the last comma, related to a Mexican
by naturalization, and the portion following the same comma related to a
Mexican by birth. The basis for the latter part of his conclusion was
twofold: (1) he is of the belief that a Mexican by birth was alone
capable of using a foreign passport within Mexico -- the Mexican by
naturalization being able to use only a Mexican passport (p. 58), and
(2) he is of the belief that the punctuation of Article 37(A)(IV) makes
the first part refer to Mexicans by naturalization and the second part
to Mexicans by birth (p. 57).
The witness' attention was called to the fact that paragraph IV of
Article 37 as translated in the United Nation's Legislative Series calls
for the loss of Mexican nationality by a person who --
Being a Mexican national by naturalization, represents himself
as an alien in any public instrument, or obtains and uses a
foreign passport.
The witness commented that the translation had changed the word order
of the Spanish (p. 60). /1/
The Service conducted an investigation to determine the meaning of
this section. On May 2, 1963, the District Director, El Paso, Texas,
sent a letter to the District Director in Mexico asking that an opinion
be obtained from the Office of the Attorney General of Mexico (Ex. 11,
p. 1). (We take administrative notice that the District Director at
Mexico City is the administrative official who supervises the activities
of subordinates in charge of offices certain cities in Mexico and that
Donald G. Brown is the subordinate in charge of the office in Mexico
City.) On May 9, 1963, Donald G. Brown sent a letter to Fernando Roman
Lugo, Attorney General of Justice of the District and Federal
Territories, Attorney General's Office of the Republic of Mexico, D.F.,
stating that the applicant had been born in Texas of Mexican parents and
that he had in 1939 applied for and obtained a card of identification as
a citizen and claimed that this act brought about the loss of his
Mexican nationality under Article 37, paragraph IV. The letter asked for
the opinion of the Attorney General as to whether loss of Mexican
nationality occurred (Ex. 11, pp. 3-5). On a sheet of paper without
letterhead, signature, or date, but to which is stapled the card of Lic.
Oscar Trevino-Rios, the Sub Procurador General de la Republica, is an
opinion stating that paragraph IV of Article 37 brings about the loss of
Mexican nationality only where it is acquired by naturalization and that
this fact is so clear as to require no detailed comment (Ex. 11, pp.
6-7). On May 27, 1963, the Acting District Director at Mexico City
forwarded to the District Director, El Paso, Texas, "the opinion of Lic.
Oscar Trevino-Rios, Sub Procurador General de la Republica regarding the
citizenship of the subject.' (Ex. 11, p. 6)
Over counsel's objection that a proper foundation had not been laid,
the special inquiry officer permitted the opinion from the Mexican
official to be placed into evidence, and considered it as expert
testimony on the issue. Finding the two experts in disagreement, the
special inquiry officer made his own findings in the matter ruling (1)
that paragraph IV applied only to Mexicans by naturalization and (2)
that identification cards obtained by applicant in 1939 and 1948 were
not passports (pp. 6-7, special inquiry officer opinion).
We believe counsel's objection to the introduction of the opinion
from the Mexican official was well taken and will give the opinion no
weight. Nevertheless, we reach the same conclusion as did the special
inquiry officer concerning the interpretation to be given to the
section. The weight to be given the opinion evidence produced on
applicant's behalf must stand upon the witness' expertise (the witness
does not specialize in Mexican nationality laws), the authorities
advanced by him (his interpretation is not based upon judicial
authorities or otherwise supported), and the process of his reasoning (a
grammatical construction and a belief for which no support is given that
only a Mexican national by birth can obtain and use a foreign passport).
In examining the witness' reasoning we may consult the foreign statutes
which are part of the record and the law derived from the statutes "in
spite of the fact that the uncontradicted testimony of the experts
places a contrary interpretation thereon' (20 Am. Jur., Evidence,
Section 1210, pages 1061-2; see Application of Chase National Bank, 191
F.Supp. 206, S.D.N.Y. (1961) affirmed 297 F.2d 611, 2d Cir. (1962)).
Examination of Article 37 reveals that the first paragraph relating
to loss by acquisition of foreign nationality and the second paragraph
relating to loss by use of foreign titles of nobility, apply to a person
of Mexican nationality generally; that the third paragraph mentions
only the Mexican by naturalization found in the condition of having
renewed his residence in the country of his origin; and that the fourth
paragraph mentioning only the Mexican by naturalization sets forth two
additional conditions for loss of citizenship both arising out of the
use of non-Mexican public instruments or passports. The witness'
construction of paragraph IV is that the first condition --
representation of oneself as a foreigner in a Mexican public document --
refers to the expressed subject of the paragraph: the naturalized
Mexican, and that the second condition -- use of a non-Mexican passport
-- refers to an implied subject: the native-born Mexican. We must
reject this construction. Grammatically, there is no reason to change
the expressed subject of the paragraph (Mexican by naturalization) and
substitute therefor a subject (Mexican by birth) to whom part of the
paragraph would apply to the exclusion of the expressed subject.
Moreover, it is difficult to believe that in a matter as important as
citizenship loss should result by implication. We find equally
unconvincing the pragmatic approach of the witness -- the contention
that paragraph IV cannot be read sensibly unless the portion concerning
loss by use of a foreign passport is held to refer to the Mexican by
birth only because he alone by virtue of his dual nationality is in a
position to obtain a foreign passport. The witness has failed to show
why a naturalized Mexican could not obtain a passport from a foreign
nation. It appears to us that just as the naturalized Mexican may claim
in a Mexican public document that he is a foreign national and thus
bring himself within the first part of paragraph IV, so may he claim in
an application for a foreign passport that he is still a foreign
national. Neither grammar nor logic requires acceptance of the reading
given by applicant's expert.
We may also point out that counsel takes issue with the opinion of
his own witness for counsel believes that the last part of paragraph IV
applies to both Mexican nationals by birth and naturalization whereas
the expert is of the belief that it applies only to Mexicans by birth.
We note also that the United Nations translation of paragraph IV makes
it apply only to a Mexican national by naturalization (Ex. 10). For the
reasons stated, we conclude that the applicant did not lose Mexican
nationality under paragraph IV of Article 37. (The special inquiry
officer has also pointed out that the United States citizen's
identification card which counsel considers a passport states that "it
is not a passport' (Ex. 3); the special inquiry officer has concluded
that reason alone would prevent the application of paragraph IV.
Counsel contends that Mexico regards such a document as a passport. We
do not find the record adequate on this issue and make no ruling on the
issue.)
The applicant's expert testified that the applicant also lost Mexican
nationality under Article 37(A), paragraph I by having voluntarily
obtained a United States citizen's identification card in 1939 -- such
action amounted either to the voluntary acquisition of foreign (United
States) nationality or an election of United States nationality and
implied renunciation of Mexican nationality (pp. 38-42, pp. 65-69). The
Service supplied no expert testimony on this issue. The special inquiry
officer found that no naturalization had occurred: obtaining the card
was not an act of naturalization but a sign that applicant was already a
United States citizen. Counsel contends that it is error to reject the
uncontradicted opinion of the expert in the matter. The remarks we made
previously concerning the weight and sufficiency of the opinion evidence
apply here too. We must therefore examine the record and the statute to
determine if the expert's uncontradicted opinion is acceptable. The
expert has failed to set forth laws and precedents which establish that
a dual national's exercise of rights of the nationality other than
Mexican constitutes a naturalization under Mexican law. We do not
believe that the applicant's use of a right of his United States
nationality constitutes such a naturalization or election because Mexico
recognizes that a Mexican national may validly possess the rights of
dual nationality (p. 38). The International Treaty upon which the
expert bases his conclusion that applicant made an election of United
States nationality and renunciation of Mexican is not set forth for our
examination.
Having determined that the applicant had not lost dual nationality
prior to the effective date of section 350 of the Act (December 24,
1952), we may proceed to the issue as to whether he lost United States
nationality by taking title to land in Juarez, Mexico on May 5, 1948 and
holding title until July 11, 1961 -- the land being located in an area
in Mexico within 100 kilometers of that country's border.
The law restricting title to certain lands in Mexico only to Mexican
nationals is found in Article 27, paragraph I of the Political
Constitution of the United Mexican States which provides as follows:
Only Mexicans by birth or by naturalization, and Mexican
societies have the right to acquire control over land, water and
its accessions or to obtain concessions for the exploitation of
mines, waters or combustible minerals in the Mexican Republic.
The state may concede the same right to aliens provided they agree
before the Department of Relations to consider themselves as
nationals with respect to said possessions and not invoke therefor
the protection of their governments with reference to them under
the penalty in the case of default in the agreement, to lose in
benefit of the Nation, the possessions acquired by virtue of the
same. In a zone one hundred kilometers along the border and fifty
from the seacoast aliens may not under any circumstances acquire
direct control over land and water.
The registration of applicant's title follows in pertinent part:
In the City of Juarez, Chihuahua, at twelve-thirty on the
fourteenth day of August Nineteen Hundred Forty-eight, before the
Registrar that is authorized by Attorney Miguel Collado, there was
presented for registration in this Section, an instrument of
Bargain and Sale not officially recorded, executed in this City
the fifth day of May of the current year by which the owner
Natividad Trevizo Corral, single, sells to Mr. Ismael Sanchez
Monreal, married and to his wife Mrs. Guadalupe Sanchez de Sanchez
for the sum of $500.00 Five Hundred pesos, an urban property * * *
(description follows) * * *. Thus the present which is returned
with the respective note remains recorded. I certify. Miguel
Collado. (Ex. 4)
The special inquiry officer held that applicant's taking of title to
property which could be held only by a Mexican national constituted the
voluntary claiming of the benefits of foreign nationality and resulted
in applicant's loss of United States citizenship. Counsel contends that
the taking of title did not result in loss of United States citizenship
under section 350 of the Act because the record does not establish that
applicant actually claimed the benefits of his Mexican nationality in
making the purchase. In support of his contention counsel points out
that the record of transfer reveals neither that inquiry was made as to
applicant's nationality nor that applicant held himself out to be a
Mexican national. Counsel further states that an American citizen who
does not have Mexican nationality can acquire an interest in real estate
within the forbidden zone in error and that title taken in error cannot
be divested until the American citizen has been granted a period of one
year within which to sell the property. Having thus established that
one other than a Mexican national can hold property and that applicant
had not claimed Mexican nationality in purchasing the property, counsel
concludes that no positive act of claiming or seeking benefits has been
established, and section 350 does not therefore apply.
Applicant's expert witness testified that at the time of executing a
contract for sale of real estate, it is the obligation of a notary to
establish the citizenship of the buyer (p. 27), that this is so whether
or not the property is within the 100 kilometer zone (p. 32), and that
the notary cannot permit the consummation of the transaction in the
forbidden zone under penalty of law if he determines that the buyer is
not a Mexican citizen (pp. 32-33). The witness stated that the title to
property would not necessarily show whether or not the official had
questioned the parties concerning the nationality of the buyer (p. 35).
The witness' testimony is inconsistent as to whether there is a
requirement in the law that the instrument record the buyer's
nationality. At one point he testified that there was no such
requirement (p. 35); elsewhere he testified that the law did require
that nationality be set forth in all contracts (p. 36). The witness
examined the title in the instant case and stated it was not made out
before a natary or judge although the law provided for the drawing up of
such an agreement between the parties where the value of the property is
less than 1000 pesos (pp. 35-36).
The applicant testified that not until 1955 did he know that
ownership of land in the area where he had purchased was denied to
United States citizens. In 1955 he went to the American Consulate in
Juarez and obtained the information as to the bar to land ownership.
The record reveals that on December 13, 1955, applicant appeared at the
consulate where he was advised that he would become expatriated on
December 24, 1955, under section 350 of the Act if he continued to
reside in Mexico (Ex. 3).
We do not believe that applicant comes within section 350 of the Act.
Under the circumstances of this case, the execution of the contract of
slae between private parties without appearance before a Mexican
official, the applicant's lack of knowledge concerning the inability of
a non-Mexican national to own land in the area, the applicant's
testimony that the issue of nationality did not arise during the
transaction, and the testimony that a non-Mexican national who purchased
land in error could hold it until the government proceeded against him
legally, we find that the Service has failed to establish that applicant
voluntarily sought or claimed the benefits of his Mexican nationality
when he purchased the property. While there is a presumption that an
individual knows the laws of his country, the existence of the
presumption does not establish under circumstances such as we have set
forth that there was a voluntary seeking of the benefits of foreign
nationality. Decisions of the Board on this issue in other cases were
made in the belief that land in the proscribed area could not have been
acquired without claiming of Mexican nationality; this record
establishes the contrary.
What is the effect of the fact that on December 13, 1955, applicant
was advised by the State Department that he would become expatriated on
December 24, 1955, if he continued to reside in Mexico (Ex. 3)? Was his
continued enjoyment of his property after that date a voluntary claim of
the benefits of Mexican nationality? We do not believe so. In the
absence of evidence that the Mexican authorities sought to divest him of
his title and that such divesture was defeated by applicant's claim to
Mexican nationality we do not believe it may be said that his continued
enjoyment of the property after the conversation with the consul was a
voluntary claiming of the benefits of Mexican nationality.
It is to be noted that the purchase of the property occurred on May
5, 1948, some years before December 24, 1952, the effective date of
section 350 of the Act. Where the record establishes that the enjoyment
of a benefit of foreign nationality on or after December 24, 1952, was
the result of a voluntary seeking or claiming prior to that time, then
the continued enjoyment of the benefit brings the individual within
section 350 of the Act and loss of United States citizenship results if
the enjoyment of the benefit continues for three years after December
24, 1952. The fact that Congress designed the section to divest dual
nationals of their United States nationality and not protect it, and the
fact that Congress afforded the individual a period of three years after
the law became effective to preserve his nationality is the basis for
our conclusion (Matter of V , 7 I. & N. Dec. 218; see Matter of G Q ,
7 I. & N. Dec. 195). However, applicant's enjoyment of his property was
not based on a claim to Mexican nationality; he has not lost United
States citizenship under section 350 of the Act.
ORDER: It is ordered that the order of the special inquiry officer
be and the same is hereby withdrawn.
It is further ordered that the applicant's admission as a United
States citizen be authorized.
(1) The Spanish reads as follows: Por harcerse pasar en qualquier
instrumento publico, siendo mexicano por naturalization, como
extranjero, o por obtener y usar un pasaporte extranjero. (Ex. 10)
Application for adjustment of status under section 245, Immigration
and Nationality Act, as amended, will be denied in the exercise of
discretion to a 31-year-old widow, a native and citizen of Honduras, who
has 5 minor children residing in Honduras.
The application was denied by the District Director, New Orleans,
Louisiana, on June 27, 1963, and the case is now before this office on
certification for consideration of the decision in accordance with Part
103.4, Title 8, Code of Federal Regulations.
Applicant is a 31-year-old widowed female native and citizen of
Honduras. She last entered the United States at New Orleans on August
22, 1962, and was admitted as a temporary visitor for pleasure for three
months. This application, which was filed within two months after her
admission, has been denied in the exercise of discretion for the reason
that she has five minor children whom she left behind in Honduras and
who need her care and protection. The District Director concludes that
her plans to bring the children to the United States as permanent
residents, coupled with the lack of her suitable employment and the
total insufficiency of her sponsor's affidavit of support, offer her no
satisfactory financial security in this country. As a further
unfavorable factor, the applicant, since her entry into this country,
has been arrested by the New Orleans police.
The record reflects that the applicant has five children ranging in
ages from 8 to 15 years who are residing with their paternal
grandparents in Honduras. At the time she entered the United States it
was her intention to seek permanent residence in this country if she
liked it here, after which she planned to bring them to the United
States, provided she was financially able to do so. Since being in the
United States she has not contributed to the support of her children and
has herself been supported in the main by funds received from her
sisters in Honduras. Since the denial of the application she has become
employed as a domestic servant.
Applicant was arrested by the New Orleans Police Department together
with another female three days after she entered the United States and
charged with theft of currency. The charge was dismissed and the alien
was released.
While the factor relating to the applicant's arrest is not pertinent
to the application, favorable exercise of the Attorney General's
discretion is not warranted in this case as the approval of the
application would be to sanction the applicant's abandonment of her
children. Accordingly, the District Director's decision will be
approved and the application will be denied.
ORDER: The decision of the District Director, New Orleans,
Louisiana, is approved and the application is denied.
Urgent need of beneficiary's services as a beauty operator is not
established within the contemplation of section 203(a)(1), Immigration
and Nationality Act, since the petitioning shop which has an average of
6 customers a day presently employs one full-time beauty operator, both
petitioner and his wife are licensed operators and are available to work
as the occasion demands, and the patron potential of the petitioning
shop is limited in a town of 2,000 population which has 5 beauty salons.
This case is before the Regional Commissioner on appeal from decision
of the District Director who denied the petition on the grounds that
beneficiary's services were not urgently needed and did not meet first
preference standards.
Petitioner is the owner and operator of a beauty shop in business
since September 1962 in Archer, Texas, a town of about 2,000 population
and having five beauty shops. Both the petitioner and his wife are
licensed operators. One other operator who works on a commission basis
is employed in the shop. The shop has an average of six patrons a day.
Beneficiary is a 40-year-old married female, a native and citizen of
Taiwan, Republic of China. She presently resides with her husband and
six children in Taipei, Taiwan.
Beneficiary will perform the regular duties of a beauty operator:
shampoo, cut, set and style hair. Also color, tint, bleach and treat
hair and do hand manicures and give scalp and facial treatments.
The "Worker Trait Requirements Handbook' published by the Bureau of
Employment Security shows that it takes from one to two years of
technical training to become proficient in the skills of a beauty
operator. Assuming, but not conceding, that the duties to be performed
meet first preference standards, an urgency for the services must still
be established. The record shows that one full-time beauty operator is
presently employed by the petitioner. This operator works on a
commission basis and averages $75 a week. The petitioner and his wife
are both licensed operators but work only as the occasion demands. The
petitioner has stated that both he and his wife are available when the
need arises. The patron potential is limited in a town of 2,000
population which has five beauty salons as is indicated by the
petitioner's statement that his shop has an average of six customers a
day. The foregoing fails to indicate an urgent need of the
beneficiary's services.
Section 203(a)(1) of the Immigration and Nationality Act provides
that first preference classification may be granted to quota immigrants
whose services are urgently needed in the United States because of high
education, technical training, specialized experience or exceptional
ability. Urgency of the services of the position not having been
established, we must find that the denial of the petition by the
District Director was proper. We will dismiss the appeal.
ORDER: It is ordered that the appeal be dismissed.
The petitioner and spouse have not established that they will
properly care for the beneficiary-child, as defined in section 101(b)(
1)(F), pursuant to section 205(b), Immigration and Nationality Act, as
amended, since they have 2 minor daughters of their own, the petitioner
has no steady employment, his wife is employed as night superintendent
at a hospital working from 11:00 PM to 7:00 AM, and petitioner, who was
discharged from the United States Army in 1944 under other than
honorable conditions, has a long record of arrests and convictions, the
last of which was in 1961.
This case is on certification from the District Director, Seattle,
Washington, who denied the petition on the ground that it has not been
established that the petitioner and spouse are able to care for the
child properly if the child is admitted to the United States. /1/
The petitioner works as a handyman and house painter, but he has no
steady employment. He earned approximately $850.00 during the first
eight months of 1962. His spouse is night superintendent of nurses at
Northgate General Hospital, Seattle, and earns $440 a month. Her hours
of employment are from 11:00 PM to 7:00 AM. They have two daughters of
their own, who are 10 and 15 years of age. It is stated that one of the
parents is always at home to care for the children.
The petitioner was discharged from the United States Army on May 5,
1944, under conditions other than honorable, because of chronic
alcoholism. While in the army he was convicted four times by
courtsmartial for such things as being drunk in quarters and for being
AWOL. He has a long arrest record. He was arrested and convicted of
larceny in Seattle twice in 1958 and once in 1959, and was sentenced to
serve 60 days in jail the first time and 90 days in jail the second and
third times. He was arrested and fined or sentenced to jail numerous
times in Washington, Oregon, and California for being drunk. The last
time was on May 17, 1961.
On the basis of the record in this case it must be concluded that the
petitioner and his spouse have failed to establish that the orphan will
be cared for properly if admitted to the United States. Accordingly the
denial of the petition was proper and the appeal will be dismissed.
ORDER: It is ordered that the decision of the District Director be
affirmed.
(1) Section 205(b), Immigration and Nationality Act, as amended.
Permission to reapply for admission, pursuant to section 212(a)(17)
of the Immigration and Nationality Act as a crewman following
deportation in 1963 is granted a bona fide alien crewman who has been
sailing to and from the United States constantly since 1961 and who
during that time never abandoned his calling as a crewman or worked
ashore while in the United States.
The application was denied by the District Director, Miami, Florida,
on April 29, 1964. It is now considered on appeal.
The applicant is a 24-year-old native of Haiti. He was deported from
the United States on September 19, 1963. He had arrived in the United
States as a crewman on a vessel and had been given conditional
permission to land. The vessel was going into dry dock and the
steamship company operating the vessel sought to return 16 Haitian
crewmen to Haiti. There were 13 of the Haitians including the
applicant, who objected to being returned to Haiti because of political
and economic conditions there. An Immigration Officer, upon being
advised by the applicant that he would not voluntarily return to Haiti,
revoked his conditional permit to land as a crewman and ordered the
master of the vessel to deport him from the United States pursuant to
section 252(b) of the Immigration and Nationality Act. Deportation
followed.
The District Director has denied the application for the following
reasons:
You are not a bona fide non-immigrant in that at the time of
the revocation of your conditional landing permit you told an
Officer of this Service that you would not return to Haiti, your
native country, and you have not established that you have an
unrelinquished, legal domicile in any other country.
Section 101(a)(15)(D) of the Immigration and Nationality Act defines
a nonimmigrant crewman as follows:
* * * an alien crewman serving in good faith as such in any
capacity required for normal operation and service on board a
vessel (other than a fishing vessel having its home port or an
operating base in the United States) or aircraft, who intends to
land temporarily and solely in pursuit of his calling as a crewman
and to depart from the United States with the vessel or aircraft
on which he arrived or some other vessel or aircraft;
Notice is taken of the fact that crewmen on vessels engage in a life
at sea, living aboard the vessels and that a residence or domicile may
be lacking while they are engaged in that occupation. The applicant has
been sailing to and from the United States constantly since 1961. There
is no evidence of record that he ever abandoned his calling as a crewman
or worked ashore while in the United States. He now seeks permission to
reapply for temporary entry as a crewman when his ship is in the ports
of the United States. It is found that the applicant is a bona fide
crewman and that permission should be granted to him to reapply for
admission. The appeal will therefore be sustained.
ORDER: The decision of the District Director of Miami, Florida, is
reversed and the application is granted.
Application for change of nonimmigrant status pursuant to section
248, Immigration and Nationality Act, as amended, from that of a
temporary visitor to that of a student to pursue a nurse's course in
anesthetics is denied since the applicant as a former exchange visitor
had received the maximum period of training specified for nurses, has
not yet fulfilled the foreign residence requirement of section 212(e) of
the Act, and the grant of her application under the circumstances would
defeat the intent and purpose of the Mutual Educational and Cultural
Exchange Act of 1961.
This application is before the Regional Commissioner by appeal from
denial of the application by the District Director of Philadelphia,
Pennsylvania on April 8, 1963 for the following reasons:
The activities scheduled by you consist primarily of employment
for room and board, and your educational program fails to meet the
requirements of student status under the Immigration and
Nationality Act. You are, therefore, ineligible for the change of
status requested.
Although the applicant takes issue with the reasons for denial, it is
unnecessary to debate the matter since the application will be denied
for the reasons discussed below.
The applicant, a native and national of The Philippines, was admitted
to the United States in March 1960 as an Exchange Visitor as presently
defined in section 101(a)(15)(J) of the Immigration and Nationality Act.
She remained until completion of her program in nursing and departed
for Canada in July 1962. She was thereafter admitted for six weeks as a
section 101(a)(15)(B) nonimmigrant visitor at Buffalo, N.Y. on December
23, 1962 and now applies for a change of status to that of a section
101(a)(15)(F) nonimmigrant student to pursue a nurse anesthetist course.
Section 109 of the Mutual Educational and Cultural Exchange Act of
1961 made several amendments to the Immigration and Nationality Act.
Among these was the creation and incorporation into the Immigration and
Nationality Act of a special new nonimmigrant visa designed to serve
solely the purposes of the Mutual Educational and Cultural Exchange Act
of 1961. The House Foreign Affairs Committee in Report No. 1094 (page
16) explained that the main purpose of this amendment is to reserve the
"F' visa for students other than exchange students and make the new "J'
visa available solely to nonimmigrants selected under the Exchange
Program. Section 109 also emphasizes and places restrictions on the
provisions of the law relating to the two-year-foreign-residence
requirement applicable to exchange aliens and prohibits change in the
classification of an exchange visitor under section 248 of the
Immigration and Nationality Act to any other nonimmigrant classification
except one relating to diplomatic or international organizational
status.
To insure that exchange visitors remain in the United States only so
long as is necessary to satisfy their objectives and the intent of the
Act, the Secretary of State has issued regulations to establish general
limits on their stay (22 CFR 63.5(b)). A two-year limit was specified
for graduate nurses, the program area in which applicant participated
for such a length of time.
It was recognized that former exchange visitors might have a bona
fide reason to temporarily return to the United States before fulfilling
their foreign residence requirements, so the Immigration and Nationality
Act amendments by Public Law 87-256 left undisturbed their eligibility
for issuance of visas in all nonimmigrant classifications except the one
relating to employment and training as defined in section 101(a)(15)(H)
of such Act. However, it was not intended that this eligibility would
be used as a means to overcome or circumvent the intent of The Mutual
Educational and Cultural Exchange Act of 1961 or be in conflict with its
objectives.
The applicant, as a former exchange visitor, is still subject to the
two-year foreign residence requirement of section 212(e) of the
Immigration and Nationality Act. Except for the fact she departed from
the United States for a temporary period, she would be statutorily
ineligible for the change of nonimmigrant status being sought.
Likewise, she had already received the maximum period of training
specified for nurses in 22 CFR 63.5(b). The grant of her application
under these circumstances, even though it were conceded her proposed
program qualifies for nonimmigrant status, would defeat the intent and
purpose of The Mutual Educational and Cultural Exchange Act of 1961.
ORDER: The application is denied for the reasons outlined in the
above discussion, and the appeal is dismissed.
An alien convicted in 1958 of violation of section 855 of Title 35, Purdon's Pennsylvania Statutes, Annotated, for unlawful use of a drug as defined in section 851 thereof is deportable under section 241(a)( 11), Immigration and Nationality Act, as amended, since every drug enumerated in section 851 is a narcotic drug or marijuana within the scope of section 241(a)(11) of the Act and a conviction for unlawful use is equivalent to a conviction relating to illicit possession of a narcotic drug or marijuana.
CHARGE:
Order: Act of 1952 -- Section 241(a)(11) 8 U.S.C. 1251(a)(11) --
Convicted of possession of narcotic drugs or marijuana.
The case comes forward on appeal from the order of the special
inquiry officer dated April 30, 1964, ordering the respondent deported
to the Republic of China on Formosa on the charge contained in the order
to show cause.
The record relates to a native and citizen of China, 52 years old,
male, single, who entered the United States at Seattle, Washington, on
or about September 20, 1932. He was convicted on October 24, 1958, in
the Court of Quarter Sessions of the Peace of the County of
Philadelphia, Pennsylvania, in violation of section 855 of Title 35,
Purdon's Pennsylvania Statutes, Annotated, to wit: use of drugs as
defined by sections 851 and 852 of Title 35, Purdon's Pennsylvania
Statutes, Annotated. The respondent is charged with deportability under
the second part of section 241(a)(11) of the Immigration and Nationality
Act because of conviction of a violation of any law or regulation
relating to the illicit possession of narcotic drugs or marijuana, as
defined by sections 851 and 852 of Title 35, Purdon's Pennsylvania
Statutes, Annotated, in violation of section 855 of Title 35, P.S.A.
Counsel for the respondent in his brief urges that inasmuch as the
respondent was convicted of use of a certain drug in violation of the
aforementioned Pennsylvania Statutes, he could not be convicted of
illicit possession of a narcotic drug or marijuana nor can he be charged
with being deportable because of illicit possession of a narcotic drug
or marijuana. It is believed that this contention of counsel has been
disposed of in Matter of H U , 7 I. & N. Dec. 533. That case involved a
conviction for violation of section 11721 of the Health and Safety Code
of California which provided that no person shall unlawfully use
narcotics. The Board held that a statute which punishes the unlawful
use of narcotics is included within the scope of section 241(a)(11) of
the Immigration and Nationality Act as a law "relating to' the illicit
possession of narcotic drugs and that the quoted phraseology is broad
enough to embrace illicit possession as an incident to a conviction for
unlawful use. This construction was upheld in the unreported case of
Bukaroff v. Rosenberg, No. 212-61-TC (S.D.Cal., C.D., April 17, 1961) in
which the court held that unlawful use necessarily presupposes illicit
possession of narcotics and that the California Statute involves a law
relating to the illicit possession of narcotic drugs within the meaning
of section 241(a)(11) of the Immigration and Nationality Act (8 U.S.C.
1251 (a)(11)).
The indictment upon which respondent was convicted charged that on or
about July 9, 1958, the respondent did feloniously use, take, administer
and cause to be administered to his person a certain drug, contrary to
the form of the Act of the General Assembly in such case made and
provided. The statute, Title 35, Purdon's Pennsylvania Statutes,
Annotated, section 855, which was then in effect, reads that no person
shall use, take or administer to him person, or cause to be administered
to his person, or administer to any other person, or cause to be
administered to any other person any of the aforesaid drugs except under
the advice and direction, and with the consent of a regularly practicing
and duly licensed physician or dentist. It would appear that the
Pennsylvania statute is similar to the California statute and that the
illicit use of the described drug necessarily presupposes and includes
illicit possession of proscribed drugs.
The indictment upon which the respondent was convicted states that
the word "drug' in each and every count of this indictment is used as
defined by the Act of July 11, 1917, P.L. 758, sec. 1, as amended by the
Acts of April 20, 1921, P.L. 152, sec. 1; May 22, 1933, P.L. 905, sec.
1; April 12, 1945, P.L. 225, sec. 1; 1955, P.L. 849, sec. 1; 1956,
P.L. (1955) , No. 601, sec. 1. The definition of the word "drug'
referred to in the indictment, which was in effect when the respondent
was convicted, is found in Title 35, Purdon's Pennsylvania Statutes,
section 851, and reads as follows:
Except as limited in section two of this act, the word "drug'
as used in this act, shall be construed to include: (a) opium;
or (b) coca leaves; or (c) marijuana; (d) any compound or
derivative of opium, coca leaves or marijuana; or (e) any
substance or preparation containing opium, coca leaves, or
marijuana; or (f) any substance or preparation containing any
compounds or derivative of opium, coca leaves, or marijuana and
any substance identified chemically as
1-methyl-4-phenylpiperidine-4-carboxylic acid ethyl ester, or any
salt or derivative thereof, by whatever trade names designated, or
any preparation containing such substance or its salts or
derivatives or any substance or preparation containing any drug
found by the United States Secretary of the Treasury, after due
notice and opportunity for public hearing, to have an
addiction-forming or addiction-sustaining liability similar to
morphine or cocaine and proclaimed by the President to have been
so found by the Secretary. /1/
The indictment in this case did not name the drug used by the
respondent but recited that the indictment was for the illicit use of a
drug as defined by the law as set out in 35 P.S.A. 851, referred to
above. The record of conviction is binding and therefore each of the
drugs mentioned in the definition must be a narcotic drug or marijuana
as charged in section 241(a)(11) if the respondent is to be found
deportable.
Turing to the definition contained in 35 P.S. 351 the drugs listed in
clauses (a) to (e) which include opium, coca leaves, marijuana, any
compound or derivative thereof or any substance or preparation
containing opium, coca leaves, or marijuana are clearly narcotic drugs
as contemplated by the second part of section 241(a)(11) of the
Immigration and Nationality Act, as amended. Marijuana was inserted
into section 241(a)(11) by the Act of July 14, 1960 (74 Stat. 505) and
was specifically inserted into the law to overcome the effect of the
case of Hoy v. Mendoza-Rivera, 267 F.2d 451 (9th Cir., 1959), which held
that mere possession of marijuana was not a ground for deportation under
the second part of section 241(a)(11). Conviction of unlawful
possession of marijuana in violation of law renders an alien deportable
from the United States whether the conviction took place prior to the
enactment of the amendment. /2/ Thus, the effect of the case of Hoy v.
Mendoza-Rivera, which has been referred to by counsel in his brief, has
been overcome by this amendment.
The definition further specifies any substance identified chemically
as 1-methyl-4-phenylpiperidine-4-carboxylic acid ethyl ester or any salt
or derivative thereof, by whatever trade name designated or any
preparation containing such substance or its salts or derivatives. This
substance is otherwise known as isonipecaine and is specifically
mentioned in the enumeration of narcotic drugs in the third part of
section 241(a)(11). It is also defined by 26 U.S.C. 4731(a) and (f),
section 1(a), Narcotic Drugs Import and Export Act, as amended, and 21
U.S.C. 502(g)(20) as a narcotic drug. It must be concluded that
isonipecaine is a narcotic drug as contemplated by the second section of
section 241(a)(11) of the Immigration and Nationality Act.
The last part of 35 P.S. 851 refers to any substance or preparation
containing any drug found by the United States Secretary of the Treasury
after due notice and opportunity for public hearing, to have an
addiction-forming or an addiction-sustaining liability similar to
morphine or cocaine and proclaimed by the President to have been so
found by the Secretary. It is noted that this part of the definition is
similar to the definition of an opiate contained in 26 U.S.C.A. 4731(g)
which is listed among the definitions of narcotic drugs. The term
"opiate' is further defined in 21 CFR 305.2 in similar language. It is
concluded that the last part of 35 P.S. 851 refers to a narcotic drug.
Since the conviction of the respondent was for violation of a statute
proscribing the use of a drug which has been held to be equivalent to
"relating to' possession of a drug and since every drug enumerated in
the Pennsylvania law is found to be a narcotic drug or marijuana within
the meaning of section 240(a)(11) of the Immigration and Nationality
Act, as amended, the respondent is deportable on the charge contained in
the order to show cause. In view of the nature of the conviction which
occurred in 1958 and the ground of deportability, the respondent does
not appear to be eligible for discretionary relief. The appeal will be
dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Section 2 is contained in section 852 of Title 35 and merely
defines what is not included in the word "drug'.
(2) Matter of Gardos, Int. Dec. No. 1281 (1963), aff'd Gardos v. I.
& N.S., 324 F.2d 179 (9th Cir., 1963).
Since the waiver of permission to reapply granted respondent, a previously-deported Mexican alien, at the time of his entries as an agricultural laborer in 1958 and 1959, pursuant to the provisions of 8 CFR 214k.7, as amended Nov. 28, 1957, was limited and did not apply to future entries, particularly not one as an immigrant, he required permission to reapply and, therefore, was excludable under section 212( a)(17), Immigration and Nationality Act, at the time of his entry for permanent residence on April 29, 1961. (See Matter of Villagomez-Gasca, Int. Dec. #1276.)
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251 -- Excludable
by law existing at time of entry (sec. 212(a)(17), I. & N. Act; 8 U.S.
C. 1182) -- Arrested and deported -- No permission to reapply for
admission.
This case is before us on appeal from a special inquiry officer's
order of March 25, 1964, directing that the respondent be deported from
the United States to Mexico on the charge contained in the order to show
cause; denying his application for nunc pro tunc permission to reapply
for admission into the United States after arrest and deportation; and
finding him ineligible for voluntary departure. The appeal will be
dismissed.
The record relates to a 31-year-old married male alien who is a
native and citizen of Mexico. He originally entered the United States
in about 1953 without inspection and was deported because of that entry
on June 13, 1953. He entered the United States as an agricultural
contract laborer in 1958, worked for a period of about two months and
returned to Mexico; and again entered the United States in 1959 as an
agricultural laborer under a work contract, remained in the United
States for a period of three months, and again returned to Mexico. He
last entered the United States on April 29, 1961, when he was admitted
for permanent residence upon presentation of a nonquota immigrant visa.
The main thrust of respondent's argument on appeal is that he did not
require permission to reapply at the time of his application for an
immigrant visa in 1961. He contends that permission to reapply for
admission had been granted him, a previously deported Mexican alien, at
the time he was contracted as an agricultural laborer in 1958, or
recontracted as such in 1959. He urges that such permission was
unlimited and applied to all his future entries no matter what their
nature. He seeks support for this theory in a prior precedent decision
of this Board (Matter of V G , A-13114857, BIA, 4/5/63; Int. Dec. No.
1276), wherein we made such a ruling as to an agricultural laborer
admitted under contract in 1955.
The basis for our decision in that case was the wording of the then
controlling regulation (8 CFR 214k.7), which read as follows:
Previous removal, deportation, permission to reapply. An alien
who establishes that he is in all respects entitled to admission
as an agricultural worker under the provisions of this part,
except that he has been previously removed at Government expense
pursuant to section 242(b) of the Act or excluded or arrested and
deported solely because of illegal entry or absence of required
documents, is hereby granted permission to reapply for admission
to the United States as an agricultural worker. (17 F.R. 11562,
Dec. 19, 1952 amended, 20 F.R. 5964, Aug. 17, 1955, redesignated
20 F.R. 6380, Aug. 31, 1955.)
The reason for that decision was that the language of the foregoing
regulation granted outright permission to reapply rather than a waiver
of said ground of inadmissibility. However, we also pointed out in that
same case (pp. 5 & 6) that on November 28, 1957, the pertinent
regulation was amended to grant to an agricultural laborer only a waiver
of the ground of inadmissibility arising out of lack of permission to
reapply following deportation. The regulation then read:
Previous removal, deportation; permission to reapply.
Pursuant to the authority contained in section 212(d)(3) of the
Act, the bar to admissibility contained in paragraphs (16) or (17)
of section 212(a) of the Act is hereby waived for an alien who
establishes that he is otherwise admissible as an agricultural
worker under the provisions of this part, except for his previous
removal or deportation because of entry without inspection or lack
of required documents (22 F.R. 9518, Nov. 28, 1957, 8 CFR 214k.7).
Because of this significant change in the language, we concur in the
special inquiry officer's conclusion that the waiver of permission to
reapply for admission granted the respondent at the time of his entries
as an agricultural laborer in 1958 and 1959 was limited and did not
apply to future entries, particularly not one as an immigrant.
Therefore, we agree with said official that the respondent is deportable
on the above-stated charge, counsel's contentions to the contrary
notwithstanding.
We also agree with the special inquiry officer that a grant of
permission to reapply for admission, nunc pro tunc, would be an idle
gesture since the respondent could be charged with obtaining a visa by
fraud or misrepresentation under section 212(a)(19) of the Immigration
and Nationality Act (8 U.S.C. 1182). The reason is that he failed to
disclose in the application for the visa with which he last gained entry
into the United States in 1961 that he had been previously deported from
the United States. His testimony in this respect was: "I wanted very
much to enter the United States and I was afraid that if I told the
Consul I was previously deported that he would not let me enter.'
We further agree with the special inquiry officer that the respondent
should not be granted the relief in question because he, a man married
to a native, citizen and resident of Mexico, with five children enjoying
the same status, has admitted that he was arrested in August, 1963, when
he visited a married woman at her home. He stated that he had known her
for approximately two or three weeks and that he had previously had
sexual relations with her. He also stated that her husband, who was
present when he arrived, called the police and had him arrested (pp. 9 &
10). This activity, coupled with the visa fraud (ante), militates
against favorable exercise of discretionary relief.
Also, the respondent's admissions concerning his meretricious
relationship with a married woman, establishing adultery, preclude him
from establishing the good moral character requisite to a grant of
voluntary departure (section 101(f)(2), I. & N. Act; 8 U.S.C. 1101).
And even if such conduct did not render the respondent statutorily
ineligible for the relief of voluntary departure it would, when coupled
with his concealment of his prior deportation when applying for his visa
and the fact that he has a wife and five children in Mexico, weigh
against the grant of such relief as a matter of administrative
discretion. Accordingly, the special inquiry officer's decision is
affirmed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Since consummation by cohabitation is not required in a common-law
marriage contracted "per verba de praesenti' in the State of
Pennsylvania, the marriage contracted between petitioner, a U.S.
citizen, and beneficiary, a citizen of Greece, aboard ship at Marcus
Hook, Pa., in the presence of each other before witnesses, though not
consummated by cohabitation, is a valid marriage and serves to confer
nonquota status.
The District Director at Philadelphia has denied nonquota
classification for the petitioner's alleged alien husband on the ground
that no valid common-law marriage exists between the petitioner and the
beneficiary. The petitioner appeals from this decision.
The petitioner is a native of Puerto Rico, a citizen of the United
States. She resides in the State of Pennsylvania. She testified that
she married the beneficiary, a citizen of Greece, aboard ship at Marcus
Hook, Pennsylvania on January 16, 1964 (pp. 3-7). She described the
marriage ceremony as follows: ". . . we had some papers like a marriage
license /1/ and we stand and say the same thing that you would say in
church and we sign the papers, the Captain, the Chief Officer, my
husband, the lawyer and my aunt. And also I did too' (p. 7).
The petitioner identified the contract of marriage submitted with the
petition as the one both she and her husband signed in the presence of
each other. She testified that the marriage had not been consummated
because the Immigration Service would not grant shore leave to the
beneficiary (pp. 6 and 7). When questioned as to whether she married
the beneficiary solely for the purpose of giving him nonquota
immigration status she replied "I married him because I love him' (p.
8).
The District Director at Philadelphia is of the opinion that the
petitioner did not contract a legal marriage "within the meaning of the
immigration laws' because "The circumstances surrounding the procedure
followed are not in keeping with the accepted concept of common-law
marriage, and indicates that marriage was attempted solely to obtain
nonquota status for the beneficiary.' The Service argues that no valid
common-law marriage exists between the petitioner and the beneficiary
because it has not been consummated.
There is no separate federal law or policy governing marriages. As
between the federal and state governments the power to control and
regulate marriage is retained by the latter and is not vested in
Congress except in the District of Columbia and the territories of the
United States. O'Connor v. Johnson, 74 F.Supp. 370, 375, U.S.D.C., W.
D.N.Y., 1947. The Pennsylvania rule concerning marriage has been stated
by the Pennsylvania Supreme Court as follows: "Marriage is a civil
contract jure gentium, to the validity of which the consent of parties,
able to contract, is all that is required by natural or public law. If
the contract is made per verba de praesenti, though it is not
consummated by cohabitation, or if it be made per verba de futuro, and
be followed by consummation, it amounts to a valid marriage in the
absence of all civil regulations to the contrary . . . marriage is in
law a civil contract, not requiring any particular form of solemnization
before officials of church or state.' Richard v. Brehm, 73 Pennsylvania
140, 144 (1873).
It is settled law in the State of Pennsylvania that a common-law
marriage is valid. Marriage Act of 1953, P.L. 1344, Section 23; Ex
parte Suzana, 295 F. 713, 717 District Court, Mass., 1924. It is also
settled law in the State of Pennsylvania that cohabitation and
reputation that the parties are married, standing alone, does not
constitute a legal marriage, not even a common-law marriage.
Cohabitation and reputation are merely evidence which give rise to a
rebuttable presumption of marriage. In re Manfried's Estate, 159 A.2d
697, Supreme Court of Pennsylvania 1960; Caddy v. Johnstown, 196 A.
590, 129 Pa., Super., 493.
One of the issues before the Quarter Sessions Court of Cambria
County, Pennsylvania in the case of Commonwealth v. Amann, 58 Pa.
District and County Reports 669 (1947) was whether a valid common-law
marriage had been contracted even though it was not consummated by
subsequent cohabitation. The defendant, Amann was abroad in the
Military Service of the United States. Upon learning that a child had
been born out of wedlock to his fiancee, a resident of Pennsylvania, he
arranged a contract of marriage similar to the one executed in the case
before us. The formal contract was duly executed by both parties and
each party received a copy. Amann returned to the United States and
refused to support his wife and child. The wife brought an action
against him under Pennsylvania Public Law 872, Section 733 (18 Purdon's
Pennsylvania Statutes 4733), charging failure to support.
Amann defended on the ground that the prosecutrix was not his lawful
wife. He contended that the marriage contract did not create a valid
common-law marriage because (1) the contract was not executed in the
presence of each other; (2) that since the defendant (Amann) agreed to
the marriage in the Philippine Islands and the prosecutrix agreed some
weeks later in the State of Pennsylvania the agreement was per verba de
futuro which will not support a common-law marriage; and (3) there was
no consummation of the marriage following the execution of the marriage
agreement.
The court citing the rule established by the Pennsylvania Supreme
Court in the case of Richard v. Brehm and other cases /2/ held that a
marriage with mutual consent executed by correspondence is valid in the
State of Pennsylvania; that the contract was a continuing offer subject
to acceptance by the intended wife and therefore constituted a binding
contract of marriage in the State of Pennsylvania and that since a valid
marriage had been entered into under the law of the State of
Pennsylvania "a consummation by cohabitation is not required.' The court
said "The fact is that cohabitation is frequently used to prove
marriage, but its absence does not disprove marriage otherwise shown to
have been effected.' Commonwealth v. Amann, supra at Page 673.
The facts of the case before us establish that there was a valid
contract of marriage "per verba de praesenti' executed in the presence
of each other by the petitioner and the beneficiary. The Supreme Court
of Pennsylvania has said that consummation by cohabitation is not
required in a common-law marriage if the marriage contract is made "per
verba de praesenti.' Since the law of the State of Pennsylvania Controls
in this matter we have no alternative but to rule that the petitioner is
the lawful wife of the beneficiary. The beneficiary therefore qualifies
for nonquota status as the spouse of a United States citizen. An
appropriate order will be entered.
ORDER: It is directed that the appeal be and the same is hereby
sustained. The petition on behalf of Ioakim Megalogenis is hereby
granted.
(1) The petitioner refers to the marriage contract which is set forth
as Appendix A.
(2) Ex parte Suzana, 295 F. 713; Great Northern Railway Company v.
Johnson, 254 F. 683.
THIS AGREEMENT, made this 16th day of January A.D. 1964, in the
Borough of Marcus Hook, County of Delaware, State of Pennsylvania, by
and between IOAKIM MEGALOGENIS and OFELIA BERMUDEZ
WHEREAS, the Parties hereto are desirous of entering into a present
Agreement of Marriage, and mutually consenting each with the other to
become man and wife;
NOW THEREFORE, each does covenant and agree as follows:
1. I, IOAKIM MEGALOGENIS, do hereby solemnly agree to take OFELIA
BERMUDEZ as my lawful wedded wife, to live together with her in the holy
state of matrimony, and to love, cherish, comfort, honor and keep her,
for richer or poorer, for better or worse, in sickness and in health,
and, forsaking all others, until death parts us.
2. I, OFELIA BERMUDEZ, do hereby solemnly agree to take IOAKIM
MEGALOGENIS as my lawful wedded husband, to live together with him in
the holy state of matrimony, and to love, cherish, comfort, honor and
keep him, for richer or poorer, for better or worse, in sickness and in
health, and, forsaking all others, until death parts us.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals this 16th day of January A.D. 1964.
(SEAL)
IOAKIM MEGALOGENIS
(SEAL)
OFELIA BERMUDEZ
Witnessed:
Marie A. Gonzalez,
Chief Officer,
Captain,
Filindo B. Masino, Esq.
Liability to fine is not incurred under section 254(a)(1), Immigration and Nationality Act, for failure to detain on board until after inspection, since no landing occurred when 4 crewmen in the performance of their duty to expedite and assist passengers in landing left the vessel upon arrival and proceeded to their positions on the pier at the foot of the gangway, the immediate vicinity of which they did not leave.
BASIS FOR FINES: Act of 1952 -- Section 254(a)(1) 8 U.S.C. 1284 .
IN RE: M/S "BERLIN' which arrived at the port of New York from
foreign on March 25, 1964. Alien crewmen involved: Wilhelm Hermann,
Edo Timmer. Carl Heinz Ohland and Hans Westendorf.
The District Director at New York, in a decision dated May 1, 1964,
held that North German Lloyd, Inc., as owners, agents, charterers or
consignees of the M/S "Berlin,' had incurred liability to administrative
penalties totaling $4,000, $1,000 as to each of the alien crewmen named
above, for failure to detain them on board the vessel until they had
been completely inspected by an immigration officer, including a
physical examination by a medical examiner. However, said official
found present herein factors which, in his opinion, merited mitigation
of the fines to the minimum amount permissible under the statute, to
wit: down to $200 per crewman. Thus, the total penalty which he
permitted to stand was $800. The appeal from his decision, which brings
the case before this Board for consideration, will be sustained.
It appears from the record before us that the following material
facts exist without substantial controversy. Three of the alien crewmen
named above were employed as stewards aboard the vessel, while the other
alien crewman involved was its purser. Three of them had been so
employed by the carrier for a period of from six to ten years, while the
other was comparatively new in the carrier's service. It was their
duty, upon the vessel's arrival, to expedite and assist passengers in
landing.
During the period of their employment, cutter boardings had been used
almost exclusively, and personnel assigned to assist passengers in
landing were examined on board prior to the docking of the vessel.
Thus, the normal and instinctive actions of these crewmen upon the
docking of the ship was to immediately take up their positions on the
pier at the foot of the gangway in order to discharge their duties in
respect to the passengers landing. It was their anxiety to continue
their excellent performance of duty which caused them to forget that the
usual examination by immigration authorities had not been made in this
instance.
At no time did they leave the immediate vicinity of the gangway on
the pier in the performance of their duties. When the violation was
brought to the attention of the carrier's personnel a responsible party
was immediately posted at the gangway on board the vessel to remind all
other crew members of the necessity of examination before leaving the
ship. Also, these crewmen were all in uniform at the time for ready
identification. They were subsequently presented for inspection and all
were granted D-1 conditional landing permits.
The element essential to the establishment of a violation of this
section of the law is a "landing.' It is our opinion that the foregoing
does not establish that such an event occurred here within the purview
of the statute. Rather, it demonstrates that the crewmen involved were
at all times in close proximity to the gangway and their activities
there were within the legitimate operation of the vessel. It is our
opinion that to hold that violations had taken place under the
circumstances outlined above would be to reach an absurd result, and no
statute -- quasi penal or otherwise -- should be so interpreted.
ORDER: It is ordered that the appeal be sustained and that the fines
be not imposed.
Respondent, a native and citizen of the Dominican Republic, has not established that because he was employed for a period of 6 months in a comparatively minor capacity in the Servicio de Inteligencia Militar he would be subject to physical persecution within the meaning of section 243(h), Immigration and Nationality Act, if deported to the Dominican Republic.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant -- remained longer (both).
In a decision dated December 16, 1963, the Special Inquiry Officer
found the respondents herein deportable on the charge contained in the
order to show cause, denied their applications for temporary withholding
of deportation under section 243(h) of the Immigration and Nationality
Act, but granted them the privilege of voluntary departure from the
United States. From that decision the respondents have appealed to this
Board. Deportability has been conceded and the sole issue before this
Board is the denial of the respondents' applications for withholding of
deportation under section 243(h) of the Immigration and Nationality Act.
The appeals will be dismissed.
In considering the applications for relief the Special Inquiry
Officer noted that the female respondent's claim of physical persecution
is based entirely on the fact that she is the spouse of the male
respondent. Accordingly, the Special Inquiry Officer concluded that it
was necessary only to consider the application of the male respondent.
He disposed of the matter on that basis and in this action we concur.
The male respondent is a 29 year old married alien, native and
citizen of the Dominican Republic, who last entered the United States at
New Bedford, Massachusetts, on July 8, 1962, when he was admitted as a
nonimmigrant crewman and authorized to remain in the United States for a
period of time not to exceed 29 days. He remained beyond that time
without authority and is consequently, subject to deportation under
section 241(a)(2) of the Immigration and Nationality Act. Our
consideration of this appeal will be directed to his claim that if he
were to be deported to the Dominican Republic he would be subject to
persecution in that country. In support of this claim he has submitted
the following facts for consideration. In 1956 he obtained employment
with the Dominican Police Force as an investigator. The record
indicates that he wore the uniform of the Dominican Police Force and
that his activities as a law enforcement officer were concerned mostly
with the investigation of robberies. In 1960 his employment was
terminated for the reason that he had accumulated an excessive amount of
demerits during his period of employment with the police force.
Thereafter he worked as a seaman and continued as such until a short
time after Trujillo was assassinated in May of 1961. Upon abandoning
his calling as a seaman he continued employment with a Dominican
electrical corporation servicing boilers. It is his testimony that at
that time he also began working for the Servicio Inteligencia Militar
(SIM), having obtained such employment with the help of his uncle who
became Chief of the Central Information Agency of the SIM. His
employment with the SIM continued for approximately six months when that
organization went out of existence. The main basis for his claim of
persecution is based upon his employment with the SIM. He testified
that he worked in the Confidential Squad of the Section of Social
Politics, and it was his duty to inform his superiors concerning people
in the Dominican Republic who were displeased or dissatisfied with the
Government of that country. Upon questioning he testified that he did
not cause any one to be arrested, did not inform the SIM about any one
and his name was never published as a member of the SIM. However, he
stated that it was a well known fact that he was the nephew of Manuel
Antonio Perez and at the conclusion of his employment with the SIM he
found it necessary to go into hiding. Sometime thereafter he obtained a
job as a seaman on the vessel which brought him to the United States in
July 1962. Other testimony given by the respondent in this regard has
been fully noted in the opinion of the Special Inquiry Officer and need
not be repeated at this time.
The Special Inquiry Officer found that in view of the fact that the
respondent was a comparatively minor employee of the SIM there was
little reason to find that he would be persecuted were he to return to
his home country. He concluded that the respondent had failed to
establish that he would be subject to physical persecution in the
Dominican Republic.
Counsel for the respondent appeared at oral argument on appeal. The
substance of his argument relates to his request for clarification of
the Board's decision in two cases, Matter of Diaz, File A-12386631,
decided by the Board on March 20, 1963, and the Matter of Torres-Tejeda,
File A-12336079, decided by the Board on January 3, 1964. Counsel for
the respondent seeks to simplify the matters in question before this
Board by characterizing our decision in Diaz, as the finding that an
innocent bystander who might be persecuted by an unruly mob cannot be
found eligible for relief under section 243(h). He describes our
decision in the Torres-Tejeda case as finding that a person who was a
"hatchet man' for Trujillo was not entitled to relief under section
243(h) because here he would be punished for crimes which he admitted
committing. Such would not be persecution but rather prosecution and
accordingly, would constitute appropriate punishment for admitted
crimes. With the analysis of these two cases counsel declares he has no
difficulty. He seeks in the instant case to place the male respondent
in a position between what he implies are the extremes of circumstances
relating to Dominicans who seek relief under section 243(h). In other
words, he proposes the following question: "If the Board can find that
an innocent bystander such as Diaz is not eligible for 243(h) relief and
can also find that a so-called "hatchet man' for a Government now
overthrown is not eligible for 243(h) relief, why then should not a man
who has served with the SIM in a minor capacity be granted withholding
of deportation by reason of anticipated persecution?'
In answer to counsel's arguments we find that the situations
presented in the Diaz and Torres cases have little relevancy to the
present application for relief. As this Board has so often said in
prior cases, applications for withholding of deportation based upon a
claim of persecution must of necessity be considered on individual
circumstances and factual situations. The burden of showing persecution
is and must be upon the applicant for the requested relief. Generally
speaking, the persecution to which section 243(h) refers connotes
confinement, torture, or death inflicted on account of race, religion,
or political viewpoint. This, of course, refers to physical
persecution. /1/ It has been held that the section involved relates
also to economic proscription which is so severe as to deprive a person
of all means of earning a livelihood. /2/ The present case urges in
effect that the respondent is fearful for his physical well-being if he
is to be returned to the Dominican Republic and this fear is based upon
his short service in a minor capacity as a member of the SIM. It is our
judgment, therefore, that our decision must be based upon a
consideration of the possibility of actual physical persecution to which
the respondent would be subjected. His testimony in this regard has
been reviewed at length by the Special Inquiry Officer. Nowhere in this
record is there proof or testimony sufficient to warrant our reversing
the holding of the Special Inquiry Officer. The present government in
the Dominican Republic is a stable one. The organization to which the
respondent belonged is now defunct. The respondent has failed to show,
except by surmise and speculation, any positive, conclusive or even
persuasive reasons for us to assume that he would be physically
persecuted in his home country. By his own testimony his service with
the SIM was undistinguished and innocuous.
From all the above and after a careful and thorough study of the
record before us, this Board has concluded that the application for
withholding of deportation under section 243(h) is not warranted in this
case. Our consideration as hereinabove described has been limited to
the claim of the male respondent. Inasmuch as we find his application
to have no merit, it follows that the application of the female
respondent should also be denied. Accordingly, the following order will
be entered.
ORDER: It is ordered that the appeals be and the same are hereby
dismissed.
(1) Blazina v. Bouchard, 286 F.2d 507, C.A. 3, Feb. 2, 1961.
(2) Dunat v. Hurney, 297 F.2d 744, C.A. 3, Jan. 24, 1962.
Beneficiary's adoption in China by petitioner's mother on behalf of,
and without the knowledge of, the petitioner and without petitioner
knowing of the existence of, or personally meeting, beneficiary until
latter was over 7 years of age does not constitute a valid adoption in
accordance with Article 1079 of the Chinese Civil Code since it has not
been established the adoption was effected in writing or the beneficiary
was brought up since infancy, meaning under 7 years of age, as a child
of the adopter.
The case comes forward pursuant to certification of the order of the
District Director, Honolulu, Hawaii dated January 16, 1964 directing
that the petition be granted.
The petitioner, a native of China, a naturalized citizen of the
United States, 86 years old, male, seeks preference quota status under
section 203(a)(4) of the Immigration and Nationality Act on behalf of
his married adopted son, a native and citizen of China, who is alleged
in the visa petition to have been born on June 16, 1927 at Ha Sa Ping
Village, Toyshan, China.
The petitioner made a sworn statement to a Service officer on May 1,
1963 (Ex. C). He testified that he was first married in 1930 to Wong
Shee in Ha Sa Ping Village, who gave birth to a son in 1932. His first
wife died in 1933 and their son died in 1934. Then he was married for
the second time in 1936 at the same village to Fong Shee by whom he had
no children. His second wife ran off about 1942 during the war with
Japan. He identified the beneficiary as his adopted son whose date of
birth he did not know. He explained that his mother, an old-fashioned
woman, thought she would bring in a male child to carry on in the
household as his son and that she adopted the beneficiary in 1934 while
he was not in China. There was no official record made of this
adoption. He stated that he learned about the adoption from one of his
cousins who came to Honolulu on his way to Peru. He first saw the
beneficiary on his 1935 trip to China when the child was about eight
years old and was living with his mother and his nephew's wife, Liu
Shee. He remained in China for approximately nine months during this
trip and the child resided with him and his second wife and that when he
left China in 1936 the child remained with his wife in the same
household as Liu Shee, his niece. He next saw the beneficiary in
December 1955 in Hong Kong and the beneficiary resided with him in his
household as his son until he left Hong Kong in February 1956. The
beneficiary came to Hong Kong in December 1955 accompanied by his wife
and two daughters. The petitioner's second wife had already left him
about 1942 or 1943. He explained that an affidavit dated December 5,
1962 in which he stated that he had adopted the beneficiary as his son
in 1932 and that he resided with his first wife from 1932 to 1933 and
with his second wife from 1935 to 1943 did not reflect the facts as he
had told them to his attorney but that the facts regarding the adoption
as set forth in his sworn statement were true to the best of his
knowledge; that his wife and his natural son passed away prior to the
adoption of the beneficiary by his mother.
The petitioner subsequently made trips to China in 1957 and 1960, of
two to four months duration respectively, and he lived with the
beneficiary and his family when he went to China in 1957 but in 1960 he
lived at a hotel because the beneficiary's quarters were too small. He
acknowledged the correctness of a summary of his situation would show
that he spent nine months with the beneficiary in 1935 to 1936 when he
was approximately eight years of age; that he did not see him again
until December 1955 when the beneficiary was 28 years of age when he
spent about two months with him and again two months with him in 1957,
making a total of 13 months that he had resided in the same household
with the beneficiary during his lifetime. The petitioner stated that
when he left China in 1936, when the beneficiary was approximately nine
years of age, the beneficiary resided with his second wife and his
nephew's wife, Liu Shee, also known as Wong Shun. He stated that his
second wife took care of the child up until the time she ran away then
his nephew's wife (his niece) took care of him. The petitioner stated
that he sent money to take care of the beneficiary but that he only
started keeping records since 1960, although he sent money previously
ever since his mother adopted the beneficiary, except during the war
years.
In a supplementary sworn statement dated May 10, 1963 the petitioner
stated that the beneficiary was born in China in 1927, sixth month sixth
day, corresponding to July 4, 1927 which information he received from
his cousin, although no official record exists of the beneficiary's
birth. He reiterated that his true son died in the 10th month of 1933,
Chinese calendar, corresponding to the 11th month of the Western
calendar. The petitioner again refuted an affidavit submitted by his
nephew's wife, Wong Shun, dated December 18, 1962, to the effect that
the beneficiary was adopted in 1933 at the age of four years; that the
beneficiary was six years old in 1933 because the petitioner went to
China in 1935 when the beneficiary was eight years old and he remembered
starting him off to school. The petitioner stated that his mother
adopted the beneficiary on her own accord and never told him and that he
did not take any action toward making the child his adopted child but
that he consented to and accepted this child as his adopted child. He
stated that he has continued to support this adopted son and as far as
he was concerned on the day his mother adopted the beneficiary that was
the day he had an adopted son.
The District Director's prior order, dated May 16, 1963, found that
based upon the testimony of the petitioner and all available evidence,
the beneficiary was approximately seven years of age at the time the
claimed adoption took place by the petitioner's mother in his behalf and
that the petitioner himself did not reside with the beneficiary until
after his eighth birthday. This conclusion is based upon a finding that
the beneficiary was born in July 1927. He also finds that the
petitioner could not have resided with the beneficiary for a period of
more than 9 months prior to the beneficiary's 21st birthday nor more
than 8 months after the beneficiary reached the age of 21 years, 4
months of which were in the same city but not in the same household.
The District Director concluded that the adoption was not in accordance
with Article 1079 of the Chinese Civil Code which provides that adoption
shall be effected in writing, unless the person to be adopted has been
brought up as a child of the adoptive parents since "infancy' which is
construed to mean a child not more than 7 years of age. The District
Director concluded that the petitioner has failed to establish that he
is a parent as defined in section 101(b)(2) of the Act or that the
beneficiary was ever a "child' as defined in section 101(b)(1)(E) of the
Act, and that the claimed adoption could not have been recognized as
legal under the Chinese Civil Code; that the petitioner is the only
remaining partner to the claimed adoption and he has failed to establish
that he has had legal custody of and has resided with the beneficiary
for the minimum period of two years as required by section 101(b)(1)(E).
He ordered that the visa petition be denied.
On appeal, by order dated September 25, 1963, after citing
authorities, the Board held that since the beneficiary was born on July
4, 1927, adoption under the Chinese law could have been possible in that
the petitioner's mother had adopted the child on his behalf before July
4, 1935 when the beneficiary became eight years of age, since under
Article 124 of the Chinese Civil Code ages are reckoned from the date of
birth. /1/ Our decision ordered that the District Director should
consider the case in the light of the holding in Matter of Moon, 9 I. &
N. Dec. 633 and Matter of Yee Kwong Woo, 9 I. & N. Dec. 176. We
remanded the case for additional proof of the age at which the
petitioner claimed to have adopted the child, and to submit proof of
support, letters or photographs although the petitioner admitted that he
did not know of the adoption until a year after it occurred.
At remand, counsel for the petitioner submitted two affidavits by Lau
Sa Nim and Liu Shee in support of the petition. The affidavit of the
beneficiary, Lau Sa Nim, asserted that he was born on the 16th of June
in 1929 and that he was adopted by the petitioner in 1933 when he was
four years old; in addition, he submitted a Hong Kong Identity Card
issued to him on February 9, 1956 showing that he was then 27 years of
age. The affidavit of Liu Shee also known as Wong Shun, the niece,
repeats her previous affidavit that she was present in 1933 when the
beneficiary was adopted at the age of four years; that when, the second
wife of the petitioner disappeared in 1944 during the Japan War, she
took care of the beneficiary in her house since that year.
The order of the District Director, dated January 16, 1964, refers to
this additional evidence, and concedes that an act of adoption occurred
in 1933 when the beneficiary was either four or six years of age and
that this adoption was valid under Chinese law. This finding is
directly contrary to the testimony of the petitioner that his first wife
died in 1932, that his natural son by that first wife died in November
1933, that the beneficiary was born on July 4, 1927, and that he
questioned this same niece's affidavit about the beneficiary being four
years old in 1933 but on the contrary alleges that he was six years old
in 1933. The petitioner also has stated that the beneficiary was
adopted in 1934 after the death of his natural son in order to provide
him with an heir. The District Director in his order of January 16,
1964 comments that the petitioner submitted no proof of support, no
letters, no photographs dated prior to 1958. Apparently nonplussed by
this dilemma, and unable to reach a logical conclusion, the District
Director ordered that the petition be granted without citing any Chinese
law, and certified his decision to this Board.
In a memorandum of law dated March 3, 1964 the Service takes sharp
exception to that portion of our decision of September 25, 1963 which
holds that a valid infancy adoption occurred merely upon the
petitioner's mother taking the beneficiary into her household in China
without the petitioner's knowledge, and the child's residence thereafter
with the petitioner's mother. The Service urges that under such a
theory, an immigration benefit could enure whether neither the
petitioner nor his wife had ever seen the beneficiary or even knew of
his existence; and where the sole basis for the claim to status is the
alleged unwritten and undeclared action of a long-deceased parent or
grandparent. The Service urges that the decision in the instant case
must rest on whether the evidence establishes a valid infancy adoption
when the petitioner himself first met the beneficiary in 1935, and, if
so, whether there was the requisite two years of legal custody and
residence with the petitioner and/or his second spouse.
A memorandum from Dr. Tao-tai Hsia, Far Eastern Law Division, Library
of Congress dated May 25, 1964 sets forth again that Article 1079 of the
Chinese Civil Code provides that adoption must be effected in writing,
unless the person to be adopted has been brought up since infancy as the
child of the adopter. The Judicial Yuan Interpretation Chinese Republic
Year 31 (1942) No. 2331 defined "infancy' in the above paragraph as a
child who is under seven years of age and Dr. Hsia has informally stated
that this is to be interpreted as meaning Western reckoning. The
Supreme Court Decision Chinese Republic Year 29 (1940) shang, No. 702
stated that if a childless person, subsequent to the book on Family Law
of the Civil Code coming into force, takes another person's child as his
own child and such act meets the adoption requirements in the Civil
Code, although the party (the child) has been called a szutzu
(instituted heir) rather than yang-tzu (adopted son), he is nevertheless
deemed to be an adopted son in the Civil Code. /2/
With regard to the question of how a civil case is to be decided if
no applicable law can be found, Article 1 of the Civil Code /3/
provides: In civil matters if there is no provision of law applicable
to a case, the case shall be decided according to custom. If there is
no such custom, the case shall be decided in accordance with the general
principles of law.
While the Service makes reference to a work entitled An Outline of
Modern Chinese Family Law by Marc Van der Valk (Peking, 1939), to
deprecate the importance of the "institution of an heir' as contrasted
to an adoption under the Chinese Civil Code, it nevertheless appears
according to the Far Eastern Law Division of the Library of Congress,
that both an instituted heir and an adopted son are deemed to be adopted
sons in the Civil Code if the act meets the adoption requirements in the
Civil Code.
From the evidence available in this confused record, we believe that
the best evidence consists of the sworn statements of the petitioner
whose testimony appeals to us as being both forthright and honest. The
petitioner has contradicted the affidavit of his niece and the
subsequent affidavit of the beneficiary does not appear to be
persuasive. We will make a finding that the beneficiary was born on
July 4, 1927; that the beneficiary was adopted by the petitioner's
mother after the death of his first son in November 1933 probably in
1934; that the petitioner did not learn about the adoption until he
heard from a cousin probably in 1935; that he did not meet the
beneficiary until he went to China in 1935 when the beneficiary was
eight years old and remembered starting him off to school; and that the
beneficiary did not reside with the petitioner and with his second wife
until 1935 when he was eight years of age.
The burden of proof of establishing eligibility for the benefit
sought under the immigration laws rests upon the petitioner. Matter of
Y K W , 9 I. & N. Dec. 176 deals only with the matter of the two-year
legal custody and residence requirement contained in section 101(b)(1)(
E) of the Immigration and Nationality Act as amended and holds that such
custody and residence may be with the adoptive mother, assuming that a
valid infancy adoption has taken place. However, in the instant case,
the petitioner has not borne the burden of establishing that a valid
infancy adoption has taken place. We believe that the evidence
establishes that the petitioner did not know of the existence of the
beneficiary until he was over seven years of age and did not personally
meet the beneficiary until he was eight years of age. There is no
evidence that the adoption was effected in writing as required by
Article 1079 of the Chinese Civil Code and the petitioner has not borne
the burden of establishing that the beneficiary was brought up since
infancy, meaning under seven years of age, as a child of the adopter.
The visa petition will be denied.
ORDER: It is ordered that the order of the District Director dated
January 16, 1964 granting the visa petition be reversed and that the
visa petition be and the same is hereby denied.
(1) This conclusion appears to be of doubtful validity since the
Judicial Yuan Advisory Opinion, 1942, No. Yuan 2332, cited at page 153
of 8 I. & N. Dec. 151 states that the "infancy' provision shall be
construed to mean a child not more than 7 years of age; according to
the Far Eastern Section of the Library of Congress, the age is computed
according to Western reckoning.
(2) Mei, Chung-hsieh and T'ao Po-Ch'uan, ed. Liu fa liu yung hiu pien
(Collection of six kinds of materials on six codes), II, Taipei, 1958,
p. 541.
(3) Book I, General Principles of the Civil Code was promulgated on
May 23, 1929, and came into force on October 10 of the same year.
(1) Conviction of "aggravated embezzlement' under Article 646 and Article 61, No. 11, of the Italian Penal Code, is conviction of a crime involving moral turpitude and is not classifiable as a "petty offense' since the equivalent offense under section 22-1210, District of Columbia Code, is "Embezzlement by executors or other fiduciaries,' punishable by a possible sentence of 10 years in jail.
(2) Although the above crime was committed in the United States, the
record of foreign conviction in Italy showing that it was a penal
conviction is conclusive evidence of the nature thereof. Inquiry dehors
the record of conviction as to the legal status of the tribunal which
rendered the judgment of conviction is precluded, other than with rare
exceptions relating to convictions in absentia for convictions for
political offenses.
The case comes forward on appeal from the order of the special
inquiry officer dated February 28, 1964, ordering that the status of
permanent residence in the United States granted by the Immigration and
Naturalization Service pursuant to section 245 of the Immigration and
Nationality Act be rescinded.
The record relates to a native and citizen of Italy, 51 years old,
male, who entered the United States in November 1960 at the Port of New
York on the SS "Cristoforo Colombo' and was admitted as a visitor under
section 101(a)(15)(B) of the Immigration and Nationality Act. On
January 15, 1962, he filed an application for status as a permanent
resident pursuant to section 245 of the Immigration and Nationality Act
and on March 13, 1962, the Service created a record of lawful admission
for permanent residence.
On March 29, 1963, the Service instituted this proceeding under the
provisions of section 246 of the Immigration and Nationality Act to
rescind the status of permanent resident previously accorded the
respondent. It contends that the respondent was convicted of a crime
involving moral turpitude which disqualifies him for the status of
permanent resident at the time it was granted to him. Inasmuch as the
respondent had stated in his answer to Question 10 of the application
form, "I have not been charged with a violation of law,' the Service
also contends that he concealed his criminal record and obtained
documentation as a permanent resident by fraud or by willfully
misrepresenting a material fact. Since one of the basic requirements
for status as a permanent resident under section 245 is that the person
applying be admissible to the United States, if the respondent was in
fact convicted of a crime involving moral turpitude not classifiable as
a petty offense, he was not so admissible.
The respondent was convicted in the Court of Osimo, Province of
Ancona, Italy, on January 20, 1951, of the crime of embezzlement,
pursuant to Article 646 of the Italian Penal Code and Article 61, No.
11, of the Italian Penal Code. A copy of the record of conviction and
the statute are a part of the record. Differences have arisen in the
translation of the record of conviction, the translator for the
respondent translating it as "embezzlement' and the translator for the
Government interpreting the phrase as "misappropriation.' Counsel for
the respondent wishes to accept the Service translation. According to
the Service translation, Article 646 of the Italian Penal Code is
entitled "Misappropriation' and provides that "Anyone who, in order to
obtain for himself or others an unjust profit, misappropriates money or
someone else's property, which he is holding under any condition, is
punishable, upon being sued by the offended person, to imprisonment of
up to three years and to a fine of up to 10,000 lire.' If the act is
committed upon articles held necessarily on deposit (c. 1864.s) the
penalty is increased. Legal action will be instituted, if the
circumstances indicated in the preceding paragraph apply or any of the
circumstances indicated in No. 11 of Article 61 of the Italian Penal
Code. Article 61, No. 11, provides that when someone commits the deed
with the abuse of authority or domestic relations, or else with abusing
relations of office, relation of employment, of cohabitation, or of
hospitality.
The translation of the record of conviction against the respondent
(Exhibit 5) shows that in the Police Magistrate's Court of Osimo, in
penal proceeding against the respondent, he was charged with the crime
of aggravated embezzlement, he having misappropriated in order to obtain
an unjust profit 24 accordions intrusted to him for business or
commercial purposes while he was in the United States, and that he
appropriated the money received from the sale of these accordions in the
amount of $1421, as a result of which on January 20, 1951, he was
convicted of the crime of aggravated embezzlement or misappropriation
and was sentenced to two months imprisonment and to 10,000 lire fine
plus the payment of the costs of trial; it was further ordered that the
execution of this sentence be suspended according to law and that no
mention be made of the conviction in the certificate of penal records.
The significance of this language does not appear and it may be that
this language meant that the respondent could receive a "nolo' penal
record from Italy. However, the records pertaining to the crime were
still in existence and were readily obtainable, and it is obvious that
the record of conviction was not meant to be extinguished. Certificates
showing the conviction were readily obtained many years later. It is
believed that whether the crime mentioned in the record of conviction
and the statute is translated "embezzlement' or "misappropriation,' the
result is in principle the same because the words are essentially
synonymous. /1/
In determining whether an offense committed in a foreign country
shall be considered a misdemeanor classifiable as a petty offense under
section 4 of the Act of September 3, 1954, or under section 212(a)(9) of
the Immigration and Nationality Act, recourse may be had to the
equivalent offense under the United States law, Title 18 of the United
States Code or if not found therein, Title 22 of the District of
Columbia Code: after the equivalent offense under United States law has
been identified for the purpose of determining whether an offense
committed abroad shall be considered a misdemeanor classifiable as a
petty offense, the definitions of 18 U.S.C. 1 are to be applied. This
section provides in 18 U.S.C. 1(3) that any misdemeanor, the penalty for
which does not exceed imprisonment for a period of six months or a fine
of not more than $500 or both, is a petty offense.
Comparing the offense under consideration with the comparable crime
in the United States, the crime appears to fall under section 22-1210,
District of Columbia Code, entitled "Embezzlement by executors or other
fiduciaries.' In the instant case the relationship was clearly that of a
principal and agent or fiduciary. Conviction under the District of
Columbia Code could have led to a sentence of ten years in jail. It is
not believed that the contention of counsel that section 22-1211,
District of Columbia Code, entitled "Taking property without right'
applies to this conviction.
Defense has been made that the respondent is entitled to the benefits
of Articles 163 and 167 of the Italian Penal Code which by its term
extinguishes the crime after a passage of a period of time during which
the respondent is not convicted of any other crime. In addition, the
respondent's conviction was declared amnestied by a Government decree
dated December 19, 1953. The questions of foreign extinction or
expungement statutes and amnesty declarations were previously considered
by this Board. /2/ We have held that the extinction or expungement of a
record of conviction in Italy or an amnesty is not effective under the
immigration laws, since it constitutes no more than a legislative or
executive pardon from a foreign government. /3/
Counsel for respondent also asserts that the conviction of the
respondent was not a penal conviction but constituted a civil action;
and that, inasmuch as the crime was committed in the United States, the
court in Italy had no jurisdiction. The record of the foreign
conviction showing that it was a penal conviction is conclusive evidence
of the nature of the conviction. Nor can we go behind the record of
conviction to inquire into the legal status of the tribunal whose
judgment of conviction is before us other than with rare exceptions
relating to convictions in absentia or convictions for political
offenses, neither consideration being present in the instant case. /4/
The special inquiry officer has rested his decision solely on the
ground that the respondent was inadmissible under section 212(a)(9) of
the Immigration and Nationality Act at the time his status was adjusted
to that of a permanent resident as an alien who had been convicted on
January 20, 1951, of a crime involving moral turpitude, to wit,
embezzlement or misappropriation in violation of Article 646 of the
Italian Penal Code. As a consequence, he was not eligible for
adjustment of status pursuant to section 245. The special inquiry
officer finds it unnecessary to pass upon the other charge of obtaining
documentation as a permanent resident by fraud or willful
misrepresentation of a material fact by concealing his conviction.
Counsel objects to the fact that the respondent was not permitted to
testify regarding the circumstances of the conviction and his
understanding of the sentence or amnesty. Inasmuch as the charge of
obtaining documentation by fraud or willful misrepresentation of a
material fact was not considered by the special inquiry officer, it is
felt that such testimony is not relevant. The appeal will be dismissed.
ORDER: It is ordered that the appeal from the order of the special
inquiry officer rescinding under section 246 of the Immigration and
Nationality Act the permanent resident status previously granted the
respondent pursuant to section 245 of the Immigration and Nationality
Act be and the same is hereby dismissed.
(1) Black's Law Dictionary, 4th Edition; Cassell's Italian-English
Dictionary.
(2) Matter of B , 7 I. & N. Dec. 166; Matter of G , 5 I. & N. Dec.
129.
(3) Mercer v. Lence, 96 F.2d 122 (10 Cir., 1938), cert. den. 305 U.
S. 611; Weedin v. Hempel, 28 F.2d 603 (9 Cir., 1928); United States ex
rel. Palermo v. Smith, 17 F.2d (2 Cir., 1927).
(4) United States ex rel. Mylius v. Uhl, 203 F.2d 152 aff'd. 210 F.
2d 860 (2 Cir., 1914); Giammario v. Hurney, 311 F.2d 285 (3 Cir.,
1962); Matter of F , 8 I. & N. Dec. 469.
An unauthenticated Jordanian judgment of divorce obtained in absentia
by the wife in Jordan while the husband was in Colombia lacks essential
proof of due process for recognition as valid in Puerto Rico for the
purposes of a subsequent marriage in that jurisdiction since neither
party was before the court, there were no witnesses, and the court
apparently considered no evidence except the ex parte statements of
plaintiff/wife's attorney and assumed defendant/husband's concurrence
because of his absence. Consequently, the subsequent marriage of the
husband in Puerto Rico to a native and citizen thereof is not valid for
immigration purposes and does not serve to confer nonquota status.
The district director denied this visa petition on the ground that
the evidence fails to establish sufficiently that petitioner and
beneficiary are validly married. He certified the case to us for final
decision. Except for one point, the reasons underlying our decision
differ completely from those on which the district director relies. We
reach the same conclusion, however. Therefore we affirm the district
director's order.
Beneficiary is a 43-year-old native and national of Jordan of the
Islamic faith. He entered the United States on June 14, 1961, at San
Juan, Puerto Rico as a visitor. Prior to that entry he resided in
Colombia for about a year and a half.
Beneficiary was married in Jordan. He says that in October of 1960
he was divorced in Jordan from his Jordanian wife. Six children of that
marriage -- four girls and two boys -- live in Jordan.
Petitioner married the beneficiary at San Juan, Puerto Rico, on
September 29, 1961. She is a native of Puerto Rico, 50 years old, who
has not been previously married.
The petition was filed on December 20, 1961, and has been before us
twice prior to this certification. Originally, petitioner submitted a
declaration by beneficiary's Jordanian wife. That declaration states in
Arabic and English that beneficiary has been declarant's lawful husband,
that he divorced her on the 11th day of October 1960, that he left her
from that date, and that there has been no relation between them at all
after that date. Both the Arabic and English versions contain an
obvious erasure in the year of divorce.
The district director had the Federal Bureau of Investigation's
laboratory examine the document. The laboratory on March 14, 1962,
reported that the original date on the English version has been changed
from 1961 to 1960 and that the "l' on the typewriter making the change
differed from the "l's' on the document. The laboratory also reported
that the last digit in the year in the typewritten Arabic text has been
erased and an Arabic "0' written in ink. The laboratory could not
determine the erased character.
Apparently the Service either had checked on the document before
submitting it to the Federal Bureau of Investigation or had information
on the results of the laboratory findings before receiving the formal
report. In a sworn statement taken almost two months before the Federal
Bureau of Investigation's report, a Service officer confronted
beneficiary with the information that the declaration had been altered.
The officer said experts on documents had determined the year of the
divorce had been changed from 1961 to 1960. Beneficiary denied any
changes had been made in the document.
The district director initially held petitioner had failed to
establish that her marriage to beneficiary occurred subsequent to his
divorce. He based his conclusion on the evidence that the date of
petitioner's marriage, September 29, 1961, preceded the date October 11,
1961, originally given for the divorce on the declaration. Petitioner
appealed from that decision, but offered nothing to rebut the evidence
of the erasure and alteration on the declaration. Our decision of
September 28, 1962, upheld the district director's analysis of the
evidence.
Subsequently petitioner submitted directly to us a "Court Notice in
Absentia' by the Qadi of Ramallah, a religious judge, which confirmed
that beneficiary divorced his Jordanian wife on October 11, 1960. On
October 26, 1962, we certified the case to ourselves, withdrew our order
of September 28, 1962, reopened the proceedings, remanded the case to
the district director for consideration of the new evidence, and
directed the district director to certify the case to us for review if
his decision were adverse. The district director again denied the
petition bringing the case to its present posture.
The district director contends that the later evidence of the court
notice does not alter the fact that the year of divorce was changed from
1961 to 1960 on the declaration originally submitted. He asserts that
the court notice, issued on September 9, 1962, granted a retroactive
divorce to the wife. He concludes, therefore, that beneficiary and his
Jordanian wife were not finally divorced until September 9, 1962,
because the retroactive effect of that divorce should be disregarded.
Thus, he argues that the divorce granted by the Qadi of Ramallah failed
to cure the invalidity of petitioner's marriage to the beneficiary.
Counsel for petitioner, in his brief in opposition to the district
director's decision, argues that the change in the date on the
declaration merely corrected a clerical error. In any event, he
contends, the judgment of the Court of Ramallah establishes that
beneficiary was divorced in October of 1960.
The district director and petitioner's counsel each recognize the
basic issue -- the validity of the marriage performed on September 29,
1961, at San Juan, Puerto Rico, between petitioner and beneficiary.
In this proceeding petitioner has the burden of establishing the
validity of the relationship upon which the petition is based.
Therefore, the rule presuming validity of the most recent marriage has
no applicability here. /1/ Ordinarily, we follow the general rule that
the validity of a marriage depends upon the law of the place where the
marriage was contracted. /2/ We shall consider the validity of the
marriage here under the law of Puerto Rico wherever that law is
applicable.
Several questions arise under the primary issue here, however. We
shall consider first the one which has primarily occupied the parties up
to this point.
Close examination of the declaration executed before the Mukhtar of
Ein Yabroud village by beneficiary's Jordanian wife reveals that the
Service's theory of this case has been erroneous from the beginning.
The declaration bears on its face evidence which demonstrates
conclusively that the divorce to which the document refers could not
have occurred in October of 1961. A rubber stamp impression in Arabic,
which authenticates the signature of the district governor, bears the
date of February 22 and a year which, although somewhat indistinct, is
either 1960 or 1961. The revenue stamp affixed to the document
distinctly bears the date February 22, 1961, written upon it. Thus, the
declaration was executed prior to beneficiary's marriage in Puerto Rico.
Obviously, when the document was originally prepared, the year in which
the document was executed was used erroneously for the year of the
divorce. Later, the dates in the Arabic and English texts were changed
to correct that error.
Although there is actually no conflict as to the date of divorce
between the declaration and beneficiary's testimony, the record does
contain serious conflicts. The district director's opinion says that
whether beneficiary renounced his first wife at all is highly
questionable. That is the one point in his opinion with which we agree.
Certainly, beneficiary's own testimony casts doubt upon the fact of his
divorce.
According to beneficiary's Jordanian wife's declaration -- confirmed
by the Qadi's court notice -- beneficiary exercised his right under
Moslem law to divorce his wife, unilaterally, by declaring to her that
she was divorced from him. /3/ Apparently he made a single statement,
which, under certain conditions, he could revoke. /4/ Apparently, also,
there were no witnesses to the divorce. Moslem law does not require
witnesses or any particular procedure, although the husband may, if he
desires, declare his divorce under more formal circumstances than in
beneficiary's case. Jordan recognizes Moslem law as the personal law of
a Moslem.
The district director notes, that although petitioner presented the
declaration of the Jordanian wife and the Court Notice in Absentia as
evidence that beneficiary divorced his first wife, beneficiary says that
his Jordanian wife divorced him. /5/ The immigration officer who took
beneficiary's statement had the declaration before him at the time but
failed to call beneficiary's attention to his wife's statements that he
divorced her.
The question who divorced whom ordinarily would not be important to
us so long as we were satisfied a divorce occurred. That question,
however, becomes important to the issue whether a divorce under Moslem
law occurred at all. A wife in Jordan may divorce her husband if he
delegates to her the right of divorce. In the absence of such right,
she can, in certain circumstances, request a divorce from a religious
judge.
There is no evidence that the wife received a judicial divorce on
October 11, 1960 -- the date both parties say the divorce occurred. /6/
Therefore, unless beneficiary had specifically delegated to his
Jordanian wife the right of divorce, he would have had to be the moving
party in a divorce which occurred in the manner here set forth. There
is also no evidence here of any such delegation. In these
circumstances, beneficiary's denial that he divorced his wife raises a
serious question whether the divorce occurred at all.
Beneficiary's Jordanian wife's declaration does not show whether
beneficiary was in the village at the time of the divorce. The language
in both the Arabic and English versions is consistent with either his
presence or absence.
The court notice does indicate that beneficiary came to this
hemisphere after divorcing his wife. /7/ The judge, however, appears to
have merely repeated what the wife's lawyer told him. Therefore, it is
possible the statement of facts in the court notice does not accurately
reflect all of the details.
Beneficiary's sworn statement of January 26, 1962, contains confusing
information. According to that statement, beneficiary was in Colombia
for a year and a half before entering Puerto Rico in June of 1961. On
that basis, he would have left Jordan in about December of 1959 or
January 1960. The immigration officer who took the statement referred
to beneficiary's presentation of an air line ticket from Avianca
(Colombian Airlines) for round-trip transportation from Beirut to San
Juan and return. The record does not show where or when the ticket was
issued or whether any of the transportation covered thereby had been
used. Thus, the possibility arises that beneficiary had returned to the
Near East after he took up residence in Colombia. /8/
The evidence that the declaration was executed in February of 1961
conflicts with beneficiary's testimony that he received that document
six, seven, or eight months after he arrived in Colombia, or about June
to August 1960, if his statement about 18 months' residence in Colombia
is accurate. Thus, either some of beneficiary's statements are in error
or the facts are not as he represents them.
As the record now stands, however, we find that beneficiary was in
Colombia at the time the divorce is said to have occurred. Under
Jordanian law beneficiary could have divorced his wife by a unilateral
pronouncement of divorce in Colombia. Beneficiary, of course, denies
that he divorced his wife at all, but the record otherwise discredits
that statement. As we have seen, both the documentary evidence and the
circumstances here refute beneficiary's statement that his Jordanian
wife divorced him. Therefore, the evidence is inconclusive on the
question whether an absentee divorce occurred.
In view of the discrepancies in the record and the highly informal
circumstances under which the alleged divorce occurred, however, the
possibility arises that beneficiary did repudiate his Jordanian wife
after coming to this hemisphere and then arranged with her to prepare
the declaration showing their status as divorced. /9/ On the basis of
this record, we believe that if the divorce occurred at all it probably
occurred under these circumstances.
If by any chance, however, beneficiary divorced his wife by a single
pronouncement of repudiation while he was in the village in Jordan, the
record also raises a question on the finality of the divorce under
Jordanian law. Beneficiary said in his sworn statement that he wrote to
his Jordanian wife, presumably from Colombia, asking her to join him.
Attempts by beneficiary at reconciliation, if they occurred during the
idda period, would nullify such a repudiation. /10/
Thus, this highly unsatisfactory record does not establish that a
divorce under Moslem law occurred at all. If, however, such a divorce
did occur, we find that it was an absentee divorce pronounced in
Colombia. A Moslem divorce pronounced in a jurisdiction which does not
ordinarily apply Moslem law raises a serious question of its validity.
/11/ In the unlikely possibility a divorce occurred while beneficiary
was in Jordan, the record does not establish that the divorce is final
and valid under Jordanian law.
Moreover, for reasons other than conflicting statements, we accord
little or no weight to the Jordanian wife's declaration and no weight to
the court notice. Deficiencies in those documents further strengthen
our conclusion that the record fails to establish a valid divorce.
We have shown that beneficiary's testimony conflicts in certain
particulars with documentary evidence submitted by petitioner. We now
consider the effect of that documentary evidence apart from any such
conflict. Solely for purposes of discussing that effect, we shall
assume that Puerto Rico would recognize a divorce pronounced under the
circumstances alleged here.
Regardless of objections which might be raised against beneficiary's
Jordanian wife's declaration as unsworn, hearsay, or lacking proper
authentication, we may accept it for our purposes for whatever probative
value we might attach to it. We should then consider it simply as a
statement by the wife, divesting it of any official character.
That document would probably not be acceptable under Puerto Rican
law, however. Apart from any question of lack of proper authentication
and hearsay, the Code of Civil Procedure of 1933 contains specific
provisions for conditions under which affidavits may be used. /12/ The
use for which petitioner offers the declaration is not included. /13/
In all cases not covered by the provisions for use of affidavits, a
written declaration under oath must be a deposition as prescribed by the
Code. /14/ The Puerto Rican Rules of Civil Procedure of 1958 have
preserved the provisions of the Code of Civil Procedure of 1933
pertaining to affidavits and depositions.
The Court Notice in Absentia handed down on September 9, 1962, by the
religious court at Ramallah has in Jordan the effect of a judgment. The
district director, as we have seen, contends that, even assuming
beneficiary divorced his Jordanian wife on October 11, 1960, beneficiary
was not free to marry petitioner at the time of their marriage because
the divorce did not become final until the court's action in 1962. The
district director believes that the court attempted to grant a
retroactive divorce to beneficiary's first wife. He argues that the
retroactive effect of the judgment should be disregarded. On the other
hand, petitioner's counsel argues that the judgment of the Qadi is
similar to an appellate court's judgment affirming a decree of divorce.
He says the decree would become final as of the time the lower court
decision would be final in absence of an appeal.
Neither of these views correctly applies Jordanian law. The judgment
is not in any way a judgment or decree of divorce and does not attempt
to grant a retroactive divorce. It merely confirms a divorced status
which it recognizes already exists. Taking the facts as the court found
them, the divorce became final as to both parties when the idda period
elapsed without a resumption of the marital status. Assuming that the
divorce could be satisfactorily established, it already had full legal
effect in Jordan.
Therefore, petitioner's counsel's contention that the Qadi's judgment
does not affect the date upon which the divorce became final is correct,
although his analogy to an appealed judgment of divorce is
inappropriate. There has never been any decree of divorce here. The
religious court did not review any divorce proceedings, but merely
determined for its purposes that a divorce had occurred as alleged.
We consider the authenticity of the Qadi's judgment has not been
established sufficiently for us to consider it as official evidence of
beneficiary's status as a divorced person. /15/ The judgment of the
religious judge has not been authenticated in a manner acceptable in
Federal judicial proceedings. /16/ The certification of our vice consul
in Jerusalem is merely an acknowledgment of execution of the translation
of the document. It serves to identify the translator. There is
nothing to authenticate the signature of the judge or to certify that he
is the official custodian of the record. Although the Federal Rules do
not control our proceedings, we may be guided by them.
The Puerto Rican Rules of Civil Procedure of 1943 contained a Rule 44
identical, except for one slight variation, with Federal Rule 44. That
rule was not continued in the 1958 edition of the Puerto Rican Rules.
Section 431.8 of the Code of Civil Procedure remains in effect, however.
/17/ That section prescribes a form of authentication similar to the
provisions of Rule 44. Thus the evidence of the judgment of the
religious court in Ramallah is unacceptable in its present form for our
purposes and probably would be unacceptable as evidence in a judicial
proceeding in Puerto Rico. /18/
Even if the evidence of this judgment were in proper form, however,
more fundamental objections to its evidentiary value arise. Neither of
the parties were before the court. Beneficiary's Jordanian wife
appeared only by her attorney. The judgment itself is described as a
notice in absentia as to the defendant and recites that he had departed
to an unknown destination in the United States. Service of the
defendant was by publication only, probably by posting a notice at the
court or by inserting a notice in the local press. Moreover, no
witnesses appeared. The court apparently considered no evidence except
the ex parte statements of plaintiff's attorney. The court assumed
defendant's concurrence because of his absence.
Under these circumstances, minimum standards of due process of law
have not been met. Generally, before extending recognition to foreign
judgments, our courts require the judgments to reflect satisfaction of
such minimum standards. Even jurisdictions which authorize service by
publication in their own proceedings generally require personal service
upon a party as a condition for recognition of a foreign judgment. /19/
Recognition and enforcement of foreign judgments on the basis of
international comity are subject to much stronger inhibitions than
applications of foreign law in general. /20/
Even if there is no question about the propriety of the judgment
here, proceedings of the type underlying that judgment may be conducive
to fraud or collusion. For our purposes -- irrespective of formal
requirements -- the judgment adds little or no probative force to the
other evidence of record bearing upon beneficiary's status as a divorced
person.
The Puerto Rican Code of Civil Procedure -- after providing
specifically for foreign courts of admiralty and judgments against a
specific thing -- provides that in all other cases the judgment of any
tribunal of a foreign country, having jurisdiction to pronounce the
judgment, is presumptive evidence of a right between the parties and
their successors in interest by a subsequent title, and can only be
repelled by evidence of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. /21/ This
provision derived from the California Code of Civil Procedure. /22/
Such provisions indicate a legislative policy in favor of recognizing
foreign judgments. Courts, however, in determining whether a particular
judgment will be recognized, are apt to be guided by fundamental legal
principles and to give effect to the legislative policy where
application of the statutory directive would not conflict with those
principles. /23/ Moreover, the statutes recognize lack of jurisdiction
and want of personal service as grounds for possible nonrecognition. We
believe a court in Puerto Rico, regardless of any question of compliance
with formal requirements of authentication and certification, would not
give effect to the Qadi's judgment.
Generally, the Supreme Court of Puerto Rico relies upon the principle
of nationality, rather than domicile or place of marriage, in choosing
the law to be applied to determine the effect of a marriage. /24/ The
nationality rule applies most clearly where both spouses are citizens or
both are noncitizens of Puerto Rico. /25/ Moreover, the cases we have
found applied the national law of the noncitizens not to the marriages
themselves, which occurred outside Puerto Rico, but to the controversy's
subject matter -- located within Puerto Rico.
Apparently the application of the nationality principle where one
spouse is a citizen and the other a noncitizen of Puerto Rico has not
been authoritatively decided. Ordinarily, in such a situation we would
expect the court to follow the husband's law -- except for Puerto Rican
requirements for the form of celebration of the marriage if the marriage
occurred there. Quite clearly, however, a Puerto Rican court would not
apply beneficiary's national substantive law, which recognizes polygamy.
We are positive, therefore, that, regardless of beneficiary's alien
status, and regardless of his domicile, Puerto Rico would apply its own
substantive law to the marriage which occurred there, especially since
petitioner is Puerto Rican.
Marriage in Puerto Rico is a social institution, regulated and
controlled by public authority. /26/ Puerto Rican statutory provisions
expressly declare that a marriage not contracted and solemnized in
accordance with the provisions of law is invalid. /27/ The Civil Code
of Puerto Rico also specifically provides that a marriage is invalid if
contracted by a person who is already legally married. /28/
Moreover, the public attorney may bring an action for a declaration
of nullity of a marriage. /29/ The Puerto Rican Law of evidence
contains a presumption that a man and woman deporting themselves as
husband and wife have entered into a lawful contract of marriage, but
that presumption may be overcome. /30/ In any event, as we have seen,
such a presumption is inapplicable here. A certified copy of a record
of the civil registry constitutes only prima facie evidence of its
contents and may be rebutted. /31/
Although the Puerto Rican Code provisions declaring the invalidity of
marriages not complying with the statutory requirements are express and
in mandatory terms, the courts have determined whether noncompliance
with particular requirements of the statutes renders a marriage void ab
initio or merely voidable. The Supreme Court of Puerto Rico, has held,
however, that a marriage contracted by a person already legally married
is void and not merely voidable. /32/
The Puerto Rican legislature and Judiciary have each expressed a
strong public policy against marriage without termination of a prior
marriage. Petitioner has not established that beneficiary has the legal
capacity to contract marriage with her. Therefore, on the evidence
here, the marriage between petitioner and beneficiary is not valid in
Puerto Rico.
The petition depends upon the validity of that marriage. Therefore,
it must fail. For the reasons discussed herein, we approve the district
director's order denying the petition.
ORDER: It is ordered that the order of the district director denying
the petition be, and hereby is, approved.
(1) Matter of T S Y , 7 I. & N. Dec. 582, cf. Petition of Sam Hoo, 63
F.Supp. 439 (N.D. Calif., 1945); Petition of Lujan, 144 F.Supp. 150
(Guam, 1956).
A second marriage has been presumed valid in a deportation proceeding
in which the burden of proof was on the Government. The Government
charged deportability on the ground of bigamy. U.S. ex rel. Kazanos v.
Murff, 170 F.Supp. 182 (S.D. N.Y., 1959). (Matter of T S Y , supra,
arose in deportation proceedings but the issue was respondent's
eligibility for preexamination.)
The Supreme Court of Oklahoma has held that where the right of a
party to the relief sought depends upon a marriage, either ceremonial or
common law, the burden is upon that party to establish the facts
essential to constitute the marriage. Hawkins v. Hitchock, 365 P.2d 971
(1961) -- petition for letters of administration.
(2) The Acting Attorney General so ruled in Matter of P , 4 I. & N.
Dec. 610. That decision arose under prior law but also applies to the
Immigration and Nationality Act. Matter of Koehne, Int. Dec. No. 1282.
Circumstances under which we have departed from this rule are not
present here. See, for example, Matter of G , 61 I. & N. Dec. 337;
Matter of Napello, Int. Dec. No. 1303.
(3) The wife evidently made the declaration to comply with the
Palestinian Law of Marriage and Divorce Registration, of July 23, 1919,
which is in force in beneficiary's area in Jordan.
(4) See Appendix "A.'
(5) Petitioner's counsel refers to the declaration and court notice
as evidence that the beneficiary was divorced from his first wife but
does not discuss the discrepancy between beneficiary's statements that
his wife divorced him and the statement in the documents that
beneficiary divorced his wife.
(6) Beneficiary says that his wife sent him "a paper from the court,'
referring to the declaration. The declaration became an official record
under Jordanian law through registration. It is not a judicial
document, however.
(7) The translation given in the record reads in part:
Since the claimant Amira claimed through her lawyer that the accused
Awadallah in absentia, whose place of residence is unknown and whom has
been decided to be judged in the courts in absentia, was her husband and
carried with her marital relations, according to the Islamic Religion,
and divorced her at her village, Ein Yabroud, on the 11th of October
1960, by telling her (You are divorced from me) and abstained thereafter
from marital relations, and departed to an unknown destination in the
United States, requested the confirmation of divorce. (Emphasis
supplied.)
This version of the Arabic text is somewhat ambiguous, since it is
not clear whether "thereafter' modifies "departed' as well as
"abstained.' The critical portion of the original text may be translated
more accurately, however, to read: * * * After he divorced her, he left
for an unknown place * * *.
(8) The record does not contain any information from beneficiary's
passport showing where and when he obtained his Colombian visa,
departures from or entries into any country, or the place and date of
issuance of his nonimmigrant visa for this country. Avianca operates to
Europe via San Juan. Perhaps the officer misstated the information on
the ticket. It may have read Bugota to Beirut (with a connecting
carrier) via San Juan and return or simply Bogota to San Juan and
return. Either of these situations would fit more logically into
beneficiary's testimony. Moreover, beneficiary also presented a reentry
permit issued on May 4, 1961, by the "Ministerio de Relaciones
Exteriores.' The immigration officer did not note the country of
issuance, but presumably it was Colombia. Thus beneficiary's round-trip
ticket could be expected to provide transportation to that country.
Although we think it unlikely, the ticket may have covered the
beneficiary's initial trip from the Near East to this hemisphere. In
that event the destination instead of Puerto Rico should have been
Colombia. Another possibility, but one which we also think unlikely, is
that beneficiary had previously returned to the Near East and in June of
1961 had traveled from Beirut to San Juan with a ticket providing for
return transportation to Beirut.
(9) The Palestinian Law of Marriage and Divorce Registration, adopted
by Jordan, does not prescribe any particular formalities for the
registration. Supra /1/
(10) See Appendix "A.' (Idda is the period during which a woman is
prohibited from remarrying after dissolution of a marriage, i.e., the
period of waiting for ascertainment of pregnancy.)
(11) Compare Matter of M , 7 I. & N. Dec. 556. See also Shikoh v.
Murff, 257 F.2d 306 (C.A. 2, 1958).
(12) Sec. 490, 32 L.P.R.A. Sec. 2061. That provision derived from
the Act of March 9, 1905 and Calif. Code of Civil Proc., Sec. 2009.
Although the declaration registers the divorce under Jordanian law,
it is, for our purposes, more in the nature of an affidavit. Even
though unsworn the document might be given the effect of an affidavit,
if its official character were recognized.
(13) California law at the time of adoption of the Puerto Rican Code
provided that Sec. 2009 applies only to matters of procedure and has no
relation to proof of facts necessary to establish a fact in sustaining a
cause of action. Lacrabere v. Wise, 141 Cal. 554, 75 P. 185 (1904).
This case still represents California law.
(14) Code of Civil Proc., 1933, Sec. 496, 32 L.P.R.A. Sec. 2081.
(Calif. Code of Civil Proc., Sec. 2019.
(15) Cf. Chung Young Chew v. Boyd, 309 F.2d 857 (C.A. 9, 1962);
Yaich v. U.S., 283 F.2d 613 (C.A. 9, 1960); U.S. v. Grabina, 119 F.2d
863 (C.A. 2, 1941); Balazinski v. Lebid, 65 N.J.Super. 483, 168 A.2d
(1961).
Our order which, because of petitioner's submission of the Court
Notice in Absentia, remanded these proceedings antedated the decision in
Chung Young Chew.
(16) F.R.C.P. Rule 44. 28 USC 1741.
(17) * * * Documents of any other class in a foreign country by the
original or by a copy, certified by the legal keeper thereof, under, his
seal if he has one, with a certificate of the minister or ambassador, or
a consul, vice consul, or consular agent of the United States in such
foreign country, to the effect that the document is a valid and
subsisting document of such country, and that the copy is duly certified
by the officer having the custody of the original. 32 L.P.R.A. Sec.
1803.8.
(18) We might consider evidence of this type, however, even though
not properly authenticated, if it was accepted without objection into
the record in adversary proceedings before a special inquiry officer.
Matter of O'Sullivan, Int. Dec. No. 1294.
(19) People v. Baker, 76 N.Y. 78 (1870) -- decree of divorce. Hilton
v. Guyot, 159 U.S. 113 (1895). See also 3 Freeman, Judgments Secs.
1497 -- 98 (5th Ed., 1925).
(20) Cheatham, Dowling, Goodrich, Cases on Conflict of Laws 274
(1936).
(21) Sec. 428, 32 L.P.R.A. Sec. 1800.
(22) Calif. Code of Civil Proc. Sec. 1915.
(23) Cf. Lichtig v. Lichtig, 81 P.R.R. 716 (1960); Poncc v. F.
Badrena and Hijos, 74 P.R.R. 210 (1952).
See also, R. B. Perez Mercado, Reconocimiento Validez y Medios para
hacer Efectivas Sentencias Extranjeras en Puerto Rico, 20 Rev.Jur.U.P.
R. 345 (1951); Comment, "Recognition of Foreign Country Divorces: Is
Domicile Really Necessary?' 40 Calif.L.Rev. 93 (1952); Note,
"Recognition of Foreign Country Divorce Decrees in California,' 2
Hastings L.J. 86 (1950).
(24) Cabassa v. Nadal, 23 P.R.R. 691 (1916); Antongiorgi v.
Registrar of Property, 6 P.R.R. 493 (1904); Cothran v. Registrar of
Arecibo, 25 P.R.R. 602 (1917); Los Conflictos De Leyes En Materia De
Matrimonio, Inmuebles Gananciales y Divorcio Segun La Doctrina
Puertorriquena, 9 Rev.Jur.U.P.R. 95 (1939). For nationals of the United
States the court applies a modified nationality doctrine referring to
citizens of Puerto Rico or of the individual states.
In our jurisprudence the rule that the place of marriage governs the
marriage's validity applies particularly to the celebration of the
marriage whereas the law of the domicile frequently affects the validity
of the resulting marital status. Ex parte Suzanna, 295 F. 713 (Mass.,
1924).
(25) Cases cited supra /24/ .
(26) U.S. v. Vega, 3 P.R.Fed. 480 (1908); Bravo v. Franco, 1 D.P.R.
242 (1902); Perez v. Leon, 52 P.R.R. 496 (1938), appeal dismissed 99
F.2d 851 (1938) sub nom. Leon v. Torruella.
Sec. 68, Civil Code, 1930, 31 L.P.R.A. Sec. 221, provides:
Marriage is a civil institution, originating in a civil contract
whereby a man and a woman mutually agree to become husband and wife and
to discharge toward each other the duties imposed by law. It is valid
only when contracted and solemnized in accordance with the provisions of
law; and it may be dissolved before the death of either party only in
the cases expressly provided for in this title.
(27) Among the requisites for validity of a marriage the Civil Code
prescribes: * * * authorization and celebration of a matrimonial
contract according to the forms and solemnities prescribed by law.
Civil Code, 1930, Sec. 69(3), 31 L.P.R.A. Sec. 231(3).
When a marriage has not been contracted according to the requirements
of this title, the same is null and void. Civil Code, 1930, Sec. 110.
31 L.P.R.A. Sec. 411.
(28) Civil Code, 1930, Secs. 69 and 70, 31 L.P.R.A. Secs. 231 and
232.
(29) Civil Code, 1930, Sec. 111, 31 L.P.R.A. Sec. 412.
(30) Code of Civil Proc., 1933, Sec. 464(29), 32 L.P.R.A. Sec. 1887(
29).
(31) Code of Civil Proc., 1933, Sec. 433, 32 L.P.R.A. Sec. 1805;
Estate of Felix Matos, 63 P.R.R. 72 (1944).
(32) Cruz v. Ramos, 70 P.R.R. 681 (1949).
Jordanian Law No. 92 of 1951 on Family Rights provides in part:
Art. 66 -- A husband of sound mind has the right to divorce his wife.
Art. 67 -- During a valid marriage, or during the idda period, a wife
is subject to divorce. The wife whose marriage has been annulled is not
subject to divorce even during the idda period.
Art. 68 -- A divorce pronounced under the influence of intoxication
or compulsion is not valid.
Art. 69 -- Every husband is entitled to three pronouncements of
divorce against his wife.
Art. 70 -- A contingent revocable repudiation conditioned on
performing an act or refraining from performing such act is not valid.
Art. 71 -- A divorce is not valid unless the pronouncement of
repudiation is addressed or directed to the wife.
Art. 72 -- Any pronouncement of repudiation made by number or number
sign in excess of one shall be considered as one pronouncement only.
Art. 73 -- A wife may return to her husband after the first or second
pronouncement, but after the third pronouncement she becomes irrevocably
divorced.
Art. 74 -- Every divorce is revocable except: the one where
repudiation has been pronounced three times; one made before
consummation of marriage; one conditioned on a payable sum of money;
and every divorce mentioned in this law as irrevocable.
Art. 75 -- A conditional divorce is valid.
Art. 76 -- A divorce pronouncement conditioned to become effective in
the future is valid.
Art. 77 -- A complaint by the husband seeking a judicial divorce
cannot be entertained unless the divorce is registered with the
religious judge. However, any evidence presented to the court by the
wife related to a divorce not initiated in the presence of the religious
judge is accepted.
Art. 78 -- The revocable divorce does not dissolve the marriage the
immediately. The husband is entitled to his martial rights which can be
displayed by statement or action during the idda. This right is
irrevocable.
Art. 79 -- If a husband returns to his repudiated wife during her
idda period, he preserves his marriage and his returning is not
contingent on the wife's consent or on a new dower.
Art. 80 -- Any return intended for the future or made subject to a
condition will not be valid.
Art. 81 -- The irrevocable repudiation terminates immediately the
marital life. However, if the irrevocable repudiation was made by one
or two pronouncements, the renewal of the marriage contract is not
prohibited. If it was made after the third declaration, the prohibition
is final.
Art. 82 -- The irrevocable divorce can be ended by the wife observing
the idda, being lawfully married to another man, and the marriage
consummated.
(1) Reopening of application under section 243(h), Immigration and Nationality Act, for submission of interrogatories to a Yugoslav consular officer will be denied because respondent has failed to meet the burden of establishing the necessity for the interrogatories or that the evidence is readily available since there is no showing of person before whom the interrogatories would be taken, that witness would voluntarily present himself to answer the interrogatories or authority exists in Yugoslavia to compel testimony, and there is no suggestion that letters rogatory are feasible or desirable.
(2) Respondent's request for examination of Government report containing background information on conditions in Yugoslavia should have been denied on a claim of privilege as provided in 8 CFR 242.17( c).
(3) Respondent has not established that because of her anti-Communist sentiments her efforts to resist return to Yugoslavia would subject her to physical persecution within the meaning of section 243(h) of the Act, if deported to that country.
(4) While respondent's economic prospects in Yugoslavia may not be good in view of her age (60), limited skills, anti-Communist sentiments, and reluctance to return to that country, subsistence at a low level does not establish physical persecution within section 243(h) of the Act even if such subsistence, in whole or in part, results from restrictions on employment opportunities imposed deliberately because of her race, religion, or political opinion; only total proscription of employment for such reasons suffices.
(5) Section 243(h) does not contemplate protection against any future vagaries in the political scene under which the likelihood of physical persecution may be greater than at the present time, since such future possibilities are not amenable to proof; only where the likelihood of physical persecution presently exists is withholding of deportation warranted.
CHARGE:
Warrant: Act of 1950 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer -- Nomimmigrant visitor for pleasure.
Respondent applied for withholding of her deportation to Yugoslavia
on the ground that she would be physically persecuted there. She
appeals from the special inquiry officer's denial of that application.
In our opinion respondent would not be subject to physical persecution
in Yugoslavia. Therefore we concur in the special inquiry officer's
action.
Respondent's authority to remain in this country as a visitor for
pleasure expired on June 8, 1959. She had entered at New York on June
17, 1957. Deportation proceedings commenced on November 20, 1959, with
service of the order to show cause. Initially the special inquiry
officer granted respondent voluntary departure with an alternate order
of deportation. A private bill in respondent's behalf was then pending
in Congress. Respondent did not appeal from the special inquiry
officer's decision.
Congress acted adversely on the private bill. Accordingly the
Service, on June 29, 1960, notified respondent that she had until August
3, 1960, to depart voluntarily from the United States. On August 2,
1960, respondent, pursuant to section 243(h) of the Immigration and
Nationality Act, filed her application for withholding of her
deportation to Yugoslavia, apparently anticipating that the Service
would direct her deportation to that country. /1/
The Service attempted to accord respondent a hearing upon her
application before a special inquiry officer under the regulations then
in effect. Respondent's counsel objected to her examination by anyone
except a hearing officer appointed pursuant to the provisions of the
Administrative Procedure Act. On advice of counsel, respondent declined
interrogation and offered no evidence. The special inquiry officer
recommended denial of the application. The regional commissioner on
January 17, 1961, entered an order of denial.
Respondent sought support for her position in the United States
District Court for the Southern District of New York. The court,
however, ruled adversely to respondent. On June 4, 1962, the Court of
Appeals affirmed that judgment, per curiam, on the lower court's
opinion.
After the regional commissioner denied respondent's section 243(h)
application, the Service tried to obtain a Yugoslav travel document for
respondent. Respondent declined to appear at the Yugoslav consulate for
a personal interview requested by a consular officer. At the Service's
request, however, respondent appeared with her counsel at the Service's
local office. A Yugoslav consular officer also appeared. No prior
arrangement had been made with respondent for interview by, or in the
presence of, a Yugoslav official.
Respondent says that the immigration officer, at the request of the
Yugoslav official, inquired why respondent had declined to appear at the
consulate voluntarily to renew her passport. Respondent, on advice of
counsel, declined to answer. Her attorney relates that prior to that
question he had strenuously objected to the procedure and that, after
respondent declined to answer the one and only question put to her, a
further heated exchange followed. The immigration officer then
terminated the interview.
In July of 1962 -- subsequent to the Court of Appeals' decision
affirming dismissal of respondent's complaint -- respondent moved to
reopen the administrative proceedings. The Service at first opposed
that motion but later withdrew its objections. The special inquiry
officer granted respondent's motion. After full hearing on the merits,
the special inquiry officer denied the application, entering the order
under review here. /2/
At the reopened hearing respondent renewed her objections to the
special inquiry officer's legal competency to preside. Her counsel
indicated that he again raised this point, which the courts had decided
against respondent, merely to preserve any rights or benefits respondent
might obtain in the event the Supreme Court in another matter involving
this issue rules to the contrary. Counsel has not pressed this point on
appeal. Therefore, we need not consider the effect of the Court of
Appeals' judgment in relation to these proceedings, nor the correctness
of the special inquiry officer's ruling that respondent's renewal of the
objection was frivolous.
Respondent requests that, if we are unable to rule favorably upon her
application on the record before us, we remand the case to the special
inquiry officer for submission of interrogatories to the Yugoslav
consular officer who attempted to interview respondent in connection
with her passport application and for production by the Service of
certain reports in its possession covering general conditions in
Yugoslavia. Although we believe we could dispose of this case without
reaching the procedural points raised by respondent, we shall discuss
them because of their importance for other proceedings.
Respondent has prepared written interrogatories directed to the
Yugoslav consular officer who was present at her interview at the
Service's New York office. The record shows that officer's address in
Belgrade. The interrogatories are not part of the record but were
marked for identification (Ex. R-3). We shall not, therefore, refer to
their specific contents but only to such matters as are developed in the
record. The record sufficiently reflects their purpose, however.
The special inquiry officer refused to authorize presentation of the
interrogatories to the Yugoslav official. He said that, because it is
doubtful whether the official would or could be requested to answer, the
proposed testimony could not be considered readily available. He also
said the interrogatories are exploratory and of doubtful materiality
here. We agree with the special inquiry officer's action, but the
denial may better be based on other grounds.
Respondent has the burden of showing the necessity of taking the
deposition of a prospective witness. /3/ Respondent's counsel said that
through the interrogatories he seeks to establish that the interview at
the Service office brought to the Yugoslav authorities' attention that
respondent seeks political refuge in this country, that she is not in
sympathy with the regime in Yugoslavia, that she fears the government
there, and that, out of fear, she refused to appear at the Yugoslav
consulate to answer the consular officer's questions. Even assuming that
the occurrences at the Service office were reported to the home
authorities and tended to create the impression respondent seeks to
establish, the proposed interrogatories are not necessary as evidence of
the probable attitude of the Yugoslav authorities toward respondent in
the event of her deportation to Yugoslavia. We may concede on the basis
of the evidence of record that that attitude is apt to be hostile.
It is possible the Yugoslav authorities are not aware of the judicial
proceedings in respondent's behalf, although we consider such
unawareness doubtful. Yet, apart from the judicial proceedings and the
interview in question, the record shows respondent's long absence from
Yugoslavia, her one brief contact with the consulate in 1958 for renewal
of her passport, her failure in 1961 to respond to the consulate's
invitation for an interview, and the consulate's awareness that
respondent is under deportation proceedings here. It is obvious on
these facts alone, therefore, the Yugoslav authorities are aware
respondent is resisting returning to that country. Without events at
the Service's office, they might not now be as aware of respondent's
reasons for refusing to contact the consulate -- assuming those events
were reported to them. If respondent were returned to the jurisdiction
of those authorities, however, they could by interrogation and
investigation easily ascertain her reasons for resistance.
Thus, even if the Yugoslav consular officer responded to the
interrogatories, and respondent's expectations were met, the evidence,
for our purposes, would be largely cumulative. Such evidence might at
best serve to bring into sharper focus respondent's relationship with
the Yugoslav authorities. Any corroborative value it might have for
other evidence of record, would be slight, however. Moreover, for
reasons which we shall develop later, we do not believe that the events
involving the consular officer unduly prejudiced respondent with the
Yugoslav authorities insofar as likelihood of physical persecution is
concerned.
Thus respondent has failed to discharge her burden of showing the
necessity for the interrogatories. For that reason alone they should
not be authorized. Because the situation is somewhat unusual and our
reasons for denying respondent's request may be important in other
proceedings, however, we shall refer to various additional
justifications for denial.
As the special inquiry officer has pointed out, the regulations for
proceedings under section 243(h) of the Immigration and Nationality Act
authorize respondent to submit such evidence as is readily available.
/4/ In requesting presentation of interrogatories to the prospective
witness, the burden is upon respondent to show the witness will present
himself voluntarily to answer the interrogatories, or, if not, an
authority in Yugoslavia to compel testimony. /5/ Respondent also should
show the person before whom the interrogatories would be taken. She has
done none of these. Although her counsel, in supporting the request,
mentioned that permission to take interrogatories have been addressed to
consuls in various parts of the world, he suggested no procedure for the
interrogatories here. The Federal Rules of Civil Procedure provide a
method for taking depositions in a foreign country which we might adopt.
/6/ Our consular officers qualify as persons before whom such
depositions may be taken.
Respondent has not shown, however, that the Yugoslav government
permits our consular officers to take depositions -- particularly when
the prospective witness is not only a Yugoslav national but a government
official -- or whether any consular convention between this country and
Yugoslavia covers such a situation. /7/
Moreover, in Branyan v. Koninklijke Luchtvaart Maatschappij the
Department of State acknowledged that letters rogatory rather than
notice to a consular officer or a commission provide the only feasible
means of obtaining the testimony of government employees and the
production of official records. /8/ Although the information sought in
Branyan was voluminous, technical, and complex -- involving
investigation of an airplane crash -- the principle appears equally
applicable here. Consular officers would naturally be reluctant to take
testimony from officials of the host country, particularly in a matter
which might be sensitive to the host government. Respondent does not
even suggest that letters rogatory are feasible or desirable here.
Finally, respondent seeks to obtain what would in effect be
admissions against interest by a Yugoslav official. If that official
were willing to make any statement at all (and assuming that a suitable
method for taking the statement could be found) the possibility of
obtaining probative evidence favorable to respondent's cause is remote.
/9/
Respondent refers to administrative proceedings before the Service in
the case of a certain Yugoslav national. Those proceedings have been
cited in judicial decisions. /10/ In reaching its decision in that
case, the Service relied upon certain reports obtained through various
official sources. Those reports contained background information on
conditions in Yugoslavia. Respondent requests that the reports be made
available for her examination.
The special inquiry officer denied this request on the ground that
there is no showing that the information is sufficiently current and
relevant to the particular facts and circumstances here to justify its
production, and on the further ground that respondent's request appears
to be a fishing expedition. The special inquiry officer also mentioned
-- apparently as an additional reason for not directing production of
the report -- that some of the information may be confidential. He did
not, however, specifically assign any claim of privilege to the
documents. The trial attorney objected to production of the reports but
did not specifically raise any claim of privilege.
Although we believe the special inquiry officer's denial of this
request should have been based upon an assertion that the information is
privileged under the regulations, we shall not disturb his ruling. /11/
We are familiar with the information which respondent seeks to examine.
In our opinion, the regulations protect it from disclosure.
We also believe the information would not materially assist
respondent's case. The burden upon respondent is heavy, however.
Evidence having a direct bearing upon an application for section 243(h)
relief is difficult to obtain. In proceedings under section 243(h),
therefore, we would be inclined to be liberal in determining the
reasonableness and propriety of a request to examine information in the
possession of the Government, if that information were nonprivileged.
Respondent is a national of Yugoslavia of German extraction. Her
birthplace was formerly in Austria. Now, however, it is in Yugoslavia.
Respondent is 60 years old, married but separated.
Respondent completed eight years of elementary schooling in her
homeland. She lived in this country from 1920 to 1926. She then
returned to Yugoslavia where she married that same year. She and her
husband separated in 1951. In Yugoslavia respondent worked on land
belonging to herself or her family and did housework. She has worked as
a housekeeper in this country.
Respondent's husband lives in Yugoslavia. She has a son and two
daughters. One daughter lives in Yugoslavia. The son and other
daughter live in Germany. In this country respondent has two sisters
and a brother.
Respondent testified that she and members of her family favored
reestablishment of the Royal Government after World War II. She says
they were known to be opposed to communism. Apparently she and her
family were relatively large landholders.
In 1942 respondent's husband was arrested by the partisans and almost
shot, but he escaped. He spent most of the war in Italian and German
camps. Respondent's sister and brother-in-law were also sentenced to
death by the partisans, but escaped. One of respondent's daughters, who
was told the partisans planned to kill her, had to flee to Italy.
Respondent's mother left Yugoslavia in 1955 and went to Austria,
where she died about a year later. Upon her death the Yugoslav
government confiscated her property. About 1950 respondent had also
lost a large piece of land and a house. She owned this property with
her husband. Respondent's testimony is not too clear, but it appears
the government took for some special purpose considerable property where
her land was located. Respondent received no compensation for her or
her mother's land but her husband received a piece of property in
exchange for his half of the property which he and respondent owned.
Respondent's contention that she will be physically persecuted in
Yugoslavia rests generally upon her testimony that she and her family
are known as anti-Communists and that she would now be in even greater
disfavor with the Yugoslav authorities because of her unauthorized
absence from that country and her refusal to return. She points to the
Communists harassment of herself and members of her family through
threats of, or attempts at, violence and by confiscation of her property
and her mother's property without compensation. Respondent also
believes that, because she has lost her farm land, she would be unable
to support herself in Yugoslavia. She says no individual in Yugoslavia
would employ her because there is no private work and the government
would not want her.
Respondent's testimony, at best, shows that she encountered
socioeconomic difficulties in Yugoslavia because she was known not to be
sympathetic toward the Communist regime. She never suffered any actual
physical persecution. We do not believe her position would be
appreciably worse if she were to return there.
The threats of bodily harm and attempts at physical violence which
respondent says were directed against members of her family, occurred
during the war. Partisans made them. Respondent testified vaguely
concerning the reasons for the partisans' actions. Her testimony
suggests certain possibilities, however. The partisans may have
considered respondent's family either was not supporting them
sufficiently or represented actual opposition. Respondent indicates she
and her family favored King Peter. The partisans may also have been
opposed to respondent's family because of their ethnic origin, or their
holdings of land. In any event, the wartime occurrences do not indicate
any active opposition to communism which might now be apt to lead to
hostile treatment of respondent at the hands of the Yugoslav
authorities. Moreover, the past actions of those authorities in
confiscating land belonging to respondent and her mother would also be
unlikely to cause independently any new reprisals against respondent or
to aggravate seriously any harsh treatment arising from other causes.
Respondent's testimony giving the reasons underlying the taking of
her land is also vague. Apparently the government wanted at least part
of it for some specific public purpose. Respondent believes she was not
compensated because of her anti-Communist record, but such loss, even
though severe economically, did not amount to physical persecution.
Respondent's age and limited skills would doubtless restrict her
employment opportunities in Yugoslavia. The authorities there might
intentionally further restrict respondent's employment opportunities
because of the matters to which she has testified, including her
attempts to avoid returning to her homeland. We doubt, however, that
respondent's fears that in Yugoslavia she would be totally without any
means of support would be realized. Her economic prospects would not be
good, but subsistence at a low level does not meet the statutory
standard for physical persecution, even if such subsistence, in whole or
in part, results from restrictions on employment opportunities imposed
deliberately because of the individual's race, religion, or political
opinion. Only total proscription of employment for such reasons
suffices. /12/ Respondent has not offered any evidence to corroborate
her statement that the authorities would not want her because they know
she is against them and would not care for her -- how she lives, and
what she does, or if she dies.
Respondent says that if deported to Yugoslavia, she would be taken
into custody, given a hearing, put in prison and maybe beaten up. She
says she will have no freedom in Yugoslavia.
We believe respondent would probably be questioned by the Yugoslav
authorities if she were returned to her homeland. Possibly she would be
confined during such examination. We believe any such confinement would
be relatively brief, however. We see nothing in the record which
indicates any likelihood of a prolonged investigation. Contrary to
respondent's expectations, we also see little or no likelihood
respondent would be imprisoned as a result of investigation. If by any
chance respondent were imprisoned, we believe confinement would be for a
relatively brief period of time. There are no circumstances in this
record which indicate otherwise. Certainly, no reason appears for
believing that respondent would be subject to imprisonment so prolonged
or under such severe conditions as to constitute physical persecution.
Current evidence of respondent's attitude toward the Yugoslav
authorities is reflected primarily in her reluctance to return to her
country. The record, however, contains nothing to distinguish her case
from the numerous cases of Yugoslav nationals who have attempted
strenuously to remain in this country rather than return to Yugoslavia.
Respondent says that the incident which occurred in the presence of the
Yugoslav consul at the Service office is the worst thing that could
happen to her in her relations with the Yugoslav authorities. She based
her motion to reopen these proceedings upon that incident. We believe
she has exaggerated its importance. The most favorable inference in her
behalf that we can draw is some emphasis of her reluctance to be
interviewed by a Yugoslav consular officer and to participate in any
steps designed to enable this country to return her to Yugoslavia. The
consulate, of course, was aware of such reluctance. The attempted
interview proposed to overcome it.
Yugoslav authorities may pay some special attention to respondent's
role at the attempted interview, if respondent is returned to Yugoslavia
and subjected to interrogation or investigation. Respondent, therefore,
has cause to be concerned. We do not believe she need anticipate actual
physical persecution, however. We doubt that the Yugoslav authorities
would take such a severe view of the matter. Thus the incident is by no
means dispositive of the issue here.
We believe respondent while testifying had in mind primarily the
harsh conditions in her homeland immediately following World War II.
Political restrictive measures against individuals have relaxed
considerably in Yugoslavia, even since respondent left there in 1957.
In the light of such current conditions as we may officially notice, and
on the basis of respondent's own circumstances as shown in the record,
we perceive no valid grounds for anticipating respondent would be
physically persecuted if deported to Yugoslavia. Considering
respondent's case as a whole, the Yugoslav authorities are at most
likely to subject respondent to some form of social and economic
sanctions. Respondent's individual freedom may even be severely limited
in numerous ways short of actual incarceration. Section 243(h) does not
protect against such sanctions and restrictions, however.
Respondent has submitted several pieces of documentary evidence in
the form of a book, reports, congressional correspondence, articles from
a magazine and a Croatian newspaper, and newspaper clippings. This
evidence bears upon conditions in Yugoslavia. Some of this material
traces events during World War II, the transition to Communist control,
and conditions in Yugoslavia in the period immediately following World
War II. Other material is more current. The most recent information of
any substance covers events approximately through 1961.
This material serves mainly two purposes. It provides background
information on living conditions in Yugoslavia under the Communist
regime which respondent would face if she were returned to that country.
/13/ We would, in any event, take official notice of much of this
information, but the material is helpful in calling our attention, and
the attention of the special inquiry officer, to such matters. More
importantly, the information serves as the basis for an argument which
would substantially enlarge the scope of section 243(h). Counsel
attempts to relate to respondent's particular situation general
statements found throughout some of the material which describe
difficulties of life in Yugoslavia. These difficulties confront
practically all persons who do not accept communist principles.
As we have seen, however, within our conception of the scope of
section 243(h) there is no reason to believe respondent would be subject
to physical persecution if returned to Yugoslavia. We could grant her
application, therefore, only if we interpreted section 243(h) to include
the case of almost any person who has escaped from Yugoslavia or who,
like respondent, has left legally but remained abroad because of
reluctance to return to a Communist regime. In other words, we would
have to so interpret section 243(h) that flight from Yugoslavia per se
renders a returnee subject to physical persecution. /14/
We are unwilling to so rule without a clear congressional expression
that physical persecution within the meaning of the statute is that
broad. Otherwise, such an interpretation would appear to run counter to
the legislative policy for refugees as expressed through P.L. 86 648.
/15/ That policy limits recognition of the status of "refugee-escapee'
even though the critical words in the definition of that term --
"persecution or fear of persecution on account of race, religion or
political opinion' -- are, we believe, susceptible of a broader
interpretation than the term "physical persecution' in section 243(h).
/16/ Clearly section 243(h) of the Act is to be applied selectively.
Among the material submitted by respondent, and accepted by the
special inquiry officer to the extent of particular passages selected by
respondent, is Milovan Djilas' book, The New Class (Ex. R-7). One of
those passages itself refutes part of respondent's argument. In
speaking of discrimination practiced by a Communist dictatorship, Djilas
says:
Persecution of democratic and socialist thought which is at
variance with that of the ruling obligarchy is fiercer and more
complete than persecution of the most reactionary followers of the
former regime. This is understandable: the last named are less
dangerous since they look to a past which has little likelihood of
returning and reconquering. /17/
By her own testimony respondent favors the old regime. It is
extremely doubtful, however, that even a Communist court would classify
her as a highly reactionary follower of that regime. Moreover, despite
respondent's experience in living outside of Yugoslavia, it is, if
anything, more doubtful that she would become in Yugoslavia such an
articulate spokesman for Western ideas and ideals as to become subject
to physical persecution. Nothing in the supporting material submitted
by respondent alters our opinion that respondent faces only the
difficulties ordinarily experienced by returness to Yugoslavia.
Respondent's testimony indicates that she expects long and harsh
imprisonment, beatings, and possibly even death. The report on the
European refugee situation prepared in 1959 by the Zellerbach
Commission, which respondent submitted in evidence, describes the usual
fate awaiting Yugoslav returnees. The commission's interviews with
numerous refugees indicate the possibility of imprisonment at hard labor
for a few months is not uncommon. More important, however, the returnee
will almost certainly be out of favor with the regime. Such lack of
favor will probably find practical expression in discrimination in such
things as employment and housing and perhaps even a greater curtailment
of individual freedom than the populace as a whole experiences.
The extent of such difficulties will, of course, vary greatly in the
individual case. There are many variables. Among these variables are
the individual characteristics of the returnee, the individual
characteristics of the local Communist officials with whom the returnee
comes into most intimate contact, and the overall political atmosphere
at the time any particular hardship or difficulty is imposed. Among
these factors we can here consider only respondent's individual
characteristics and the current conditions and political atmosphere in
Yugoslavia -- to the extent that we may officially notice such
conditions and atmosphere.
Respondent argues that section 243(h) contemplates as well protection
against any future vagaries in the political scene under which the
likelihood of physical persecution may be greater than at the present
time. We do not agree. Such future possibilities are not amenable to
proof and consequently their determination is not amendable to the
adjudicative process. Only where the likelihood of physical persecution
presently exists in a particular situation is withholding of deportation
warranted. We do not find such likelihood here.
ORDER: It is ordered that the appeal be and hereby is dismissed.
(1) Section 243(h) provides as follows:
The Attorney General is authorized to withhold deportation of
any alien within the United States to any country in which in his
opinion the alien would be subject to physical persecution and for
such period of time as he deems to be necessary for such reason.
(2) Between administrative hearings, the regulations had changed to
give jurisdiction in 243(h) proceedings to the special inquiry officer,
and, on appeal, to us.
(3) U.S. v. Ausmeier, 5 F.R.D. 395 (E.D. N.Y., 1946).
(4) 8 CFR 242.17(c).
(5) Cf. U.S. v. Ausmeier, supra /3/ .
(6) Rule 28(b) provides:
In a foreign country, depositions may be taken (1) on notice
before a person authorized to administer oaths in the place in
which the examination is held, either by the law thereof or by the
law of the United States, or (2) before a person commissioned by
the court, and a person so commissioned shall have the power by
virtue of his commission to administer any necessary oath and take
testimony, or (3) pursuant to a letter rogatory. A commission or
a letter rogatory shall be issued on application and notice and on
terms that are just and appropriate. It is not requisite to the
issuance of a commission or a letter rogatory that the taking of
the deposition in any other manner is impracticable or
inconvenient * * *.
(7) See generally 22 U.S.C. 841, 846, 1195, 1203.
(8) 13 F.R.D. 425 (S.D.N.Y., 1953).
(9) Compare Sang Ryup Park v. Barber, 107 F.Supp. 605 (N.D. Calif.,
1952) -- a somewhat analogous situation in reverse. There the Service
sought evidence of nonpersecution from an interested foreign official.
(10) Matter of Kale, A-9555532, April 23, 1958, discussed at length
in Dombrorskis v. Esperdy, 195 F.Supp. 488 (1961).
(11) 8 CFR 242.17(c) provides in part:
The determination under section 243(h) of the Act may be based
upon information not of record if, in the opinion of the special
inquiry officer or the Board, the disclosure of such information
would be prejudicial to the interests of the United States.
(12) Dunat v. Hurncy, 297 F.2d 744 (C.A. 3, 1962). Cf. Soric v.
Flagg, 303 F.2d 289 (C.A. 7, 1962).
(13) Included also is information on the plight of refugees from
Yugoslavia.
(14) We believe the dispute between the special inquiry officer and
respondent over the incident at the Service office as a "bootstrap
operation' involves essentially the special inquiry officer's reluctance
to rule that respondent's section 243(h) application and the incident
before the consular officer per se justify withholding of her
deportation. The effect of such factors should not be disregarded, but
neither is in and of itself conclusive.
(15) 74 Stat. 504, as amended 76 Stat. 124. The amendment removed
the original expiration date of July 1, 1962.
(16) The definition of "refugee-escapee' in section 15 of P.L.
85-316, 71 Stat. 643, was adopted by P.L. 86 648.
(17) At 144, 45.
Since a Moslem divorce obtained in absentia in Pakistan in accordance
with section 7 of the Muslim Family Laws Ordinance, 1961, Ordinance No.
VIII of 1961, by a native and citizen of Pakistan while living in
England, is recognized as valid in England for the purposes of a
subsequent marriage in that country, such subsequent marriage in England
to a U.S. citizen is a valid marriage for immigration purposes and
serves to confer nonquota status.
The case cames forward on appeal from the order of the
Officer-in-Charge, Frankfurt, Germany, dated March 2, 1964 denying the
visa petition on the ground that the petitioner's marriage to the
beneficiary is not considered valid because the beneficiary's divorce
from his first wife was not valid.
The file does not contain a Form I-130, petition to classify status
of aliens for issuance of immigrant visa. However, the facts are fully
set forth in the order of the Officer-in-Charge. The petitioner is a
native-born citizen of the United States, 25 years old. She seeks
nonquota status on behalf of the beneficiary, a native and citizen of
Pakistan, 33 years old. The parties were married on December 2, 1963,
in the Registrar Office of West Hartlepool, England. The petitioner had
never been married previously while the beneficiary has been married
once previously. The present visa petition was submitted on December
12, 1963.
The order of the Officer-in-Charge sets forth the facts in full
detail. The beneficiary was previously married to Majida Banu, a native
and citizen of Pakistan, in Jessore, Pakistan, on August 28, 1952 in
accordance with Moslem custom, both parties being of that faith. Two
children were born of that marriage and presently live in Pakistan with
their mother. The beneficiary was admitted at New York on June 27, 1958
as an exchange visitor destined to the Lima Memorial Hospital, Lima,
Ohio, where he was to receive training as an interne.
On October 10, 1962 the petitioner had filed a visa petition to
accord the beneficiary nonquota status under section 101(a)(27)(A) of
the Immigration and Nationality Act on the basis of a marriage ceremony
between the parties at Chicago, Illinois, on July 10, 1960. At that
time the beneficiary alleged that his first marriage had been terminated
in June 1959 when in accordance with Moslem custom he wrote his first
wife's father declaring his intention to be divorced and in addition to
this written declaration he stated that in April 1960 he made an oral
announcement of his divorce in Chicago, Illinois before a Pakistani
national, acquainted with both the beneficiary and his first wife. This
visa petition was denied on March 5, 1963 for the reason that the
petitioner's marriage to the beneficiary was not considered valid
because the beneficiary's divorce from his first wife was not valid
under the laws of the state in which he was present at the time the
divorce was obtained. On April 8, 1963 this Board, relying upon the
decisions in Matter of H , 6 I. & N. Dec. 470, Matter of M , 7 I. & N.
Dec. 556 and the case of Shikoh v. Murff, 257 F.2d 306 (2d Cir. 1958)
held that the attempted divorce, which was not secured in accordance
with the laws of the jurisdiction where the beneficiary then resided,
could not be regarded as valid and dismissed the appeal from the order
of the Officer-in-Charge.
The memorandum reflects that the beneficiary and the petitioner left
the United States on September 17, 1960 and presently reside in England
and are the parents of a son. After the decision of the Board on April
8, 1963, petitioner engaged an English legal firm as solicitor. The
latter in turn took counsel from Mr. Abbas, Barrister-at-Law in England
and advocate of the Supreme Court of Pakistan. Acting upon counsel's
advice, the beneficiary by registered letter dated April 24, 1963,
conveyed his intention of divorcing his first wife, Majida Banu, to the
Chairman of Shahbazpur Union Council in Pakistan and sent a registered
copy of the letter to his first wife on Arpil 30, 1963. On July 9, 1963
the beneficiary signed a declaration of divorce "before a Notary Public
in England which was legalized' in the office of the High Commissioner
for Pakistan in the United Kingdom. The solicitor, acting on behalf of
the beneficiary, is stated to have posted the declaration of divorce by
registered mail on July 16, 1963 to the Chairman of Shahbazpur Union
Council and on the same date is said to have posted by registered mail a
copy of the document to the Registrar at Nikah, Pakistan. This
procedure is stated by counsel to constitute a lawful divorce or "Talaq'
under the Muslim Family Laws Ordinance, 1961 of Pakistan. The affidavit
of Barrister Abbas dated September 10, 1963 is attached as Exhibit 2,
and contains enclosures setting out the declaration of the beneficiary,
and the note of divorce of July 1, 1963 to Majida Banu and the notice of
intention to divorce of April 24, 1963 to the Chairman of Shahbazpur
Union Council #9 in Pakistan and the other letters connected with the
matter.
There followed subsequent correspondence between the
Officer-in-Charge and the solicitor for the petitioner requesting
additional information in the nature of interrogatories regarding
various aspects of the Moslem divorce. On December 31, 1963 the
solicitor replied (Ex. 3) to the effect that the Registrar General of
England was satisfied with the validity of the beneficiary's divorce and
issued an authority to the Local Registrar in West Hartlepool to proceed
with the marriage ceremony; that the domicile of the beneficiary is
Pakistan and his country of residence at the moment England; that the
divorce was never before the Pakistan Court as there is no procedure
under the laws of Pakistan for court proceedings in respect to a
divorce. The solicitor further answered (Ex. 4) that it must be taken
for granted that the Registrar General of England was satisfied with the
divorce and cited a case in point concerning the validity and the
recognition of such a divorce under English Law. Additional information
is furnished by Barrister Abbas (Ex. 5) outlining additional reasons why
the divorce is valid in Pakistan and is recognized by the English
Courts, citing cases and also citing that no divorce can be granted in
the English Court of a "polygamous marriage.' This latter phrase is
indicated by counsel to apply to a marriage under a system which permits
polygamous marriage even though the marriage in question may be
monogamous. Mr. Abbas further indicated (Ex. 6) that the beneficiary
retained his domicile in Pakistan despite his temporary residence in the
United States and England, citing authorities, and further clarified his
statements so that the English Courts would not assume jurisdiction of a
potentially polygamous marriage which is permitted under the laws of a
foreign country, even though in fact there was only one marriage. Mr.
Abbas appeared to agree with the decision of this Board in regard to the
attempted divorce by the beneficiary in 1959 while residing in the
United States which was held to be ineffective because of the manner of
which it was procured.
By letter of June 5, 1963 to the American Consulate at Dacca, East
Pakistan, the beneficiary's first wife, Majida Banu, advised that the
beneficiary's notice of divorce of April 24, 1963 addressed to the
Chairman of the Shahbazpur Union Council has been received but claimed
that the notice of divorce was not effective under the provisions of
Muslim Family Laws Ordinance of Pakistan and that her position is that
she is still the lawful undivorced wife of the beneficiary (Ex. 8). The
beneficiary subsequently wrote that there had been no divorce; that the
divorce had not been done in accordance with Pakistan Law; that she did
not consent to the divorce; that the divorce is not recognized and that
the beneficiary irregularly sends money to her father for the benefit of
herself and her children (Ex. 9). The beneficiary's first wife also
enclosed a copy of a letter dated October 5, 1963 which had been sent by
her lawyer, an Advocate of the Dacca High Court, East Pakistan to
petitioner's solicitor to the effect that the so-called divorce in
question is illegal, void and inoperative under the present law of
Pakistan, namely the Muslim Family Laws Ordinance of 1961 with
amendments and that Majida Banu is still the lawful wife of the
beneficiary. It may be noted that this letter gives no legal citations
or authority.
No divorce decree issued by a court in Pakistan has been presented
allegedly because there is no court proceeding from which a decree can
emanate. This contention is backed up by the opinion of counsel who is
an Advocate of the High Court of East Pakistan and of the Supreme Court
of Pakistan and a Barrister at Law in England to the effect that the
divorce ceremony undertaken by the beneficiary is valid under section 7
of the Pakistani Family Laws Ordinance, 1961, Ordinance No. VIII of
1961. Such a divorce is therefore recognized as a matter of
international comity under English Law and by the same token would be
recognized as valid in the United States for immigration purposes. The
Officer-in-Charge, who apparently has not been able to reconcile the
conflicting claims of opposing counsel, concludes that doubt has been
cast upon the contention of the beneficiary that he was divorced and
denies the visa petition. It is believed that the matter should be
further explored.
The file contains a report dated January 23, 1964 from the
American-British Law Division of the Library of Congress, Washington,
D.C. setting out the text of the Pakistan Muslim Family Laws Ordinance
1961, Ordinance No. VIII of 1961 and citations which might be applicable
to the validity of a divorce under Pakistani and English Law (Ex. 7).
This report is helpful only in a general way and does not pretend to
represent an opinion of the law library but constitutes solely
references to legal sources dealing with the general subject matter of
the inquiry. The report sets out the provisions of section 7(1) of the
Muslim Family Laws Ordinance, 1961 which provides that any man who
wishes to divorce his wife shall, as soon as may be after the
pronouncement of talaq in any form whatsoever, give the Chairman /1/
notice in writing of his having done so, and shall supply a copy thereof
to the wife. Section 7(3) states that save as provided in sub-section
(5) /2/ a talaq unless revoked earlier, expressly or otherwise, shall
not be effective until the expiration of ninety days from the day on
which notice under sub-section (1) is delivered to the Chairman.
The report from the Library of Congress goes on to state with the
respect to the recognition of foreign divorces under English Law, the
English courts will recognize a foreign decree of divorce or nullity
where the decree, though made in a country in which the parties are not
domiciled, is valid in the country of the parties' domicil. /3/ It
quotes Halsbury's Laws of England, (3rd ed., London, 1954), Volume 7,
pages 113-15, to the effect that a divorce pronounced by the court of
the country of the domicil is recognized as valid in England, (subject
to very limited qualifications which are not material herein). The
English courts will recognize as having extraterritorial validity any
decree of divorce which is also recognized as valid by the courts of the
country of the domicil, whether those courts have themselves pronounced
the decree or not. Reference must always be made to the law of the
domicil at the time of the decree, wherever the decree may have been
obtained and, provided that the courts of the country of the domicil
recognize its validity, the English courts will give effect to it. The
decree pronounced must be in accordance with the laws of that country.
Such a decree, once pronounced, is in the nature of a judgment in rem
because it affects status.
In a case involving a prior marriage in the United States which was
terminated by the first wife's procurance of a Mexican in absentia
divorce while both spouses were residents in the United States, and
subsequently the husband married a German wife in Germany which
recognized such divorce decrees, the Attorney General applied the
generally accepted rule that the validity of a marriage is governed by
the law of the place of celebration. /4/ The case of Shikoh v. Murff,
/5/ involved a Pakistani who attempted to obtain a Moslem divorce from
the head of the Islamic Mission of America at Brooklyn, New York, while
residing in the State of New York as a student, and thereafter
registering such copies of the "certificate of divorce' with the
Solicitor General of Pakistan at New York and sending copies to the
appellant's wife by the consulate general. The court held that such a
divorce, while it might be valid in Pakistan, was not valid in New York
because it is not obtained in accordance with the laws of that state.
The court distinguished cases sustaining the validity of foreign
divorces obtained by both parties who were physically present within the
United States since the divorce was actually granted in the foreign
jurisdiction in which the parties were domiciled. /6/
The instant case is parallel to that of the case of Matter of P , 4
I. & N. Dec. 610, where Germany, the place of celebration of the
marriage, recognized a Mexican in absentia divorce decree which is
generally not recognized in the United States. /7/ English Law as is
set forth by the report from the Library of Congress, apparently
recognizes Moslem divorce decrees obtained in accordance with the law of
that jurisdiction where the domicil remains in Pakistan. Apparently the
Registrar General, Somerset House of London, was contacted by the
solicitor for the petitioner with regard to the validity of the
beneficiary's divorce and the Registrar General was ultimately satisfied
as to such validity and issued an authority to the local registrar to
proceed with the ceremony of the marriage of the petitioner and the
beneficiary. Counsel for the petitioner has cited law in cases which
are persuasive that the Moslem divorce was obtained in accordance with
Section 7 of the Muslim Family Laws Ordinance, 1961, Ordinance No. VIII
of 1961 and is valid.
The communication from counsel for the first wife sets forth no
citations of law to support his contention that the divorce was not
valid under Moslem or English law. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the visa
petition be approved for nonquota status on behalf of the beneficiary.
(1) The file contains a copy of the Muslim Family Laws Ordinance,
1961 and defines the term "Chairman' in section 2(b) to mean the
Chairman of the Union Council or a person appointed by the Central or a
Provincial Government, or by an officer authorized in that behalf by any
such government, to discharge the functions of Chairman under this
Ordinance.
(2) Sub-section 5 provides that if the wife be pregnant at the time
talaq is pronounced, talaq shall not be effective until the period
mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
(3) Tolstoy, The Law and Practice of Divorce (London, 1963), page 20.
(4) Matter of P , 4 I. & N. Dec. 610 (A.G., 1952).
(5) 257 F.2d 306 (2d Cir. 1958).
(6) Citing at page 309 the cases of Weil v. Weil, 26 N.Y.S.2d 467;
Oetten v. Oetten, 94 N.Y.S.2d 168; Hansen v. Hansen, 8 N.Y.S.2d 655.
(7) Cf. Matter of B , 1 I. & N. Dec. 677, where a German national,
who had a substantial claim to German domicil obtained a divorce in
Germany while residing in the United States, the alien having executed a
power of attorney, which was held valid upon the principle of
international comity and because there was no state in this country
interested in the respondent's matrimonial status.
Since there is no common-law marriage under the law of Hungary, no
relationship was created between petitioner and beneficiary by reason of
the latter's extra-marital cohabitation with petitioner's mother from
1944 until their marriage in 1960. A valid stepparent-stepchild
relationship was not created until the formal marriage in 1960 at which
time petitioner was 28 years old. Consequently, petitioner is not a
stepchild within section 101(b)(1)(B), Immigration and Nationality Act,
as amended, and is ineligible to petition for second preference quota
status on behalf of beneficiary as her stepfather.
The case comes forward on appeal from the order of the District
Director, New York District, dated November 22, 1963 affirming the
original order of denial dated March 20, 1963 and certifying the case to
this Board.
The petitioner, a native of Hungary and a naturalized citizen of the
United States, 32 years old, female, seeks preference quota status under
section 203(a)(2) of the Immigration and Nationality Act on behalf of
her stepfather, a native and citizen of Hungary, 70 years old, male. In
support of the visa petition there was submitted a marriage certificate
showing that the petitioner's mother and her stepfather were married at
Budapest, Hungary on June 9, 1960. According to our prior order of May
24, 1963, the District Director, New York District, denied the visa
petition on the ground that the beneficiary cannot be considered the
petitioner's father or parent as defined in section 101(b)(2) of the Act
because the petitioner was 28 years of age when her mother and the
beneficiary were married in 1960, thereby creating the status of
stepparent and stepchild; as a consequence thereof, she is not a child
as defined in section 101(b)( 1)(B) of the Act. /1/
At oral argument on May 9, 1963 the petitioner's representative, her
husband, asserted that the beneficiary and the mother of the petitioner
lived together as husband and wife from 1944 until their marriage at
Budapest, Hungary on June 9, 1960. He alleged that under Hungarian law
the relationship of the petitioner's mother and the beneficiary ripened
into the status of a common-law marriage after they had lived together
continuously for a period of one to five years. The case was remanded
in order to afford the petitioner an opportunity to establish that her
mother and her stepfather acquired the status of common-law husband and
wife under the law of Hungary in 1944 when the petitioner would have
been 13 years of age and that a valid relationship of stepparent and
stepchild under the immigration laws was created.
The memorandum of the District Director supporting the decision of
denial of November 22, 1963 indicates that petitioner was advised to
submit any evidence possible that would be pertinent to the issue of
when she acquired the status of stepchild. She submitted a letter from
a lawyer in Budapest, Hungary stating in effect that if two persons had
been living together in a common-law relationship and subsequently
entered into a valid marriage, their commonly owned property is disposed
of as if they had been married from the beginning of their common-law
relationship. This letter cited a ruling of the Supreme Court of the
Hungarian People's Republic published in August 1962. In his letter the
Hungarian lawyer states that the court decision sets forth that where
parties have lived together and have acquired commonly owned property
during the period of living together, and only in cases where the
parties have ultimately married and their common-law relationship has
grown into marriage, will the unity and continuity of their entire
economic situation warrant the application of the rules relating to
married couples. The District Director concluded that nowhere was it
set forth that the Hungarian court sought to apply this legal fiction
generally to all common-law relationships which ultimately ripened into
a legal marriage nor had the court ruled that the subsequent marriage of
the parties could operate retroactively to create a legal relationship
nunc pro tunc from the date of its very inception; to the contrary, if
a true common-law marriage had been entered into, there would be no
necessity for a subsequent legal marriage. The District Director
concluded that the evidence submitted pertinent to the issue of when the
petitioner acquired the status of stepchild is not sufficient to warrant
a change in the original order of denial and affirmed the original order
of denial dated March 20, 1963.
At oral argument on February 5, 1964 the petitioner's husband
submitted two translated documents. The first document dated December
6, 1963 at Budapest, Hungary from Dr. Laszlogree to the effect that the
petitioner's mother, a widow, and her daughter, the petitioner, up to
the date of the marriage of the latter, lived in joint housekeeping with
the second husband of the widow, Lajos Schaad, in an apartment at a
certain address in Budapest starting from the year 1944 and that they
are continuing to live together. The second document submitted is a
certificate to substantiate the report of change of permanent residence
by Hungarian male citizens issued by the Hungarian police on August 1,
1945 and shows that the beneficiary and his landlord, Mrs. Kalman Jarfas
(the petitioner's mother) reside at the same address in Budapest,
Hungary. The Board explained to the petitioner's husband that he should
have submitted the documents to the field office. In view of the
disposition which we made of this case, it is believed that a remand to
consider the newly offered evidence is unnecessary.
Under date of May 8, 1964 a report entitled "Legal Aspects of
Extra-Marital Cohabitation in the Hungarian People's Republic,' prepared
by Dr. William Solyom-Fekete, European Law Division, Library of
Congress, was received. The report indicates that the Hungarian
Marriage Law was adopted in 1894 /2/ and remained in force with
amendments until 1952. This law does not mention common-law marriage
and no other statute enacted prior to World War II contained any
provision on this subject. Therefore, the decisions of the Royal Curia
(Supreme Court of Hungary) in which the customary law of the country was
expressed, are the only source from which pertinent information may be
gathered. On May 7, 1906 the Royal Curia held that according to the
continuous judicial practice in Hungary, extra-marital cohabitation of a
man and woman, as a sexual relation contrary to the moral opinion of the
community, cannot give rise to a civil law claim enforceable before the
courts.
The Marriage Law of 1894 was repealed in 1952 when the legislature
enacted the Law on Domestic Relations. /3/ This law is still in force
today and although this Law on Domestic Relations includes no reference
to common-law marriage, its commentators usually do discuss its aspects,
especially from the viewpoint of property relations.
In 1959 the Civil Code of the Hungarian People's Republic was enacted
which entered into force on May 1, 1960. /4/ This statute has
completely changed the legal system of Hungary which until then was
unique in continental Europe. The edict implementing the Civil Code /5/
not only repealed all statutes pertaining to civil law, but also such
court decisions. Section 5 of this edict even prohibited the
"interpretation of the provisions of the Civil Code according to the
legal principles formulated in the practice of the judiciary previous to
the entering into force of the Code.'
Although the Law on Domestic Relations is not a part of the Civil
Code, the courts apply the same rule in other fields of the law, and
regard all earlier court decisions as superseded or repealed, and the
Supreme Court revised even its own opinions on the subject of domestic
relations, repealing or amending some of them in 1961. Consequently,
the decision of the Royal Curia handed down on April 7, 1906 may not be
regarded as a valid ruling. To facilitate the understanding of the
distinction between a valid marriage and extra-marital cohabitation, the
parties thereto will be called "spouses' (hazastars) and "cohabitants'
(elettars, literally translated: life-partners), respectively.
The report then sets forth several cases where the cohabitant is
recognized in regulations dealing with tenancies, widow's pensions, the
inclusion in criminal law of the cohabitant under the concept of
relatives although distinguishing it where the statute simply mentions
the term "spouse,' court suits in forma pauperis, and in matters of
inheritance.
The Supreme Court reversed the trend in lower court decisions which
were inclined to equate the property relationship of cohabitants with
those of spouses by using the analogy of conjugal community property,
holding that although the relation of persons living in extra-marital
cohabitation cannot be regarded as immoral, or as one negating rights,
and the socialist law protects the cohabitant, and assures certain
rights, usually financial benefits, nevertheless, the legal and other
distinctions between persons living in a marriage and in extra-marital
cohabitation must be stressed. In a similar question the Supreme Court
held that according to Section 27 of the Csjt. (Law on Domestic
Relations) conjugal community of property may only occur between
spouses; between parties to an extra-marital cohabitation, only a
community of acquisition may occur. Other cases were cited which dealt
with joint acquisitions by cohabitants living together in an
extra-marital cohabitation.
After the enactment of the Civil Code the principles of judicial
practice as expressed in earlier court decisions were no longer
applicable and the Supreme Court rendered a series of decisions and
opinions in which the Court rephrased or rewrote some of the more
important problems of the court in order to bring the solution of these
problems in line with the Civil Code and the principles laid down
therein. In the course of this work the Supreme Court restated its
position on the general attitude and on the property relations arising
from extra-marital cohabitation by stating that section 51 of the
Hungarian Constitution provides that the Hungarian People's Republic
protects the institution of marriage and family. It recognized
cohabitation or extra-marital relationships which continued for long
periods as obtaining certain rights arising from such extra-marital
cohabitation. These decrees recognized the similar ancillary rights
mentioned previously of the right of the cohabitant of a deceased tenant
to continue with the tenancy of a dwelling and regarding the cohabitant
as a relative in regard to the application of the Ptk. (Civil Code).
It stated however that the protection of interests in certain relations
identical to that of spouses however does not mean completeness and
identity. It was pointed out in this respect that the Hungarian legal
system does not guarantee the right of the cohabitant to alimony, to
bear the name of her cohabitant, and to intestate inheritance, and it
does not regard the relation of cohabitants as having identical merit as
marriage.
The Supreme Court expressed its opinion several times to the effect
that the legal and other distinctions existing in principle between
spouses and parties to an extra-marital cohabitation must be stressed,
therefore, the relation of cohabitants may not be regarded as legally
identical with the relation arising from a marriage. It was further
stated that the application of the rules of Chapter 4 of the Law on
Domestic Relations to the settlement of property relations between
cohabitants which arose during their cohabitation may only take place if
the parties subsequently contracted a marriage and, thus, their relation
as cohabitants grew into a marriage, when the unity and continuity of
their joint husbandry justifies the application of the rules pertinent
to spouses to the liquidation of their entire legal relationship. If
this is not the case, cohabitants may not invoke the application of the
measures of family law applicable to spouses to the settlement of their
property relations, but the rules of civil law shall apply to the
adjudication of mutual claims arising from their cohabitation.
In summary, the report from the Library of Congress indicates that
while the parties to an extra-marital relationship or cohabitation do
have some recognition for various collateral purposes incidental to the
relationship, the distinction between a spouse and a cohabitant is
firmly drawn in the Hungarian Law between persons living in a marital
status and those in extra-marital cohabitation. The protection of
interests in certain extra-marital relations, or cohabitants, as opposed
to that of spouses, does not mean completeness of identity. The
Hungarian legal system does not guarantee the right of the cohabitant to
alimony, to bear the name of her cohabitant, and to intestate
inheritance. It is concluded that although the extra-marital
relationship of cohabitants is recognized for some purposes under
Hungarian laws, it is not equivalent to the relationship existing
between legally married spouses.
In the instant case, it is claimed that an extra-marital relationship
arose in 1944 but that the parties actually did not become legally
married until 1960. We think it proper to conclude that until there was
a ceremonial marriage in 1960 between the beneficiary and the
petitioner's mother, there was no valid relationship of stepparent and
stepchild between the two. During the period the extra-marital
relationship existed, no relationship of stepparent and stepchild was
created between the beneficiary and the petitioner. It is concluded
that the petitioner did not become a stepchild until 1960 when she was
28 years of age and that under the immigration laws, the relationship of
stepchild and stepparent was not created within the limitation of 18
years of age. The petitioner is not eligible to file a petition for her
stepparent.
ORDER: It is ordered that the order of the District Director, New
York District, dated November 22, 1963, affirming the order of denial
dated March 20, 1963, be and the same is hereby approved.
(1) Section 101(b)(1)(B) defines the term "child' to include a
stepchild provided the child had not reached the age of 18 years at the
time the marriage creating the status of stepchild occurred.
(2) Law No. XXXI of 1894.
(3) Law No. IV of 1952 on Marriage, Family, and Guardianship.
(4) Law No. IV of 1959.
(5) Edict No. 11 of 1960.
(1) Conviction of voluntary manslaughter in violation of section 9-2, chapter 38, Illinois Revised Statutes, is conviction of a crime involving moral turpitude.
(2) The return to the United States of respondent, a lawful permanent resident, following a month's vacation in Mexico constitutes an entry under section 101(a)(13), Immigration and Nationality Act, upon which to predicate a ground of deportation. Rosenberg v. Fleuti, 374 U.S. 449, distinguished.
CHARGES:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) -- Convicted of crime committed within five years after entry and confined for a year or more, to wit: voluntary manslaughter.
Lodged: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of crime committed within five years after entry and sentenced
to confinement for a year or more, to wit: voluntary manslaughter.
Respondent is 42 years old, married, male, a native and citizen of
Mexico. He last entered the United States at Laredo, Texas, on or about
July 1961. The special inquiry officer found him deportable on the
lodged charge, and not eligible for any form of discretionary relief,
and certified the case to the Board for final decision. The special
inquiry officer's order and decision will be approved.
Respondent was admitted to the United States for permanent residence
in 1956. He departed on three occasions between 1956 and 1962, each
time returning to Mexico for a one-month visit with his family in
Tampico. He testified that he went to Mexico in 1958, 1960, and 1961.
He did not remain longer than one month, because he did not want to lose
his job in Chicago.
Respondent was convicted in the Criminal Court of Cook County,
Illinois, on February 28, 1963, for the offense of voluntary
manslaughter in violation of Chapter 38, Section 9-2, of the Illinois
Revised Statutes. He was sentenced to confinement in the Illinois State
Penitentiary for a term of not less than one year and not more than 15
years. The record of his conviction is part of the record before us.
Respondent testified that he did not commit voluntary manslaughter but
that he was defending himself against someone seeking to kill him. He
believes that he in fact committed involuntary manslaughter. The
indictment returned against respondent by the grand jury contained three
counts: murder, manslaughter, and involuntary manslaughter. Respondent
plead guilty to having committed the crime of voluntary manslaughter,
and the court found him guilty of that crime in the manner and form as
charged in the indictment. This Board does not have the authority to
re-try criminal convictions. As found by the special inquiry officer,
the crime is conclusively established by the record of conviction, and
the Board is precluded from looking outside the record. The crime of
voluntary manslaughter is an offense involving moral turpitude.
Respondent raised the issue as to whether or not he had committed a
crime within five years after entry, in that he has resided in the
United States since his entry in 1956. The special inquiry officer
found that respondent made an entry when he returned from Mexico in July
1961, and we affirm this finding. In Rosenberg v. Fleuti, 374 U. S.
449, 10 L.ed.2d 1000, the Supreme Court found that the alien had not
made an "entry' as defined in section 101(a)(13) of the Immigration and
Nationality Act. /1/ We agree with the special inquiry officer that the
respondent's entry in July 1961, and also his entries following his 1958
and 1960 trips to Mexico constituted entries within the definition of
the statute. The instant case is distinguishable on its facts from
Fleuti for the following reasons: (1) Respondent's entry on each
occasion was made after a one-month vacation to Mexico, whereas Fleuti
went into Mexico and returned after "about a couple hours' to quote the
Supreme Court decision. A one-month vacation does not fall within the
Supreme Court references to the brief absence of one who "merely stepped
across an international border'. The court states, "One major factor
relevant to whether such intent can be inferred is of course that length
of time the alien is absent'. The length of the visit is, of course,
only one factor. Respondent intended to resume his residence in the
United States at the end of his vacation, but this intent alone
certainly does not preserve him from having made a departure and
reentry. He knowingly and intentionally departed from the United States
and remained outside this country for one month on three separate
occasions. (2) The Supreme Court referred in Fleuti to whether or not
it was necessary for an alien to obtain or present documents upon his
return to the United States. There was no showing that Fleuti had used
documents for his reentry. Respondent testified that he had presented
his "mica', referring to his Alien Registration Receipt Card, Form
I-151, upon his return from each of his three vacation trips. (3)
Respondent did not become deportable by the mere fact of his trip to
Mexico and his return. The Court was concerned in Fleuti with the
severity of an interpretation which placed the alien at the mercy of the
"chance' and with the "meaningless and irrational hazards of a strict
entry doctrine which resulted in making a resident alien deportable who
would not otherwise have been deportable'. Fleuti concededly was not
excludable as a psychopathic personality at the time of his 1952 entry,
according to the court. However, as the result of his 1956 departure to
Mexico and return, the Government contended that Fleuti was deportable
as an alien afflicted with psychopathic personality at the time of his
1956 return. In the case now before us, deportability is based upon the
conviction of respondent for a crime he committed following his return
from Mexico. It is the commission of the crime, rather than the reentry
which made him deportable. In the case of Fleuti, it was the departure
and return which completed the formula by which he became deportable.
This distinction, made by the special inquiry officer, is, we think, an
important variation from the facts in Fleuti. For the above reasons, we
find that respondent made an entry from a foreign port or country under
section 101(a)(13) of the Immigration and Nationality Act when he
returned from Mexico in 1961.
Respondent is deportable on the lodged charge for having committed a
crime involving moral turpitude within five years after entry for which
he was convicted and sentenced to imprisonment for a year or more. The
special inquiry officer found correctly that respondent is precluded
from establishing good moral character under section 101(f)(3) and 101(
f)(7) of the Immigration and Nationality Act, and is not eligible for
any form of discretionary relief. He has designated Mexico as the
country to which his deportation should be directed. The special
inquiry officer's order of January 30, 1964, will be approved.
ORDER: It is ordered that no change be made in the special inquiry
officer's order of January 30, 1964.
(1) Section 101(a)(13), Immigration and Nationality Act: The term
"entry' means any coming of an alien into the United States, from a
foreign port or place or from an outlying possession, whether
voluntarily or otherwise, except that an alien having a lawful permanent
residence in the United States shall not be regarded as making an entry
into the United States for the purposes of the immigration laws if the
alien proves to the satisfaction of the Attorney General that his
departure to a foreign port or place or to an outlying possession was
not intended or reasonably to be expected by him or his presence in a
foreign port or place or in an outlying possession was not voluntary:
Provided, That no person whose departure from the United States was
occasioned by deportation proceedings, extradition, or other legal
process shall be held to be entitled to such exception.
Respondent's conviction of obtaining goods under false pretenses in violation of section 8698, General Statutes of Connecticut, 1949 Revision (C.G.S.A. section 53-362), is not a conviction of a crime involving moral turpitude.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) -- Two
crimes after entry: breaking and entering (three counts) and larceny
(three counts) (1957); obtaining goods under false pretenses (1958).
This is an appeal by the trial attorney from the decision of the
special inquiry officer holding that the respondent was not deportable
upon the ground stated above. The question presented on the appeal is
whether respondent's conviction for obtaining goods under false
pretenses is a crime involving moral turpitude. The appeal will be
dismissed.
The respondent, a 38-year-old single male, native and citizen of
Canada, was admitted to the United States for permanent residence on
October 8, 1942, he last entered the United States about the summer of
1947 after a brief visit to Canada. His deportation is sought on the
ground that he had been convicted of two crimes after entry. In 1957 he
was convicted on three counts of breaking and entering and on three
counts of larceny, all, the special inquiry officer found, arising out
of a single scheme. Respondent was fined $72.
On June 23, 1958 respondent was convicted at Manchester, Connecticut
for obtaining goods under false pretenses in violation of section 8698,
General Statutes of Connecticut, 1949 Revision (C.G.S.A., Section
53-362). The special inquiry officer held that the crime defined did
not involve moral turpitude because intent to defraud was not an
element; the Service contends the special inquiry officer is in error.
Section 8698, General Statutes, reads as follows: Any person who
knowingly makes or causes to be made, either directly or indirectly or
through any agency, any false statement in writing, with intent that it
shall be relied upon, concerning the financial condition or means or
ability to pay of himself or of any other person for whom he is acting
or of any firm or corporation in which he is interested or for which he
is acting, for the purpose of procuring, for his own benefit or for the
benefit of such person, firm or corporation, the delivery of personal
property, the payment of cash, the making of a loan or credit, the
extension of a credit, the discount of an account receivable or the
making, acceptance, discount, sale or endorsement of a bill of exchange
or promissory note, or who, knowing that a false statement in writing
concerning the financial condition or means or ability to pay of himself
or of any such person, firm or corporation has been made, procures, upon
the faith thereof, for his own benefit or for the benefit of such
person, firm or corporation, any such delivery, payment, loan, credit,
extension, discount, making, acceptance, sale or endorsement, shall be
fined not more than two thousand dollars or imprisoned not more than
five years or both.
The special inquiry officer, pointing out that Connecticut has a
"false pretense' statute (section 8696, 1949 Rev.; C.G.S.A.-53-360) in
which an "intent to defraud' is expressly made an essential element, and
that the "intent to defraud' is neither an expressed element of section
8698, nor one the courts have found there by implication, concluded that
the crime could be committed without an intent to defraud (one could
obtain goods by false representation and yet intend to pay for them) and
held therefore that moral turpitude was not involved.
The trial attorney believes that since section 8698 requires the
false statement to be made with intent that it be relied upon; the
crime is one involving moral turpitude. The intent to which moral
turpitude adheres, is the intent to do evil or work fraud -- this intent
is absent in section 8698. The intent that the false statement be
relied upon is not necessarily an intent to do evil or work fraud
because as the special inquiry officer has pointed out, one who intends
that there be reliance upon his false statement may nevertheless also
intend to pay for the goods he is attempting to obtain (Matter of S , 2
I. & N. Dec. 353, 357-362; see, State v. Taylor, 183 N.W. 998 (Sup.
Ct. S.D. 1921)). The fact that a person convicted under section 8698,
intended to commit fraud, does not make a conviction under the section
one involving moral turpitude. It is well settled that if a crime, as
defined, does not inherently involve moral turpitude, then no matter how
immoral the alien may have been in the particular instance, he cannot be
deemed to have been convicted of a crime involving moral turpitude. "It
is the moral obliquity of the crime and not of the individual that is
the test under the law' (Matter of E , 2 I. & N. Dec. 134, 145). The
Service cases do not establish that an intent to defraud is an essential
element of a conviction under section 8698: State v. Penley, 27 Conn.
587 (1858) involved a law which required an intent to defraud; Sallies
v. Johnson, 85 Conn. 77 (1911) was a civil action to recover damages for
fraud. Other cases cited are not pertinent.
Since the Service has failed to establish that the conviction in
question involves moral turpitude, the appeal of the trial attorney must
be dismissed.
ORDER: It is ordered that the appeal of the trial attorney be and
the same is hereby dismissed.
A Mexican national who enters the United States approximately 4 days a week to purchase firewood felled on American ranches and who returnes the same day to Mexico where he sells the wood, is admissible as a nonimmigrant visitor for business within the purview of section 101(a)( 15)(B), Immigration and Nationality Act.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(20)
-- No valid immigrant visa.
The case comes forward pursuant to certification by the special
inquiry officer of his decision dated March 27, 1964 ordering that the
alien be excluded and deported from the United States on the ground
stated above.
The facts are fully set forth in the decision of the special inquiry
officer. The applicant is a native and citizen of Mexico, 43 years of
age, male, who seeks admission to the United States with a B-1
classification nonimmigrant visa valid for unlimited applications for
admission into the United States until July 7, 1964. His purpose in
coming to the United States is to continue to secure firewood from farms
and ranches in the area in the United States within 10 to 50 miles of
Laredo, Texas.
The applicant comes to the United States usually with one or two
partners, in a truck rented by him in Mexico, which is 16 %2A 8 %2A 6 .
The applicant pays the ranchers $2 to $4 for the privilege of gathering
trees and brush, which have already been knocked down by the ranchers,
and hauling them away. These trees and limbs are widely scattered over
the ground although some of the trees are in piles. The applicant
gathers useable limbs and trees which he cuts into pieces about three
feet long, splitting the larger pieces in two, and with his partners
loads them into his rented truck. Occasionally, if he can do so without
too much difficulty, he selects wood which has already been placed in
piles but generally picks up those trees and limbs which are scattered
about. Three men working together can get a load of wood in about four
to five hours and it requires about two to two and one-half hours to go
to and from the ranches. He testified that on a usual trip he enters
the United States at Laredo, Texas, at three or four o'clock in the
morning and returns to Nuevo Laredo, Mexico shortly before five o'clock
in the afternoon of this same day. He sells this wood only in Mexico,
selling some to the owner of the truck who uses it in his brick plant.
It is also sold in the streets from house to house for about one peso
for a bundle of four sticks. He averages about 400 to 500 pesos for a
load of wood.
The Service attempted to show that because of the benefit to the
rancher the wood is practically given to the applicant as payment for
removing trees from the farm and ranch lands thus replacing American
labor and creating a competitive advantage for the applicant over the
United States merchant. A government witness has testified that he has
a grocery store in which among other things he handles firewood which he
generally sells to persons for burning in their fireplaces or for
barbecuing. He stated that he has to pay from $9 to $15 per cord, $15
being the price at the present time. This merchant also testified that
he once attempted to procure the wood himself, but because of the wages
he had to pay his help, it was not worthwhile. The applicant testified
that removing the wood is not necessarily a benefit to the ranchers or
farmers and that some are reluctant to sell their wood or to allow it to
be removed, preferring it to remain as a mulch or fertilizer.
The special inquiry officer, in his decision states that the
applicant is engaged in the activity described for the past five or six
months, making about four trips a week and expects to continue this work
for an indefinite period. He therefore finds that the business is not
temporary but is continued or permanent in nature, and although each
visit is temporary, the business is not of a temporary character. He
further finds that the applicant is performing labor in the United
States at a wage which is far below the standard of wages for American
labor and concludes by finding that the applicant has failed to
establish that he is a bona fide nonimmigrant and must be considered as
an immigrant required to present a valid unexpired immigrant visa. His
finding of fact, upon which he predicates inadmissibility, is that the
applicant has not shown that the business in which he is engaged is
temporary in nature.
Section 101(a)(15)(B) of the Immigration and Nationality Act defines
a visitor for business as an alien having a residence in a foreign
country which he has no intention of abandoning and who is visiting the
United States temporarily for business. The evidence establishes that
the applicant has a permanent residenee in Mexico which he has no
intention of abandoning. The pertinent regulation, 8 CFR 41.25(a),
describing temporary visitors for business or pleasure, sets forth that
an alien shall be classifiable as a nonimmigrant visitor for business or
pleasure if he establishes to the satisfaction of the consular officer
that he qualifies under the provisions of section 101(a)(15) of the Act
and that: (1) he intends to depart from the United States at the
expiration of his temporary stay; (2) he has permission to enter some
foreign country upon the termination of his temporary stay; and (3)
adequate financial provisions have been made to enable him to carry out
the purpose of his visit and to travel to, sojourn in, and depart from
the United States. The regulation following, 22 CFR 41.25(b), states
that the term "business,' as used in section 101(a)(15)(B) of the
Immigration and Nationality Act, refers to legitimate activities of a
commercial or professional character. It does not include purely local
employment or labor for hire.
This regulation embodies the holding of the Supreme Court in Karnuth
et al v. United States ex rel. Albro, 275 U.S. 231, 241 to the effect
that the term "business' as used in section 3(2) of the Act of 1924 was
limited in application to intercourse of a commercial character.
However the exclusion as to purely local employment or labor for hire in
the regulation from the term "business' would not appear to preclude
local employment or labor for hire which was incidental to legitimate
activities of a commercial or professional character of a temporary
nature. Significant considerations to be stressed are: that there is a
clear intent on the part of the alien applicant to continue the foreign
residence and not to abandon the existing domicile; that the principal
place of business, and the actual place of eventual accrual of profits,
at least predominantly, remains in the foreign country; while the
business activity itself need not be termporary, and indeed may long
continue, the various entries into the United States made in the course
thereof must be individually or separately of a plainly temporary nature
in keeping with the existence of the two preceding considerations.
Matter of B and K , 6 I. & N. Dec. 827, 829.
In Matter of B and K , supra, we referred to Matter of G , 6 I. & N.
Dec. 255 and Matter of M , 6 I. & N. Dec. 533, in which we cited a
number of cases in which application for admission was sought as a
nonimmigrant. We noted that sometimes the facts of the case were so
intermingled that the question resolved itself into one of degree.
Matter of M , 6 I. & N. Dec. 533 was cited by the special inquiry
officer in his decision. However, as was pointed out in Matter of B and
K , 6 I. & N. Dec. 827, 830, in view of the considerations of the
regularly recurring seasonal nature of the business for an indefinite
number of years, the sale of the trees and the conduct of the business
solely in the United States, and the accrual of profits entirely within
this country, it was concluded that the applicant's status in that case
was not consistent with that of a nonimmigrant for business.
We believe, however, that the distinction set forth in Matter of B
and K , supra, may be applied to the instant case. In the instant case
it has been established that the applicant is maintaining a residence in
Mexico to which he returns every day. His activity in the United
States, which occurs about four times a week and may be expected to
continue indefinitely, is nevertheless temporary in character because
each day he returns to Mexico, where he will continue to reside and
where the profits accrue. The principal business, which consists of
purchasing firewood in the United States and hauling it to Mexico, is
intercourse of a commercial character and, as has been already set
forth, the entries into the United States are individually and
separately of a plainly temporary nature in connection with the
principal business. The fact that in connection with the business of
hauling wood the applicant and his partners are sometimes required to
cut the wood into the proper length would appear to constitute
legitimate activities incidental to their principal business which is
intercourse of a commercial character. There is no contention that the
applicant is competing with business in the United States, since it is
conceded he sells his firewood only in Mexico. The fact appears to be
that the business is of such a nature as not to be attractive or
desirable to United States citizens because of the expense involved.
We find that the applicant qualifies as a visitor for business within
the provision of section 101(a)(15)(B) and applicable regulations since
it is clear that he intends to continue his foreign residence, the
principal place of business and the actual place of accrual of profits
is in Mexico and, while the business activity may long continue, the
various entries into the United States made in the course thereof are
individually or separately of a plainly temporary nature since he
returns each evening to his home in Mexico. We find that he is engaged
principally in intercourse of a commercial character and that the work
that he does is minor and incidental to that business. The decision of
the special inquiry officer will be reversed.
ORDER: It is ordered that the decision of the special inquiry
officer dated March 27, 1964 be reversed and that the applicant be found
admissible as a nonimmigrant visitor for business.
In rescission proceedings under section 246(a), Immigration and
Nationality Act, the burden of proof rests with the Government to
establish by a preponderance of reasonable, substantial, and probative
evidence that respondent was ineligible for adjustment of status under
section 245 of the Act.
Respondent appeals from the order of the special inquiry officer
rescinding the adjustment to lawful permanent residence respondent
received under section 245 of the Act (8 U.S.C. 1255 (1958)) on February
11, 1959; the trial attorney appeals from that portion of the special
inquiry officer's order defining the Service's burden of proof.
Respondent's appeal will be dismissed; the trial attorney's sustained.
We shall deal first with the issue as to the nature of the burden of
proof in a rescission proceeding.
Section 246 of the Act (8 U.S.C. 1256 (1958)) under which the
rescission proceeding was brought, reads in pertinent part as follows:
* * * If, at any time within five years after the status of a
person has been otherwise adjusted under the provisions of section
245 or 249 of this Act or any other provision of law to that of an
alien lawfully admitted for permanent residence, it shall appear
to the satisfaction of the Attorney General that the person was
not in fact eligible for such adjustment of status, the Attorney
General shall rescind the action taken granting an adjustment of
status to such person and cancelling deportation in the case of
such person if that occurred and the person shall thereupon be
subject to all provisions of this Act to the same extent as if the
adjustment of status had not been made.
The special inquiry officer held that the Service which has the
burden of proving that respondent had not been eligible for the
adjustment can successfully meet its burden only by proof which
convinces "almost, if not actually beyond a reasonable doubt' (p. 9,
special inquiry officer's opinion); the trial attorney contends that
the Service should carry no more than the usual burden of proof in civil
proceedings; that is, the Service should be able to establish its case
by a preponderance of the evidence. We believe the trial attorney has
stated the rule properly.
The special inquiry officer based his conclusion on judicial and
dictionary definitions of "satisfy'. He has failed to take into account
that other definitions exist; among these is one that in our opinion is
even more appropriate to the situation before us than the definition he
has relied upon. Definitions in judicial matters, for the most part,
require the word "satisfy' when applied to burden of proof, to mean that
something more than a preponderance of the evidence is involved (147 ALR
380-439 ("to the satisfaction of the jury')); however, in
administrative matters, the weight of authority appears to be that the
word is used to designate the individual who is to make the
determination and to require him to make his determination in the manner
that a reasonable man acting in good faith would. Illustrative of such
use are the following cases:
Quintana v. Holland, 255 F.2d 161 (3d Cir., 1958) (a recision
of suspension of deportation proceedings under the very section in
issue here). The court interpreting the phrase "it shall appear
to the satisfaction of the Attorney General' eliminating the
possibility that it authorized the Attorney General to follow a
subjective standard stated, "We think it means a reasonable
determination made in good faith after such investigation and
hearing as is required.'
National Association of Securities Dealer, Inc. v. SEC, 143 F.
2d 62, 66 (3d Cir., 1944). The court held that the phrase
"establish to the satisfaction of the Commission' required an
applicant to present substantial evidence to the Commission.
O'Neal v. United States, 140 F.2d 902, 912 (6th Cir., 1944).
The court held that since a statute giving the President power to
institute rationing when he is "satisfied' that a shortage exists,
also gave him the power to investigate and administer the statute,
the word "satisfied' was meant to be the equivalent of "finds'.
/1/
Since substantial authority exists in administrative matters for
interpreting the "satisfied' phrase as the designation of a person who
is to make a finding on a certain objective standard -- the standard of
a reasonable man acting without bias, and since reasonable men (juries
for example) daily make findings on important issues by a preponderance
of the evidence, and since the preponderance rule is the usual one in
civil matters, the special inquiry officer's departure from the usual
standard can be accepted only if some strong reason justifying a
departure is set forth.
No reason in the history of the legislation is given. We find none.
The Senate committee describing the section stated that it called for
rescission in those cases where "it shall appear to the Attorney
General' that the person was ineligible (S. Rep. No. 1137, 82nd Cong.,
2d Sess. 26 (1952)). The House committee stated that the section
provides for rescission "when subsequently found by the Attorney General
that the alien was not, in fact, eligible for adjustment.' (H. R. Rep.
No. 1356 (82nd Cong., 2d Sess. 63 (1952)). The commentary on the
Immigration and Nationality Act found at 8 U.S.C.A. p. 71 states that
the section permits rescission "when it is found that the person was in
fact not eligible'. There is thus no indication in the history of the
legislation that a departure from the usual burden of proof in
deportation proceedings was intended.
The dictionary definition relied upon by the special inquiry officer
does not support his position that something just short of proof beyond
a reasonable doubt is required; his own standard falls short of that
demanded by the definition. This dictionary definition defines
"satisfy' as "to free from doubt, suspicion, or uncertainty; to give
full assurance; to set at rest the mind of; to convince'; even proof
beyond a reasonable doubt leaves room for some doubt or suspicion or
uncertainty, and the special inquiry officer calls for less than proof
beyond a reasonable doubt.
One other aspect should be considered: Does the nature of an
administrative rescission proceeding call for a higher standard of proof
than the usual one in administrative matters? We think not. The issue
in the rescission proceeding is not too different from that in the
deportation proceeding where the question often is whether an alien
legally in the United States is entitled to remain; and, the issue in
the rescission proceeding is in the abstract not as important as is the
issue in the administrative expatriation proceeding where the issue is
whether United States citizenship has been lost. Yet, in both the
deportation and the expatriation proceeding, the burden upon the Service
is to establish its case by no more than a preponderance of evidence.
(In fact, Congress enacted legislation to clarify its intent that no
greater burden was to be borne in the expatriation matter (section
349(c) of the Act, 8 U.S.C. 1481(c) (Supp. IV).)
Thus, considering the history of the legislation, the judicial
decisions, the dictionary definition and the nature of the proceeding,
we find no reason for placing a greater burden upon the Attorney General
in rescission proceedings than has been placed upon him in deportation
matters. We conclude the Service must establish its contention in this
rescission proceeding by a preponderance of evidence which is
reasonable, substantial and probative.
We may now deal with the factual situation. Respondent, a
28-year-old married male, alien, a native and citizen of Portugal, was
admitted as a visitor on April 8, 1957 for a period of six months. On
May 5, 1958, his status was changed to that of a student and he was
authorized to remain in the United States until April 12, 1959. On
September 5, 1958, he married Margaret Preston, a citizen. On December
23, 1958 she filed a visa petition on respondent's behalf; the petition
was approved on February 10, 1959. On the same date, respondent filed
an application to acquire the status of a lawful permanent resident
under section 245 of the Act. The application was granted by order of
the District Director on February 11, 1959.
Prior to January 12, 1962, the respondent was acquitted on a federal
indictment charging him with committing a fraud against the United
States in that his marriage was not a bona fide one. On January 12,
1962 respondent divorced his wife. On January 17, 1963 the Service
served the respondent with a notice that it intended to rescind the
adjustment of status which he had received on February 11, 1959. The
basis for the rescission was the allegation that his marriage had been
entered into solely for the purpose of obtaining the adjustment of
status, and that it had not resulted in a bona fide husband and wife
relationship. On December 17, 1963 after a hearing begun on July 10,
1963, the special inquiry officer entered the order from which the
respondent and the Service appeal.
The Service contends that George Silva, respondent's friend, married
Priscilla Ann Muller for the sole purpose of obtaining an adjustment of
his status based upon his wife's citizenship, that he introduced
respondent to Priscilla's girl friend, Margaret Preston, that Margaret
agreed to marry the respondent for $300 with the understanding that she
would not live with the respondent, that she would not be a wife to him,
and that she would be given a divorce after respondent had become a
lawful permanent resident of the United States. Margaret appeared as a
Service witness and George Silva as a witness for respondent. The
Service presented John Warick and Emil Neto, residents of the apartment
house in which respondent allegedly lived with Margaret.
The respondent denies that his marriage was other than a bona fide
one. He testified that he married Margaret in good faith, that he lived
with her for a three-year period from the time he married her, and that
he supported her. Respondent presented Mrs. Silvina Noguera who
testified she visited the respondent and Margaret at their apartment on
nine or ten occasions, two photographs of Margaret offered to show that
she was an attractive woman with whom a man would well be desirous of
entering into a bona fide relationship, a post card written by Margaret
to the respondent's mother, two letters purportedly from Margaret asking
the respondent for money, and a bank book to establish that he could not
have made a payment to Margaret for marrying him.
The special inquiry officer considering the demeanor, interest, and
bias of the respondent and his witnesses concluded that they were not
credible witnesses. He stated that Margaret was a person who had
engaged in immoral and illegal activities, that she had testified
falsely in regard to other matters, and that she had lived in a
homosexual relationship with Priscilla, but he concluded she had
testified truth fully at the deportation hearing.
Respondent testified that after the marriage, he and his wife had
lived at 51 Madison Street, Newark, New Jersey, for three years, and
that in this period she had been absent from the apartment visiting
friends about 50 days, a total which includes 30 days in 1960 during
which respondent himself was outside the United States visiting in
Portugal. Respondent's wife denied that she had ever lived with him at
the apartment. She admitted that she had been there on two occasions in
connection with some business she had with the respondent.
Let us examine the testimony on this issue in detail. Respondent
testified that sometime before the marriage he found an apartment that
was about to be vacated (p. 21), and that the day before the marriage,
he attempted to obtain possession of the apartment but could not because
it was not to be vacated for another week or two (p. 22). After the
marriage, respondent and his wife went to a show in New York and then to
a hotel (p. 22), they stayed there for a day or two (p. 32), then came
to Newark where they spent the night in his cousin's house (pp. 35-36).
From his cousin's house, they went either to a hotel or to 51 Madison
Street (p. 36) where the apartment was located.
At a later hearing (September 23, 1963), respondent was again
questioned concerning his actions immediately after the marriage. He
testified that he and Margaret had stayed in the New York hotel a few
days (pp. 291-292), that they went to a Newark hotel for two nights, and
that they had then gone to the apartment (pp. 292-4).
Silvina Noguera, respondent's cousin, testified that the respondent
had brought his wife Margaret to her house, that they had come about two
or three days after the wedding (p. 183), that they did not stay long on
that occasion, that she took them shopping to buy clothes for Margaret,
and that she then drove them to their apartment at Madison Street (pp.
183-184). Mrs. Noguera was not questioned as to whether the respondent
and his wife stayed overnight, and the respondent was not questioned
concerning the conflict between his testimony that he stayed overnight
at Mrs. Noguera's and her testimony that they had only spent a few hours
there when he visited after the wedding.
On July 10, 1963, respondent testified that his wife had lived with
him for three years, being absent from him for short visits and on the
occasion when he visited to Portugal; he stated that he left for work
11:00 o'clock at night and that she would sometimes leave the house
around 10 or 10:30 to visit friends while he was working, and that
except for the times she left him to visit, she resided with him in the
same house day after day as man and wife (pp. 27-9, 32-3, 36-8, 44-5).
On September 23, 1963 respondent testified that except for Margaret's
brief visits, she was always at the apartment with him, although she
apparently spent nights away because he worked in the nighttime (pp.
294-5) and that she was with him "sometimes in the daytime' (p. 295).
He repeated that his wife had been with him more times than she had been
out (p. 300), that she had left her clothing at the apartment even when
she was absent for a few days (p. 305), that the total absences amounted
to about 40 or 50 days (p. 307), that when she did go out, she sometimes
went Tuesday or Friday, that sometimes she left Friday and stayed away
until Monday, but that most Saturdays she spent in the apartment (p.
308).
Respondent's former wife, Margaret, testified she had not stayed
overnight at the home of respondent's cousin, and that she had never
lived with him at 51 Madison Street but that she had been there about a
month after the marriage to sign some papers (p. 126). This witness,
besides being a call girl, displayed such a disregard for truth in
executing documents under oath in connection with adjusting the
respondent's status to that of a permanent resident that no credence can
be given her uncorroborated testimony. The testimony of Priscilla
cannot be considered as corroboratory because Priscilla herself is not
credible without some corroboration of her testimony.
There is some corroboration for Margaret's testimony that she did not
stay with respondent overnight, at the home of respondent's cousin since
respondent's cousin stated that their visit had been a short one, that
she had taken them shopping, and that she had taken them home to the
Madison Street address.
There is some corroboration of Margaret's testimony that she did not
reside with respondent at 51 Madison Street; this is in the form of two
letters coming from Margaret. The first letter (undated but written
before August 1, 1959) informs respondent that Margaret is in Long
Island without money and that his remittance of $2.00 was no help to her
in buying food, paying for the rent, purchasing gas or taking care of
her two dogs, and that she needed $100 (Ex. 11, pp. 131, 133-4). The
second letter, dated August 1, 1959, recalls the destitute circumstances
in Long Island; it states that Margaret had lost both her dogs and
practically everything she owned, that she had to hike back to New York,
that she was "on 69th again and had to start from scratch', and that she
wanted a divorce (Ex. 21, pp. 150-1). (A third letter (Ex. 23) is
undated and it cannot be determined whether it was written while the
parties were supposed to be living together.)
We find in these letters corroboration of Margaret's testimony that
she had not lived with respondent. If as the respondent testified,
Margaret dwelt with him daily except for short visits to friends it is
difficult to understand why she had to write to him for money and why he
was expected to send her money instead of just giving it to her.
Moreover, the letter showing that Margaret was living in Long Island,
with her TV set and other possessions and that she had to "pay rent'
(Ex. 11), and the letter stating that Margaret had lost practically
everything she owned, that she was 69th again, and that she had to start
from scratch (Ex. 21) are hardly the letters of one who was merely away
from Madison Street on a short visit to friends.
Some corroboration of the claim that Margaret did not live with
respondent is seen also in the following: Margaret's presence in Newark
was made necessary by the Service request that she appear for an
interview in connection with her visa petition on February 10, 1959;
she signed a joint income tax return for 1958 on the same date (Ex.
17). This coincidence raises a question as to whether Margaret was
available to the respondent as he claimed daily, or whether he took
advantage of her presence in Newark for immigration purposes to have her
sign the return.
We do not find any substantial conflict between Margaret's testimony
on this issue and the testimony of the two witnesses who were
respondent's cotenants. The respondent stated that his neighbor in the
apartment across from him must have seen Margaret on many occasions
because of the number of times Margaret was there and that the witness
had probably seen Margaret when he came into respondent's apartment.
This neighbor testified that he had seen Margaret on only two occasions
and both occasions had been shortly after the respondent had moved into
the apartment. The tenant on the ground floor testified he had seen
respondent but had never seen a woman enter respondent's apartment. He
had heard footsteps indicating the presence of more than one person in
respondent's apartment but could not identify the footsteps.
Counsel's attack upon the credibility of Margaret is well taken but
we have credited only testimony which is corroborated. Respondent's
acquittal on criminal charges based on facts which in turn are the basis
for the charge here does not require dismissal of the deportation charge
since the burden of proof in each case is different. Margaret's
admission that she had relations with respondent on one occasion (for
pay) does not make a bona fide marriage relationship exist where none
was intended (pp. 132-3, 135); whether or not the possibility of
blackmailing respondent was a factor in persuading Margaret to enter
into the marriage need not be discussed in view of the proof here that
respondent did not intend to enter a bona fide marriage relationship.
We believe that the Service has borne its burden of establishing by a
preponderance of evidence that is reasonable, substantial and probative,
that respondent entered into a marriage with Margaret Estelle Preston on
September 5, 1958 at Elkton, Maryland solely to enable him to adjust his
status to that of a permanent resident: no bona fide husband-wife
relationship was intended and none resulted. Respondent was not
eligible for the adjustment of status which he was granted by the
District Director, Newark, New Jersey on February 11, 1959. The appeal
of the respondent will not be dismissed.
ORDER: It is ordered that the appeal of the respondent be and the
same is hereby dismissed.
(1) Illustrative of still another use: Montgomery v. Ffrench, 299
F.2d 730, 735 (8th Cir., 1962). The court held that a law requiring a
petitioner to "establish to the satisfaction of the Attorney General'
that he would give proper care to an orphan he desired to bring to the
United States, gave the Attorney General a discretion to act which would
not be reviewed by the court.
A United States citizen who was aware of his acquisition of citizenship by reason of birth in this country but who, relying on erroneous information supplied by a Canadian government official to the effect he had already lost such citizenship, voluntarily voted in politicial elections in Canada between 1944 and 1948, thereby lost his United States citizenship under section 401(e), Nationality Act of 1940.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(20)
-- No immigrant visa.
A special inquiry officer directed that the applicant be admitted to
the United States as a citizen, and the case is before us pursuant to
certification. The Service urges that the decision of the special
inquiry officer be reversed.
The applicant is a 53-year-old married male, native of the United
States, who applied for admission to this country as a citizen. At
birth, he acquired United States citizenship and appears also to have
become a British subject, both of his parents having been British
subjects born in Canada. The applicant has lived in Canada since he was
about one year old but entered the United States as a citizen on many
occasions until about 1944 after which he entered as an alien. The sole
issue to be determined is whether the applicant has lost his United
States citizenship.
We have carefully reviewed the entire record. The applicant voted in
a political election in Canada between 1944 and 1948 and also in
political elections in June 1961 or 1962 and on April 8 and April 22,
1963. Section 401(e) of the Nationality Act of 1940 8 U.S.C. 801(e),
1946 Ed. , which was in effect from January 13, 1941, to December 24,
1958, provided that a national of the United States "shall lose his
nationality by: * * * (e) Voting in a political election in a foreign
state * * *.' Since the applicant admits that he voted voluntarily,
expatriation would have occurred under this statutory provision and in
accordance with the decision in Perez v. Brownell, 356 U.S. 44 (1958).
There is one remaining aspect of the case which requires
consideration. Exhibit R-4 shows that on January 29, 1944, the
applicant executed a form of the Canadian Immigration Service by virtue
of which he became a landed Canadian immigrant as of that date. The
form indicates that he was born in the United States of Canadian
parents; that he accompanied them on their return to Canada in
September 1911; that he has continued to reside in Canada since that
time; and that it had not been possible to find any record of a prior
legal landing in Canada. Another record has been found showing him as a
Canadian landed immigrant on October 20, 1930. The applicant testified
that in 1944 the Canadian immigration officer told him it was necessary
for him to sign this form and, after it was executed, told him he would
no longer have any rights as a United States citizen. It is clear, of
course, that the applicant did not actually lose his United States
citizenship by signing this form. He stated that, because he thought he
was no longer a United States citizen, he voted in the Canadian
elections previously mentioned.
The special inquiry officer stated that there were no cases precisely
analogous to that of the applicant, but he relied on Rogers v.
Patokoski, 271 F.2d 858 (9th Cir., 1959); Matter of S , 8 I. & N. Dec.
226 (1958); and Int. Decs. Nos. 1175 and 1218. The two latter are
Matter of C A , 9 I. & N. Dec. 482 (1961), and Matter of C S , 9 I. 3
N. Dec. 670 (Atty. Gen., 1962).
Matter of S involved an individual who was informed by an American
consular officer that he had lost his United States citizenship and he
thereafter voted in a political election. The information given by the
consular officer was correct at the time. By reason of subsequent
developments, the individual was actually a citizen when he voted and we
held that he did not become expatriated. When an official of the United
States Government, having the duty of passing upon citizenship
questions, informs a person that he is no longer a citizen of the United
States and the individual, relying on this information, then votes in a
foreign political election, it is logical to hold that expatriation did
not occur where the individual had actually been a citizen of the United
States when he voted. To hold otherwise would be contrary to every
equitable concept. However, we do not consider that there would be any
justification for ignoring the statutory provision in section 401(e) of
the Nationality Act of 1940 merely because, as alleged by the applicant,
he was erroneously informed by a Canadian officer that he had lost his
United States citizenship. In Matter of S , supra, at pages 232-233, it
was specifically stated that our holding there was to be limited to
certain specified situations such as the one just indicated.
In the three other decisions mentioned, the individuals had not been
born in the United States and had not known they had acquired United
States citizenship through a parent until sometime after they had
performed the act which was alleged to have caused expatriation. On the
other hand, this applicant has always known that he acquired United
States citizenship by reason of his birth in this country, and these
three decisions are of no assistance to him.
There is nothing in the language of section 401(e) of the Nationality
Act of 1940 nor in any of the decided cases which would require any
conclusion other than that flowing from the statutory language itself.
Under the language of the statute, we hold that the applicant lost his
United States citizenship when he voted in a political election in
Canada between 1944 and 1948 and that he will require an immigrant visa
if he desires to enter as an immigrant. Accordingly, we will sustain
the appeal of the Service.
ORDER: It is ordered that the special inquiry officer's orders dated
May 14, 1963, November 13, 1963, and February 10, 1964, be withdrawn and
that the applicant be held not entitled to admission to the United
States as a citizen.
Since appellant's absence of a month to Portugal to visit his parents is not within Rosenberg v. Fleuti, 374 U.S. 449, despite his continuing intent not to abandon residence here, his return to the United States following such absence constitutes an entry upon which to predicate a ground of exclusion.
EXCLUDABLE: Act of 1952 -- Section 212(a)(22) 8 U.S.C. 1182(a)(22)
(1958) -- Ineligible to citizenship -- Applied for and received relief
from service in the armed forces.
Applicant, a 55-year-old married male, a native and citizen of
Portugal, admitted to the United States for permanent residence in 1954,
sought to enter the United States on February 28, 1960, after a visit to
Portugal of a month. His exclusion was ordered on the ground that his
execution on April 30, 1943 of an application for exemption from service
in the armed forces of the United States had made him ineligible to
citizenship and, therefore, inadmissible to the United States.
Applicant's appeal was dismissed by the Board on August 16, 1961.
Applicant requests reopening of his exclusion proceeding for a
reexamination of the circumstances surrounding his visit to Portugal so
that there may be a determination in view of Rosenberg v. Fleuti, 374
U.S. 449 (1963), as to whether he intended to make a meaningful
departure. The motion will be denied.
With two exceptions, any coming of an alien from a foreign place,
whether it is a first coming or a return, is an "entry' subjecting the
alien to the exclusion provisions of the immigration law. The two
exceptions are: (1) a coming following an involuntary departure, (2) a
coming following a departure which "was not intended or reasonably to be
expected' by the alien. (Emphasis supplied.) An alien falling within an
exception does not make an "entry' upon his return; i.e., he is
regarded as if he had not left the United States (section 101(a)(13) of
the Act, 8 U.S.C. 1101(a)(13) (1958)).
In Fleuti, supra, the Court passing on the second exception held that
an alien's departure made without the desire to disrupt his permanent
residence was not an "intended' departure within section 101( a)(13) of
the Act. The Court did set forth some factors relevant in determining
whether a departure had been intended to be disruptive of residence
(length of the absence, purpose of the visit, need to secure travel
documents) but preferring that interpretation evolve judicially made no
attempt to set down a firm rule for classifying departures. The Court
did state that an "innocent, casual and brief' trip could be one which
was not "intended'; i.e., one in which the intent to disrupt residence
was absent.
The Board held that Fleuti, a permanent resident, who had briefly
visited Mexico, had been excludable on his return as one afflicted with
psychopathic personality. The Court considering whether Fleuti came
within the second exception but being unable to decide because the
record contained no detailed description or characterization of the trip
to Mexico beyond the fact that Fleuti had gone on a visit of a few
hours, remanded the case to the Service for further consideration,
stating, "If it is determined that respondent Fleuti did not "intend' to
depart in the sense contemplated by section 101(a)(13) of the Act , the
deportation order will not stand * * *' (374 U.S. 463).
Applicant believes that development of the facts concerning his visit
will show that he had a continuing intent to return to the United States
and, therefore, that he did not intend to depart in a manner disruptive
of his permanent residence: he was absent for only a motion -- a short
time, especially, so in terms of the entire period he had been in the
United States; furthermore, he had left only to visit his aged parents
in Portugal, leaving behind his wife and a child, a home he owned, a
business, assets, land, and a checking account.
The trial attorney opposes reopening as fruitless because of the
contrast between Fleuti's excursion of a few hours and applicant's
longer absence; and Fleuti's casual departure and applicant's departure
which required him to obtain a Portuguese passport and transportation.
The trial attorney also raises a new issue: he points out that Fleuti
applies only to an alien admitted for permanent residence, but he
contends that the applicant was not so admitted because his admission on
September 28, 1954, for permanent residence was in error since he was
then inadmissible as one ineligible to citizenship.
Counsel answers these contentions by pointing out that although
Fleuti was absent only a few hours, the Court in reaching its conclusion
concerning the necessity for an intent to disrupt residence referred to
the fact that Congress had authorized absence of aliens for up to six
months without penalty in naturalization proceedings. Counsel states
that Fleuti is not limited to visits to territory bordering the United
States since a trip to Mexico could cover great distances, and a trip to
other foreign lands could with today's rapid means of transportation be
accomplished within a matter of hours and might not cover as much
distance as the trip to a distant part of Mexico. He also points out
that an alien going to contiguous foreign territory is often required to
obtain a ticket for transportation and must obtain consent of the
foreign government to enter. Counsel contends that the issue raised by
the trial attorney as to whether the applicant is a legal resident,
cannot be tested here but must be the subject of a deportation
proceeding; he cites Matter of V G , 9 I. & N. Dec. 78, as authority.
We believe that applicant intended that his departure to Portugal was
to place him in a foreign place within the meaning of section 101(
a)(13) of the Act and, therefore, made him upon his return, subject to
the laws relating to aliens who are seeking to enter the United States.
Under these laws he was properly excluded. That a resident alien's
possession of a continuing intent to return from a visit abroad does not
remove him from the exclusion provisions of the immigration laws, is
clear from the fact that Congress provided for the readmission of a
returning resident who was excludable under the immigration laws; in
fact, possession of a continuing intent to return is made a condition of
eligibility for relief (Matter of S , 5 I. & N. Dec. 116; section
212(c) of the Act (8 U.S.C. 1182(c) (1958)). That Fleuti did not alter
this interpretation of section 212(c) of the Act, may be seen from the
fact that Fleuti, being a visitor to Mexico, necessarily retained an
intent to return; however, this intent to reurn did not in and of
itself exempt him from the application of the immigration laws upon his
return. This is shown by the fact that the court, despite Fleuti's
intention to return, remanded the case for a determination as to whether
Fleuti intended to depart in a manner disruptive of his residence. In
view of the action taken by the court in Fleuti, and the command of
section 212(c) of the Act, we must rule that a mere showing by an alien
that he intended to retain domicile does not establish that he did not
make an "intended' departure when he left the United States on a visit
abroad.
Counsel contends that since one visiting contiguous territory may
require transportation and may travel a great distance, it is proper to
hold that a trip of equal distance to noncontiguous soil should not be
considered an "intended' departure. The reasoning is open to the
objection that Fleuti does not hold that a trip to Mexico of the nature
hypothesized would not constitute an "intended' departure.
The court's statement as to what constitutes an "intended' departure
to foreign territory and what does not is admittedly general in nature,
but in our opinion nothing said there authorizes us to rule that
applicant did not make an "intended' departure. A brief visit of a few
hours is different from the longer period involved here; the innocent
and casual nature of a trip made by merely stepping over an
international boundary contrasts strongly with the comparatively
sophisticated, and planned nature of a trip requiring procurement of
travel documents (passport and tickets), and involving the realization
that one is separating himself from this country.
The cases relied upon by counsel are not applicable:
Matter of Cardenas-Pinedo, Int. Dec. No. 1295, involved trips
to Mexico for a few hours.
Matter of Yoo, Int. Dec. No. 1305, involved a visit to Mexico
for four hours on a sight-seeing trip.
La Rochelle v. Sahli, 323 F.2d 364, 6th Cir. (1963), was a
remand of the case to the Service at the request of the Service.
No facts are stated.
Since we find that applicant is not within Fleuti for the reasons
stated, we do not think it necessary to consider the issue as to legal
residence raised by the Service for the first time upon this appeal.
ORDER: It is ordered that the motion be and the same is hereby
denied.
A conviction of illicit traffic in narcotics in the State of California resulting in a suspended sentence and probation constitutes a conviction of sufficient finality to support an order of deportation under section 241(a)(11), Immigration and Nationality Act, and the finding of deportability is not affected by the expungement or erasure of the conviction record as authorized under sections 1203.3 and 1203.4 of the Penal Code of California.
CHARGE: Act of 1952 -- Section 241(a)(11) 8 U.S.C. 1251(a)(11) --
Convicted of violation of narcotic law -- Illicit traffic in marijuana.
The case comes forward on appeal from the order of the special
inquiry officer dated January 27, 1964, ordering respondent be deported
from the United States on the charge contained in the order to show
cause.
The record relates to a native and citizen of Great Britain, 26 years
old, male, who last entered the United States on or about August 1959.
He was originally admitted to the United States for permanent residence
on February 13, 1953, under section 6(a)(3) of the Immigration Act of
1924 (Exhibit No. 3).
The respondent was convicted on his plea of guilty on May 27, 1963,
in the Superior Court in the State of California in and for the City and
County of San Francisco to count three of an indictment charging him
with violation of section 11531 of the Health and Safety Code of the
State of California, in that on or about the second day of March 1963 in
the City and County of San Francisco in the State of California, the
respondent unlawfully sold and gave away a narcotic, to wit, marijuana
(Exh. 2). The court ordered respondent placed on probation for a period
of three years on condition that he be confined in the county jail for
the term of six months. During the pendency of the hearing, the
respondent obtained on October 8, 1963, from the Superior Court of the
State of California, County of San Francisco, where his conviction had
occurred, an expungement of the conviction pursuant to sections 1203.3
and 1203.4 of the Penal Code of California (Exh. 5). On the basis of
this expungement, the attorney for the respondent moved that the
proceedings be terminated. The only issue presented in this case is the
effect of this expungement.
A conviction in all respects similar to that of the respondent was
considered in Matter of A F , 8 I. & N. Dec. 429 (Atty. Gen., 1959).
The contention was raised that expungement of the conviction under
section 1203.4 of the California Penal Code erased the record and that
consequently there could be no conviction within the meaning of section
241(a)(11) of the Immigration and Nationality Act. The Attorney General
held, that for the purposes of section 241(a)(11), it was immaterial
that pursuant to a State statute like section 1203.4 of the California
Penal Code or section 1772 of the Welfare and Institutions Code, the
verdict of guilty has been set aside and the criminal charge dismissed.
The Attorney General stated that the history of section 241(a)(11)
convinced him that Congress did not intend that aliens convicted of
narcotic violations should escape deportation, because, as in
California, the State affords a procedure authorizing a technical
erasure of the conviction.
The respondent in the above-cited case obtained an expungement of his
conviction under section 1203.4 of the California Penal Code on May 13,
1960, but his motion to reopen was denied on May 16, 1960, on the ground
that no useful purpose would be served by reopening in view of the
decision of the Attorney General. Court action was subsequently
instituted and on November 9, 1962, in the case of Arellano-Flores v.
Rosenberg, 310 F.2d 188, the United States Circuit Court of Appeals
affirmed the holding of the District Court that, despite the expungement
of the conviction, the respondent was subject to deportation under
section 241(a)(11) of the Immigration and Nationality Act. /1/
The respondent was admitted to the United States for permanent
residence on February 13, 1953. He has testified that he has resided in
the United States except for a sight-seeing trip to Mexico from May to
August 1959 when he reentered the United States as a returning resident.
Under section 241(a)(11) of the Immigration and Nationality Act, the
charge of deportability is not predicated upon any specific entry into
the United States but the charge simply provides that any alien who at
any time has been convicted of a violation of any law relating to
illicit traffic in narcotic drugs or marijuana is subject to
deportation. Thus the principle of the case of Rosenberg v. Fleuti, 374
U.S. 449, has no bearing.
The respondent testified that his mother is a permanent resident of
the United States and his father is a naturalized citizen of this
country. He served in the United States Army from August 1961 to August
1963 when he received an undesirable discharge because of his conviction
of the narcotics violation. Discretionary relief does not appear to be
available.
In connection with the appeal, counsel for the respondent urged that
the case be held in abeyance pending a decision in the Court of Appeals
for the Ninth Circuit in the case entitled Carcia-Gonzales v. I. & N.
Service, No. 18,375 in which he alleged the same issue is present. The
holding in this case is not set forth and we are not aware that the same
issue is presented which was disposed of in the case of Arellano-Flores
v. Rosenberg, 310 F.2d 118, cert. den. 374 U.S. 838. We do know however
that in the case of Gutierrez v. I. & N. Service, 323 F.2d 593 (9th
Circuit, 1963), in which an alien was convicted of possession of
marijuana by a California Court and was placed on probation for three
years, the Court cited with approval its earlier holding in
Arellano-Flores v. Hoy /2/ to the effect that California would consider
on this record that there was a conviction. The Court held that there
was no merit to the contention that the criminal proceedings which
resulted in petitioner's conviction do not have sufficient finality to
support the order of deportation. /3/
We conclude that the conviction of illicit traffic in narcotics in
the State of California which results in a suspended sentence and
probation constitutes a conviction of sufficient finality to support an
order of deportation under section 241(a)(11), and that this finding of
deportability is not affected by the expungement or erasure of the
conviction record as authorized under section 1203.4 of the Penal Code
of the State of California. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Cert. den. 374 U.S. 838.
(2) 262 F.2d 667, cert. den. 362 U.S. 921.
(3) In the Gutierrez case, certiorari was denied on April 20, 1964.
Since appellant's return to the United States from Canada following an overnight visit linked to cheating activities in a gambling game is not within Rosenberg v. Fleuti, 374 U.S. 449, it constitutes an entry upon which to predicate a ground of exclusion.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(20) -- No immigrant visa.
Act of 1952 -- Section 212(a)(9) 8 U.S.C. 1182(a)(9) -- Convicted of
crime involving moral turpitude prior to entry.
The case comes forward on appeal from the order of the special
inquiry officer dated February 7, 1964, finding the applicant
inadmissible on the grounds stated above and ordering that he be
excluded and deported from the United States.
The record relates to a native and citizen of Canada, 43 years old,
male, single, was applied on January 23, 1964, at Port Huron, Michigan,
for admission as a returning alien lawfully admitted for permanent
residence. He had been admitted as an immigrant at the port of Detroit,
Michigan, on January 20, 1960, and has continued to reside in the United
States since that time except for brief absences to Canada.
Deportation proceedings were previously instituted charging the
appellant to be subject to deportation under section 241(a)(4) of the
Immigrant and Nationality Act by reason of two convictions: on
September 12, 1955, obtaining money by false pretense in Algona,
Ontario, Canada; and on May 10, 1962, petit larcency in the Cleveland,
Ohio Municipal Court. The entry upon which the charges were laid
occurred in 1949 as a nonimmigrant prior to the appellant's basic entry
for permanent admission in 1960. The special inquiry officer ordered
the proceedings terminated since only one conviction followed the basis
entry and, on certification, the Board of Immigration Appeals on
December 31, 1963, ordered that no change be made in the order of the
special inquiry officer. The Service filed a motion with the Board to
reconsider its decision but by letter dated January 24, 1964, the
Service indicated that inasmuch as it ascertained that the alien left
the United States, was convicted on December 30, 1963, in London,
Ontario, for violation of Canadian Custom Act and was awaiting an
exclusion hearing, it was abandoning that motion in view of the
circumstances. The prior deportation proceedings are not pertinent to
the present exclusion proceedings in which the principal issue is
excludability under section 212(a)(9) of the Immigration and Nationality
Act and in which the petty offense exemption applied for in that section
is not available because of the commission of more than one said
offense.
Counsel contends that the applicant was not seeking to make at
"entry' on January 23, 1964, after he departed to Canada on the previous
day, citing Rosenberg v. Fleuti, 374 U.S. 449, since he had not on the
previous day made a departure "meaningfully interruptive of the alien's
permanent residence.' It is not believed that the Fleuti case is
applicable for reasons which will be set forth more fully below.
The appellant and two others went to Oakville, Ontario, Canada, on or
about November 20, 1963, where they were arrested for "cheating at
play.' /1/ They were released on bond and are now awaiting trial on this
charge. The appellant on this occasion was also arrested and convicted
for having in his possession certain goods on which customs duties had
not been paid contrary to section 203(3) of the Canadian Customs Act.
(Exh. 6) These goods, included 686 dice and six decks of playing cards.
The appellant had previously been convicted on September 12, 1955, in
the Magistrate's Court, Algona District, Ontario, for the offense of
"Obtaining Credit by False Pretenses' contrary to section 304(1)(b) of
the Criminal Code of Canada and on May 10, 1962, was convicted in
Cleveland Municipal Court, Cleveland, Ohio, for the offense of petty
larceny.
The appellant testified that he worked part-time buying and selling
clothing and other merchandise for a surplus store. He testified that
at the time of his departure on November 20, 1963, he intended to visit
his sister in Hamilton. The appellant was unable to offer any
explanation as to why the police wanted to look in the trunk of his car
which led to the finding of the goods for which he was arrested and
convicted. His testimony was that the quantity of the dice comprised
samples which he was to show or sell. The special inquiry officer has
found that the appellant's explanations lack conviction and, based upon
the demeanor of the appellant, comes to the conclusion that the purpose
of the visit in November 1963 was to fleece by intentional fraud and
cheating other players in a gambling game. The appellant on January 23,
1964, was returning from an overnight visit to Oakville, Canada,
occasioned by necessity of making a court appearance there in connection
with a criminal pending case in which he is under indictment for
violation of section 181, Criminal Code of Canada, "Cheating at play'.
This last trip and attempted entry is linked directly with the November
1963 trip which resulted in the arrest for cheating at play and Customs
conviction.
In construing the term "entry' as used in section 101(a)(13) of the
Immigration and Nationality Act, the Supreme Court in Rosenberg v.
Fleuti, 374 U.S. 449, concluded that it effectuates Congressional
purpose to construe the "intent' exception in that definition as meaning
an intent to depart in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence. One of the major
factors set forth by the Court relevant to a determination of whether
such intent can be inferred, was the purpose of the visit, for if the
purpose of leaving the country was to accomplish some object which was
itself contrary to some policy reflected in our immigration laws, it
would appear that the interruption of residence thereby occurring would
properly be regarded as meaningful. We believe that the purpose of the
visit, as found by the special inquiry officer, in the light of all the
facts appears not to have been the innocent, casual and brief trip which
occurred in the Fleuti case. It is concluded that the second charge in
the caption is sustained by the evidence.
The first ground for exclusion in the caption is laid under section
212(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(
20)) in that the applicant, who seeks admission as an immigrant, is not
in possession of a valid immigrant visa or other valid entry document.
The appellant's Form I-151, alien registration receipt card, was
returned by the police of Oakville, Ontario to the immigration
authorities at Detroit, Michigan, on November 27, 1961, with the
information that the card was found in an alley at the rear of the hotel
in that city. (Exh. 8). The appellant submitted an application for the
issuance of a new alien registration receipt card in lieu of the one
which he claimed to have lost on or about January 15, 1962. An effort
was made to return the lost card to the appellant but the letter was not
delivered due to a wrong address. The record is somewhat confused but
apparently appellant did receive at least one new alien registration
card which he testified that he lost about three months prior to his
last entry. He knew he had lost the card but intended to make an
application to the immigration officer at the time he returned on
January 23, 1964, although he did not make any inquiry prior thereto
whether he would be admitted.
The record establishes that the respondent is not in possession of a
valid immigrant visa or other valid entry document in lieu thereof.
There is no evidence that the appellant was granted a waiver under
section 211(b) of the Immigration and Nationality Act in connection with
this return from Oakville, Ontario, in November 1963. Upon the present
record we do not consider the appellant is worthy of the exercise of the
discretionary relief contained in section 211(b) of the Immigration and
Nationality Act. The appeal from the excluding decision of the special
inquiry officer will be dismissed.
ORDER: It is ordered that the appeal from the excluding decision of
the special inquiry officer be and the same is hereby dismissed.
(1) Canadian Criminal Code (Rev. of 1953-4), Sec. 181: "Cheating at
Play. Every one who, with intent to defraud any person, cheats while
playing a game, or in the holding the stakes for a game, or in betting
is guilty of an indictable offense and is liable to imprisonment for two
years.'
A nonimmigrant student who pursued a full course of study but accepted parttime employment without having applied for permission to do so as required by applicable regulations (8 CFR 214.2(f)) has violated her nonimmigrant status and is deportable under section 241( a)(9), Immigration and Nationality Act.
CHARGE:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) -- After
admission as nonimmigrant and subsequent change to another nonimmigrant
status under section 248 of the Act, failed to comply with the
conditions of changed status.
The case presents an appeal from an order entered by the special
inquiry officer on March 9, 1964, granting the respondent's request that
she be permitted to depart voluntarily from the United States, in lieu
of deportation, and directing that if she fails to depart when and as
required she be deported from the United States to Jamaica, British West
Indies, on the charge set forth in the order to show cause. The
respondent, a 34-year-old female, native and citizen of Jamaica, has
resided continuously in the United States since her admission at New
York, New York, on or about May 26, 1960, as a nonimmigrant visitor for
pleasure. The respondent's status was changed from that of a
nonimmigrant visitor for pleasure to that of a nonimmigrant student and
she was authorized to remain in the United States in the latter status
until March 22, 1964. Deportion proceedings were instituted against the
respondent on March 2, 1964.
A hearing in deportation proceedings was held at New York, New York,
on March 9, 1964, at which time the respondent and counsel who
represented her at the deportation hearing admitted the truth of the
several factual allegations set forth in the order to show cause and
conceded deportability on the charge stated therein. When the
respondent was asked if she had been gainfully employed, without
permission from the United States Immigration and Naturalization
Service, as a domestic in New York City from the summer of 1963 until
December 1963, she replied, "Yes.' The respondent's present counsel by
brief and in oral argument on appeal urged that her status as a
nonimmigrant student be reinstated and the proceedings terminated
inasmuch as she has regularly attended and still attends the Academy of
Designing in New York, New York, where she is pursuing a full course of
study in dress design. Counsel argued that she has not violated the
terms of her nonimmgrant student status and, as a consequence thereof,
she is not subject to deportation on the charge set forth in the order
to show cause, notwithstanding her admission that she was gainfully
employed as a domestic in New York City without permission of the
Service from the summer of 1963 until December 1963.
Counsel contends that the respondent's acceptance of part-time
employment, dring a period of temporary financial need, did not violate
the conditions of her nonimmigrant student status so long as she
continued to pursue a full-time course of study at a school approved by
the Attorney General. Counsel stated that the Immigration and
Nationality Act is completely silent with respect to a restriction upon
the part-time employment of nonimmigrant students; that neither section
101(a)(15)(F), which defines the status of a nonimmigrant student, nor
section 248 of the Act, which authorizes the change of a nonimmigrant
status, specifically restricts the acceptance of part-time employment by
a nonimmigrant. According to counsel the only requirements for
maintenance of student status is the maintenance of a residence in a
foreign country which the student has no intention of abandoning and a
bona fide intention of the student to pursue a full course of study at
an established institution of learning approved by the Attorney General.
The aforementioned arguments of counsel are without merit. Section
214 of the Immigration and Nationality Act, as amended, states that "the
admission to the United States of any alien as a nonimmigrant shall be
for such time and under such conditions as the Attorney General may by
regulations prescribe, * * * to insure that at the expiration of such
time or upon failure to maintain the status under which he was admitted,
or to maintain any status subsequently acquired under section 248 of the
Act, such alien will depart from the United States.' (Emphasis
supplied.)
Section 248 of the Immigration and Nationality Act, as amended,
provides "the Attorney General may, under such conditions as he may
prescribe, authorize a change from any nonimmigrant classification to
any other nonimmigrant classification in the case of any alien lawfully
admitted to the United States as a nonimmigrant who is continuing to
maintain that status, * * *.' Part 248.2, 8 CFR, states that
"application for a change of nonimmigrant classification shall be made
on Form I-506. If the application is granted, the alien's nonimmigrant
status under such reclassification shall be subject to the terms and
conditions applicable generally to such classification and to such other
additional terms and conditions, * * *.' 8 CFR 214.2(f) among other
things provides that a student shall apply for permission to accept
employment on Form I-538 and may be granted or denied without appeal by
an officer in charge of a suboffice or a district director. There is
nothing in this record to show nor has any claim been made by the
respondent or counsel who represented her at the deportation hearing or
by counsel who is now representing her that she, the respondent,
complied with the provisions of Part 214.2(f), 8 CFR, supra, which
required her to make application for permission to accept employment on
Form I-538. The respondent never applied to the Service for permission
to accept employment of any kind. The applicable regulations require
that the respondent be subject to the terms and conditions applicable
generally to her changed status as a nonimmigrant student. The record
clearly establishes that the respondent failed to comply with the
conditions of her changed status, in that, she did not apply to the
Immigration and Naturalization Service for permission to accept
employment as required by the applicable regulations (8 CFR 214.2(f)).
Hence, she is subject to deportation on the charge set forth in the
order to show cause.
After carefully considering all the evidence of record, together with
counsel's representations on appeal, we find nothing therein that
warrants any change being made in the decision of the special inquiry
officer who has accorded the respondent the privilege of voluntary
departure, which is the maximum discretionary relief available to her.
Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be dismissed.
Adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied as a matter of discretion to an alien from a nonquota country who sought and gained entry into the United States with a preconceived intention to establish permanent residence, since the bona fides of the alien in securing his nonimmigrant visa is a persuasive factor in considering the exercise of such discretion. NOTE: See also, Matter of Garcia-Castillo, Int. Dec. No. 1416, of which the alien in this case is also the subject.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Visitor, remained longer.
In an opinion dated February 24, 1964, the special inquiry officer
found the respondent herein deportable on the charge contained in the
order to show cause and granted his application for status as a
permanent resident under section 245 of the Immigration and Nationality
Act. From that opinion the trial attorney has appealed to this Board.
The appeal will be sustained.
The respondent is a native and citizen of Peru, single, who was last
admitted to the United States on June 13, 1963, at which time he was
authorized to remain in the United States as a visitor until July 15,
1963. On October 2, 1963, he applied for adjustment of status to that
of a permanent resident and that application was denied on November 26,
1963. He was thereafter permitted to remain in the United States until
December 26, 1963. He remained beyond that time without authority and
is, therefore, deportable on the charge contained in the order to show
cause.
The special inquiry officer in his opinion found that it was the
respondent's intention at the time he came to the United States to apply
for adjustment of status from that of a visitor to that of a permanent
resident. The record shows that even though he knew it was illegal for
him to work in this country, he nevertheless obtained employment about a
week after his arrival. Moreover, his first application for a visitor's
visa to the United States was rejected by the American consul.
Thereafter he requested a travel agent in his home country to assist him
and it is his testimony that the travel agent arranged for him to get a
letter from a doctor to the effect that the respondent was making a trip
to the United States in order to secure medical treatment. Upon
presentation of this letter to the American consul, the visitor's visa
was issued.
The special inquiry officer in considering the application of the
respondent cited our decision in the Matter of Barrios, Interim Decision
No. 1264. He concluded from this opinion that our holding was that when
an alien comes from a nonquota country, his bona fides in securing the
nonimmigrant visa is immaterial to consideration of an application under
section 245. Accordingly, he reasoned that the exercise of discretion
in applications under section 245 should only be based on other factors
in the case of the applicant. We cannot agree with the special inquiry
officer in this regard. In Barrios we limited our decision to grant
relief to the particular facts of that case. There we had a situation
of a nonquota alien who entered the United States as a nonimmigrant
fully cognizant of the fact that he could not remain permanently unless
permitted to do so lawfully. We found no lack of good faith in his
entry as a nonimmigrant, nor any intention to circumvent the normal
procedures of entering the United States for permanent residence. In
that case we did not agree with the Service that Barrios unequivocably
admitted that it was his intention to come here permanently at the time
he applied for and obtained his visitor's visa. These factors are not
present in the instant case. Here the respondent upon his first
application for a nonimmigrant visa obtained and presented to the
American consul a false employment statement. On his second application
for a nonimmigrant visa he presented a letter from a doctor stating that
it was necessary for him to travel to the United States for medical
reasons. Moreover, within one week after arriving in the United States
the respondent took employment. The record shows beyond a doubt that
the respondent sought and gained entry into the United States with a
preconceived intention to establish permanent residence here. The
respondent freely concedes his deception upon the American consul. His
testimony in this regard states that his reason for seeking this method
of permanent residence in the United States was because he did not want
to wait a long time to get an immigrant visa and because he has no
"guarantee' or financial sponsorship in the United States. It is his
testimony that he seized upon this method after finding out from several
friends who had also entered the United States as tourists and were able
thereafter to adjust their status to that of permanent residents. The
trial attorney in a brief on appeal sets forth the above factors as
reasons for not exercising discretion favorably. We agree with the
trial attorney's assertion that to grant the respondent the relief he
seeks would tend to encourage deliberate evasion of consular functions.
We have so held in the Matter of D , Interim Decision No. 1330, decided
by BIA on April 3, 1964.
The special inquiry officer considering the factors other than the
bona fides of the respondent in his entry into the United States as a
nonimmigrant, seizes upon the factor that the respondent was completely
truthful in describing the circumstances under which he gained admission
to the United States. The special inquiry officer characterizes his
candor as refreshing and concludes that he should not be punished for
such truthfulness.
This Board has carefully reviewed the record herein, together with
representations made by the trial attorney on appeal. Furthermore, we
have given thorough consideration to the brief of counsel for the
respondent. We are not concerned herein with matters of material
misrepresentations inasmuch as that charge has not been lodged in the
present proceeding. Our sole consideration is directed to the proper
exercise of discretion in a case such as this where there has been a
flagrant disregard by the respondent of the lawful visa procedures. We
concede the respondent is statutorily eligible for the relief he seeks.
Refreshing though as his candor may be, we cannot ignore nor can we
condone the method he has used to seek permanent residence into this
country. We do not think that under these circumstances section 245 was
placed into the law to avoid the properly authorized visa issuing
procedures of the American consuls abroad. Desirable as his residence
in the United States might be, we deem it appropriate that such
residence should be attained in the proper manner. We re-assert the
important fact that bona fides of an applicant for relief under this
section in his securing of a nonimmigrant visa for entry into the United
States is a persuasive factor in the exercise of discretion as provided
to the Attorney General for the consideration of the applications under
section 245. In this particular case we find that the circumstances do
not warrant a favorable exercise of that discretion. Accordingly, the
following order will be entered.
ORDER: It is ordered that the appeal of the trial attorney be
sustained and that the application of the respondent for relief under
section 245 of the Immigration and Nationality Act be denied as a matter
of discretion.
Respondent, who has never been lawfully admitted to the United States for permanent residence, is ineligible for suspension of deportation under section 244(a)(1), Immigration and Nationality Act, as amended, since he is precluded from establishing continuous physical presence by reason of his brief absences of a few hours to Canada on 4 or 5 occasions during the statutory period. (Rosenberg v. Fleuti, 374 U.S. 449, inapplicable.)
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Entered without inspection.
The case comes forward on appeal from the order of the special
inquiry officer dated January 23, 1964, denying the respondent's
application for suspension of deportation and ordering that the
respondent be deported from the United States to the Republic of China
on Formosa.
The record relates to a native and citizen of China, 27 years old,
male, single, who last entered the United States sometime in 1958 at
Buffalo, New York, and was admitted upon his false representation that
he was a citizen of the United States, exhibiting a certificate of
citizenship which had been issued to him in support of this claim. He
has conceded that he originally entered the United States upon a knowing
false claim of United States citizenship. The evidence establishes and
the respondent has conceded that he is subject to deportation as charged
in the order to show cause.
The case was last before us on December 18, 1963, pursuant to
certification by the special inquiry officer of his decision dated June
25, 1963. On December 5, 1958, the respondent was inducted into the
United States Army and served until November 15, 1960. This period of
service was 20 days short of 2 years of service and he was transferred
to the Army Reserves apparently for the convenience of the Government.
We considered the question of whether the respondent was entitled to the
benefits of section 244(b) of the Immigration and Nationality Act, as
amended, by the Act of October 24, 1962 (76 Stat. 1247), which exempted
from the requirement of continuous physical presence in the United
States specified in the Act, aliens who had served for a period of 24
months in an active duty status in the Armed Forces of the United
States. We held that respondent was not within the exception set forth
in section 244(b) of the Act because he had not in fact served the full
24 months required by that section. /1/
The evidence establishes that while he resided at Buffalo, New York,
the respondent had made 4 or 5 short visits to Canada during the period
1955 to 1958, and was readmitted by exhibiting his certificate of
citizenship and falsely claiming United States citizenship. In our
order of December 18, 1963, we remanded the case for consideration in
the light of Rosenberg v. Fleuti, 374 U.S. 449 and for such other action
as might appear appropriate.
The respondent testified that on the occasion of each of his 4 or 5
visits to Canada from December 1955 to December 1958, he traveled to
Fort Erie, Ontario, Canada, by bus and remained there a few hours each
time, staying overnight once for the purpose of visiting, going to the
movies, and things of a similar nature. The case of Rosenberg v.
Fleuti /2/ interpreted the term entry as defined in section 101(a)(13)
as "any coming of an alien into the United States, from a foreign port
or place * * * except that an alien having a lawful permanent residence
in the United States shall not be regarded as making an entry into the
United States for the purposes of the immigration laws if the alien
proves to the satisfaction of the Attorney General that his departure to
a foreign port or place * * * was not intended by him * * *.' Inasmuch
as Fleuti had been admitted to the United States as a lawful permanent
resident before his brief visit to Mexico, the court extended the intent
exception provided for in section 101(a)(13) to cover a brief, casual
trip to Mexico and ruled that the alien in that case had not made a
meaningful departure disruptive of his physical presence in the United
States. However, Fleuti was a lawful permanent resident in the United
States and the definition in section 101(a)(13) applied to him. In the
instant case the respondent had never been lawfully admitted for
permanent residence and the Fleuti case is not deemed applicable.
Inasmuch as the respondent is not within the exceptions set forth in
section 244(b) of the Act, he must establish that he has been physically
present in the United States for a continuous period of not less than 7
years immediately preceding the date of his application on June 25,
1963. The record establishes that he has been absent from the United
States for 4 or 5 visits during the period from December 1955 to
December 1958. The statute makes it clear that to qualify for
suspension the respondent must have been in the United States without
any absence, no matter how brief for the continuous period. /3/ The
case of J M D , 7 I. & N. Dec. 105, involved an alien whose absence from
the United States during the statutory period was caused by his military
service. The requirement of continuous physical presence is now
dispensed with by section 244(b) of the Immigration and Nationality Act,
as amended, in the case of an alien who now serves for 24 months in
military service. The case of McLeod v. Peterson, 283 F.2d 180, also
cited by counsel in his brief, involved an alien who departed upon
erroneous advice of an Immigration Service Officer. There were present
in that case peculiar equitable considerations, which excused the
absence, not present in the instant case. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of Louie, Int. Dec. No. 1310 (December 12, 1963).
(2) 374 U.S. 449.
(3) United States ex rel. Bruno v. Savoretti, 133 F.Supp. 3 (W.D.
Mo., 1955) affirmed 235 F.2d 801 (8th Cir., 1956); Matter of S R , 6 I.
& N. Dec. 405; Matter of Z A N , 5 I. & N. Dec. 298, but see Wadman v.
Immigration and Naturalization Service, 18, 645 (9th Cir., March 26,
1964).
Respondent, admitted to the United States for permanent residence in 1916, convicted in 1939 and again in 1961 of a crime involving moral turpitude, who last entered the United States in 1962 upon his erroneous claim of United States citizenship following a brief absence of a few hours to Canada to attend a funeral, is eligible for the exercise of the discretionary authority contained in section 212(c), Immigration and Nationality Act, since it is not necessary that respondent's return to the United States have been an "entry' under Rosenberg v. Fleuti, 374 U.S. 449, for the purposes of a grant of relief under section 212(c), which section makes no reference to "entry' but states "returning to a lawful unrelinquished domicile'.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of two crimes involving moral turpitude after entry not
arising out of a single scheme of criminal misconduct, to wit: (1)
Breaking and entering a building in the nighttime with intent to commit
larceny therein; (2) larceny by conversion 8 U.S.C. 1251(a)(4) .
Respondent is male, married and 54 years old. He was admitted to the
United States for permanent residence on July 4, 1916, at the age of 7
years, accompanied by his mother, father, one brother (Antonios), and
one sister (Besine). Respondent was last admitted on June 12, 1962,
from Canada on a claim of United States citizenship following a visit of
a few hours to attend a funeral. The special inquiry officer found that
the record establishes that respondent was born in Canada, that he is an
alien, and that he is deportable on the charge stated above, conviction
of two crimes involving moral turpitude after entry, not arising out of
a single scheme of criminal misconduct.
There was an issue regarding respondent's claim of United States
citizenship, which was resolved against him by the special inquiry
officer. Four exhibits relating to respondent's place of birth are in
the record. Exhibit 7 is his birth registration, naming the parents,
and the fact that they were married in Lebanon. It omits the place of
the child's birth but the special inquiry officer believed that the
registration would not have been made where it was if the child had been
born outside the country. Other answers given on the registration form
seem to assume birth in the home, and the mother, "Lizzie Edwards', gave
and certified the information. Exhibit 8 is a photostatic copy of the
naturalization application of respondent's mother, listing the names and
places of birth of each of her children, including respondent. The
mother is the best witness to the place of the child's birth, and she
states that he was born in Canada on October 27, 1908. His baptismal
certificate from St. Philips Church, Petrolia, Ontario, omits to state
the place of his birth but shows his baptism on December 30, 1908, at
Petrolia, Ontario. Exhibit 10 is the record of lawful admission Form
I-404A of respondent, showing his entry at Detroit, Michigan, on July 4,
1916, with his parents and a brother and sister, Antonios and Besine.
This record states that respondent's place of birth was Petrolia,
Ontario, Canada. It shows further that one sister, Monzar (Monze), was
already in Detroit. There is no record of the entrance or place of
residence at that time of James. Two other children were born to
respondent's parents in Detroit at later dates. The Board finds on the
basis of these exhibits and the entire record that respondent was born
in Canada at Petrolia, Ontario, on October 27, 1908.
Respondent was convicted on a plea of guilty in 1939 of breaking and
entering in the nighttime with intent to commit larceny. He was placed
on probation for 4 years and ordered to make restitution of $225. The
record discloses that on November 24, 1943, respondent had paid only $66
of the restitution and that he was before the court on a violation of
probation warrant. His probation officer stated that the complainant
would accept $50 in full payment of the remaining restitution owed.
Exhibit 12 shows that on April 15, 1942, respondent was discharged to
join the Army.
Respondent was arrested for larceny by conversion and obtaining money
under false pretenses. He was convicted on the larceny charge on
October 5, 1961, and placed on probation for 3 years, charged $75 costs
and ordered to make $450 restitution. Respondent was engaged in
operating a business of selling freezers and a food plan. He testified
that he had a number of salesmen in his employ, and that his
difficulties came about because many of the purchasers abandoned their
payments. Respondent's reserves with the bank were not sufficient to
cover the losses.
The special inquiry officer granted respondent adjustment of status
under section 249 of the Immigration and Nationality Act, ordering that
a record of lawful admission for permanent residence be made as of July
4, 1916, and that these proceedings be terminated. In connection with
this adjustment of status it was necessary to grant respondent a waiver
of excludability under section 212(g) of the Immigration and Nationality
Act because of respondent's inadmissibility for conviction of the 2
crimes set forth above. The Immigration and Naturalization Service
appeals from this order, contending that section 249 is not appropriate
under these circumstances, and that the waiver under section 212(g)
should not be granted respondent, because it should be unconditional,
not subject to conditions and revocations attached thereto by the
special inquiry officer. The Service contends further that respondent
has not established the good moral character required of an applicant
for adjustment under section 249, and that his deportation would not
result in extreme hardship to his United States citizen spouse. The
order of the special inquiry officer of March 20, 1963, will be
withdrawn, but these proceedings will be terminated under section 212(c)
/1/ of the Immigration and Nationality Act.
In granting respondent's application for registry under section 249
of the Immigration and Nationality Act, although there is a record of
his lawful admission for permanent residence, the special inquiry
officer followed Matter of R , 8 I. & N. Dec. 598 (Ass't. Comm., March
9, 1960), wherein the Assistant Commissioner held that a prior record of
lawful admission for permanent residence does not preclude adjustment of
status under section 249, where the alien's immigration status later
became unlawful as the result of illegal entry. The special inquiry
officer quoted the Assistant Commissioner's statement that "a subsequent
illegal entry vitiates the prior record of lawful admission, and if the
alien is otherwise eligible, he may be granted the benefits of section
249'. We have held to the contrary in several decisions since Matter of
R . In Matter of M P , 9 I. & N. Dec. 747 (BIA, June 21, 1962), we held
that an alien whose original entry was for "lawful permanent residence'
has not "changed his status' under section 101(a)(20) of the Immigration
and Nationality Act /2/ by having become excludable or deportable. We
found that the record of his admission for lawful permanent residence is
available within the meaning of section 249, that any other
interpretation "would render ineffective any waivers of inadmissibility
now provided by the immigration laws.'
In Matter of Preciado-Castillo, Int. Dec. No. 1230 (BIA, July 6,
1962), we found that registry under section 249 is not available for an
alien who was admitted for permanent residence and who subsequently
became deportable for causes arising after entry. We stated that
section 249 was not available to Preciado, for the reasons that there
existed "a record of lawful entry which has not been vitiated by the
respondent's subsequent deportability on criminal grounds'.
In Matter of Da Silva, Int. Dec. No. 1268 (BIA, February 21, 1963),
the Board held that an alien lawfully admitted to the United States for
permanent residence, who subsequently became deportable because of
convictions of crimes involving moral turpitude, is statutorily
ineligible for adjustment of status under section 245 of the Immigration
and Nationality Act, as amended. In that decision we drew an analogy
between adjustment under section 249 and under section 245. We pointed
out that if the interpretation of the special inquiry officer were
permitted (granting adjustment under section 245 in these
circumstances), section 244(a)(5) suspension of deportation would be
abandoned. We concluded that Congress did not eliminate section 244(
a)(5), with its more rigorous requirements, and did not, therefore,
intend section 245 to have as broad an application as the special
inquiry officer's interpretation. We said "it seems clear than section
245 was intended to perform no other function than to permit
nonimmigrants to obtain permanent residence status without leaving the
United States.' The Board concludes in the instant case that Edwards'
1960 entry cannot be used as the basis for a grant of section 249 relief
from deportation.
The Board will exercise the discretion contained in section 212(c) of
the Immigration and Nationality Act in the alien's behalf. The
authority of the Board to grant this form of relief from deportation
under the present circumstances was considered in Matter of S , 6 I. &
N. Dec. 392 (BIA, November 24, 1954; Atty. Gen., March 15, 1955), which
is similar to the instant case. The reasoning of that decision disposes
of most of the issues here. S had the advantage that he had no arrests
or convictions for crime of any kind in the United States in the
ten-year period preceding the decision.
Section 212(c) of the Immigration and Nationality Act requires that
the alien must have been "lawfully admitted for permanent residence.'
Respondent was admitted to the United States for permanent residence on
July 4, 1916, although he states that he lived here with his father for
several years before that time. He proceeded to Canada voluntarily and
was returning on June 12, 1962, to an unrelinquished domicile of 7
consecutive years. His last crime was committed October 5, 1961, so
that he was inadmissible at the time of his last entry. He claimed to
be a citizen, and there is some basis in the record for believing that
respondent thought he was a United States citizen. We have held that
when an alien claims citizenship in good faith he has not made an entry
without inspection. The Service representative felt that the fact that
respondent had seen his baptismal certificate at the time of his
marriage should have corrected his belief that he was born in the United
States. However, the baptismal certificate, while it comes from
Petrolia, Ontario, omits to state the place of respondent's birth,
although it shows the place of his baptism. The fact of respondent's
birth in Canada is established by several declarations of the mother in
the possession of the Immigration and Naturalization Service. However,
these documents (Exhs. 8 and 10) probably were not available to
respondent until this proceeding was commenced.
Respondent stated that his parents and other persons from Lebanon
came to Detroit where an uncle owned a large tenement house and a
door-to-door selling operation. These people were provided merchandise
by the uncle, which they sold in Canada and elsewhere by house-to-house
canvassing. Respondent testified that he believed that he was born in
Detroit at a time when his mother was there to obtain merchandise, and
that he was later taken to Petrolia for baptism. He pointed to the fact
that nearly 2 months elapsed after his birth before he was baptized,
that usually persons of the Roman Catholic faith do not permit so long a
period to elapse between an infant's birth and the time of his baptism.
Respondent served 3 years in the United States Army, including 28 to
30 months in the Aleutian Islands, and was discharged in December 1945.
He testified to 3 separate occasions while he was in the Armed Forces
when a commanding officer requested that any one who was not naturalized
make arrangements for naturalization. He testified that he considered
himself a citizen by birth and for that reason did not take advantage of
the opportunity when it was offered. Respondent also stated that he has
voted in the United States since 1932 when he was 23 years old, a period
of over 30 years. These facts do not establish that respondent is a
United States citizen, but we believe that he probably made the claim in
good faith.
The Service representative stated that the respondent has a "long
police record'. Since 1942 when respondent was discharged from
probation in order to enter the army, he has been arrested 3 times
(according to Exh. 12) for violation of the state gambling laws. In
1947 the charge was dismissed. In 1952 he was sentenced to 1 year,
placed on probation and charged $50 costs. In 1955 he was given a
sentence of 2 years on probation. Respondent served no time in jail
except while awaiting trial. His only sentences have been to probation,
costs and restitution.
In granting respondent the waiver of inadmissibility provided in
section 212(g), the special inquiry officer found that respondent's
deportation would result in extreme hardship to his United States
citizen wife. They have been married since 1946, and respondent's wife
is self-supporting. They have no children. Respondent is now working
for his wife's brother for a small salary. However, respondent has
lived practically his entire life in the United States, and on the basis
of the entire record deportation would be a harsh punishment. We will
order that the proceedings be terminated.
ORDER: It is ordered that the order of the special inquiry officer
of March 20, 1963, be and is hereby withdrawn.
It is further ordered that the proceedings be terminated pursuant to
the discretion contained in section 212(c) of the Immigration and
Nationality Act, and that the alien be considered as having been
lawfully admitted to the United States for permanent residence at
Detroit, Michigan, on June 12, 1962, notwithstanding his inadmissibility
at that time as one who was convicted of 2 crimes involving moral
turpitude, to wit: breaking and entering in the nighttime with intent
to commit larceny therein, and larceny by conversion (1939 and 1961),
subject to revocation in the discretion of the Attorney General after
hearing if the alien subsequently commits any offense.
(1) Section 212(c), Immigration and Nationality Act provides: Aliens
lawfully admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of 7 consecutive years,
may be admitted in the discretion of the Attorney General without regard
to the provisions of paragraph (1) through (25) and paragraphs (30) and
(31) of subsection (a). Nothing contained in this subsection shall
limit the authority of the Attorney General to exercise the discretion
vested in him under section 211(b).
(2) Section 101(a)(20) of the Immigration and Nationality Act
provides: The term "lawfully admitted for permanent residence' means
the status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws, such status not having changed.
On November 12, 1963, this Board terminated proceedings in this
matter, pursuant to the discretion contained in section 212(c) of the
Immigration and Nationality Act, and ordered that the alien be
considered as having been lawfully admitted to the United States for
permanent residence on June 12, 1962, notwithstanding his
inadmissibility for conviction of the crimes set forth above. We found
the respondent ineligible for the grant of adjustment under section 249
and the waiver of excludability under section 212(g) of the Immigration
and Nationality Act granted by the special inquiry officer.
It is the position of the Immigration Service in this motion that
respondent did not make an "entry' into the United States on his return
from Canada on June 12, 1962, as the term "entry' is interpreted in
Rosenberg v. Fleuti, 374 U.S. 449, 10 L.ed.2d 1000. If the respondent
made no entry (under the rule of Fleuti), declares the motion, section
212(c) cannot be invoked in respondent's behalf, because section 212(c)
applies only to grounds of exclusion. If there was no "entry' there can
be no ground of inadmissibility under section 212(a), and section 212(c)
cannot be invoked to waive a nonexistent ground of inadmissibility. The
Service motion will be denied.
It is the opinion of the Board that for the purposes of a grant under
section 212(c) it is not necessary that the respondent's return to the
United States have been an "entry' under the rule of Fleuti. Section
212(c) makes no reference to an "entry', but states, "Aliens lawfully
admitted for permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation, and who are returning
to a lawful unrelinquished domicile of 7 consecutive years, may be
admitted in the discretion of the Attorney General . . .'. (Emphasis
supplied.) It cannot be denied that Edwards was returning to a lawful
unrelinquished domicile of more than 7 consecutive years.
Section 241 describing the "General Classes of Deportable Aliens'
refers in subsections (1), (2), (3), (4), (6), (7), (8), (10), (11),
(12), (13), (14), (15), and (16) to various activities following "entry'
which render an alien deportable. Entry is defined in section
101(a)(13). However, section 212(c) makes no reference to "entry' or
requirement that respondent have made an "entry'. In the absence of
Rosenberg v. Fleuti, supra, there would be no question but that this
respondent would be eligible for a grant of section 212(c). The
contention of the Service would extend the Fleuti doctrine to a
situation which certainly was not contemplated by the Court in issuing
this decision. We fail to see that extending this doctrine to a grant
under section 212(c) is necessary, desirable, or justifiable.
The issues raised under point 2(b) of the Service motion, "Waiver
under Section 212(c) -- Discretion', have been considered in our prior
decision, and there is no need to review these matters here. The motion
will be denied.
ORDER: The motion for reconsideration is denied.
Since an indeterminate sentence is a sentence for the maximum term, respondent's indeterminate sentence to imprisonment in the California Institution for Women for an offense punishable under applicable California statute by imprisonment from 6 months to 14 years, is a sentence to confinement for a year or more within the meaning of section 241(a)(4), Immigration and Nationality Act.
CHARGES:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) -- Convicted of crime involving moral turpitude, committed within 5 years after entry, and sentenced to confinement for a year or more, to wit: issuing check without sufficient funds (1963).
Lodged: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant (temporary visitor for pleasure) -- Remained longer.
The special inquiry officer, in a decision dated December 10, 1963,
directed that the respondent be deported to Canada, alternatively to
England, on the lodged charge only. The trial attorney appealed to this
Board from that decision, urging that the charge stated in the order to
show cause should also have been sustained.
The record relates to a female alien, a native of England and subject
of Great Britain, who has been admitted to Canada as a "landed
immigrant.' She last entered the United States from Canada on or about
November 15, 1962. She was then admitted as a nonimmigrant temporary
visitor for pleasure, for a period not to exceed six months. She has
remained here since May 15, 1963, without authority.
The foregoing establishes respondent's deportability on the charge
lodged at the hearing. This has been conceded and is unchallenged here.
The point needs no further discussion.
Deportability on the charge contained in the order to show cause is
predicated on respondent's September 16, 1963, conviction, in the
Superior Court of California for the County of San Diego, on her plea of
guilty, of the crime of "issuing check without sufficient funds,' in
violation of section 476a of the California Penal Code. In substance,
said section makes it a crime to willfully issue checks without
sufficient funds, with intent to defraud.
The foregoing crime involves moral turpitude because one of its
essential elements is intent to defraud (People v. Pitts, 196 CA2d 841;
Jordan v. DeGeorge, 341 U.S. 223; Portada v. Day, 16 F.2d 38). It was
committed in 1963, which is within 5 years of respondent's last entry in
1962. She has been confined since her conviction, but the period
thereof does not yet amount to one year.
Accordingly, the only issue before us is whether respondent's
sentence "to imprisonment in the California Institution for Women for
the term prescribed by law' (emphasis supplied) is a commitment "for a
year or more.' This judgment was in conformity with section 1168a of the
California Penal Code, which reads:
Every female convicted of a public offense, for which
imprisonment in any State prison is now prescribed by law shall,
unless such convicted female is placed on probation, a new trial
granted, or the imposing of sentence suspended, be sentenced to
detention at the California Institution for Women, but the court
in imposing the sentence shall not fix the term or duration of the
period of detention.
Under such a statute, the judgment of the court properly consists of
a recital of the offense, a designation of the prison to which the
defendant is committed, and nothing more (People v. Mendosa, 178 C.
509, 173 P. 998). However, the failure of the judgment here to have
included the phrase "for the term prescribed by law' would not have
rendered the order of commitment invalid (People v. Youders, 96 CA2d
562, 215 P.2d 743).
The limits of "the term prescribed by law' as applied to this case
are determined by sections 476a and 18b of the California Penal Code.
The former, which makes it a crime to issue checks without sufficient
funds, provides for imprisonment in the county jail for not more than 1
year, or in the state prison for not more than 14 years. The latter, a
minimum term statute of general application, provides that the duration
of the respondent's period of detention may be as short as 6 months (see
In re Humphrey, 64 CA 572, 222 P. 366).
The crux of this case, therefore, is whether, under California law,
the minimum or maximum limit of an "indeterminate sentence' of from 6
months to 14 years is determinative. On the strength of the following
authorities, we hold that it is a sentence for the maximum term.
The courts of California have uniformly held that an indeterminate
sentence such as the one we are confronted with here is in legal effect
a sentence for the maximum term (People v. Lumbley, 68 P.2d 354). In so
doing, they have pointed out that the statutes dealing with the
Indeterminate Sentence Law do not infringe the right to due process of
law because a judgment pursuant thereto is in legal effect a sentence
for the maximum term and is, therefore, certain and definite (In re
Bandmann, 51 C.2d 388, 333 P.2d 339) rather than being unconstitutional
as "void for vagueness' (People v. Leiva, 285 P.2d 46). They have also
pointed out that the pronouncing of sentence thereunder is a judicial
act; that the punishment which the sentence pronounces comes from the
law itself, and is established or provided for by the legislature; and
that the act does not confer upon the Board of Trustees of the
California Institution for Women, post, the right to determine the
punishment any given crime shall bear (In re Larsen, 283 P.2d 1043).
The foregoing is consistent with Federal court rulings (see U.S. ex.
rel. Paladino v. Commissioner, 43 F.2d 821) to the effect that
indeterminate sentences have long been held to be sentences for the
maximum terms for which the defendant might be imprisoned. In so
ruling, those courts have pointed out that this is the construction not
only placed upon sentences where a maximum and a minimum period of
imprisonment appears in the sentence, but also upon sentences where no
term is mentioned and the statute sets the maximum. They have further
pointed out that such sentences would afford a basis for deportation
under section 19 of the Act of February 5, 1917 (former 8 U.S.C. 155)
even though a duly designated administrative authority might
subsequently greatly diminish, indeed almost totally abate, the period
of imprisonment. Finally, they have pointed out as their reason the
fact that in all such cases the defendant can be brought back and
required to serve the remainder (maximum) of the sentence. /1/
It is also consistent with the following precedent decisions of this
Board to the effect that an indeterminate sentence is measured by the
possible maximum term of imprisonment. One of these (Matter of R , 1 I.
& N. Dec. 209) involved an alien convicted of assault with a deadly
weapon under the law of Utah; the sentence imposed was "for the
indeterminate term as prescribed by law'; and the statute provided for
imprisonment not to exceed 5 years, or by fine not to exceed $1,000, or
by both -- and apparently with no minimum being set. Another (Matter of
R , 1 I. & N. Dec. 540) concerned an alien convicted, inter alia, of
petty larceny; he was sentenced to imprisonment in the penitentiary of
the County of New York, there to be dealt with according to law; and
the statute under which he was convicted prescribed the term of
imprisonment not to exceed 3 years.
It is not inconsistent with the prior precedent decision of this
Board (Matter of V , 7 I. & N. Dec. 577) relied on by the special
inquiry officer. In that case, the court, instead of imposing sentence
and suspending its execution, suspended the imposition of the sentence.
This was not the case here.
Support for our conclusion in this case, if such is necessary, is
found in the procedural provisions of the California Penal Code
controlling the sentencing of female offenders, and the judicial
decisions clarifying them. Thus, section 3325 of the California Penal
Code imposes the duty of fixing the terms of imprisonment for female
convicts, within the foregoing minimum and maximum limits, on the Board
of Trustees of the California Institution for Women. As is the case
with the Adult Authority, which is responsible for adult male convicts
under section 3020 of the California Penal Code, that board determines
and redetermines, after the expiration of 6 months from and after the
actual commencement of imprisonment, what length of time the convict
shall be imprisoned. However, there is no time prescribed within which
the prisoner's sentence must be fixed or even considered (In re Quinn,
25 C.2d 799, 154 P.2d 875), so that if no such action is taken the term
is the maximum. If, on the other hand, such action is taken and the
term set at less than the maximum, it is only tentative and may be
changed, i.e. -- increased (In re Costello, 262 F.2d 214). Also, the
subsequent fixing of the actual term of imprisonment by the duly
designated administrative officials is merely a limitation of the term
and not a setting thereof (In re Daniels, 106 CA 43, 288 P. 1109),
otherwise the statute would be unconstitutional as conferring judicial
powers on a nonjudicial body (see People v. Kostal, 159 CA 2d 444, 323
P.2d 1020).
Respondent's only contention throughout has been that she should not
be deported because her crime was not serious. The answer to this
argument, however, is that if the judge had not found her crime serious
he had the alternative under the statute of placing her on probation
instead of sentencing her to confinement, which would have been an act
of clemency rather than punishment (see 13 Stan. LR 252 and 340), but he
did not so exercise his discretion. In any event, this Board is bound
by the record of the respondent's conviction, as hereinbefore discussed.
Finally, under the foregoing circumstances the respondent just is not
eligible for discretionary relief in any form. Deportation, therefore,
is required.
ORDER: It is ordered that the Service appeal be and the same is
hereby sustained.
It is further ordered that the alien be deported from the United
States to Canada, alternatively to England, on the charge stated in the
order to show cause as well as on the charge lodged at the hearing.
(1) The same reason has been cited in upholding the deportation,
under the present law, of an alien given an indeterminate sentence
(Colorado) of up to 10 years, but who only served 7 months and 5 days --
Petsche v. Clingan, 273 F.2d 688.
An adoptive brother is eligible for preference quota status under
section 203(a)(4), Immigration and Nationality Act, as amended, if he
qualifies as an adopted child of the same parents of the petitioner.
(Matter of M , 6 I. & N. Dec. 180, superseded.)
The case comes forward on appeal from the order of the District
Director, Boston District, dated December 13, 1963, denying the visa
petition for the reason that Matter of M , 6 I. & N. Dec. 180, holds
that brothers and sisters through adoption are not brothers and sisters
within the meaning of section 203(a)(4) of the Immigration and
Nationality Act.
The petitioner, a native of China and a naturalized citizen of the
United States, 35 years old, female, seeks preference status under
section 203(a)(4) of the Immigration and Nationality Act on behalf of
her adopted brother, a native and citizen of China, born January 31,
1949 (CR38-1-3). Section 203(a)(4) provides for preference quota status
on behalf of a brother or sister of a citizen of the United States.
An office memorandum dated December 13, 1963, accompanies the denial
of the visa petition. The memorandum reflects that the petitioner
applied for admission to the United States at Boston, Massachusetts on
March 26, 1952; that her father Fong Tan Yow, given name, Fong Gong
Wah, marriage name, was then living in the Philippine Islands and her
mother Jee (Gee) (Shee) was living in Mar Det Village; that she did not
have any brothers or sisters, either natural or adopted; that she had
only one son, Chin Doo Taw, born CR38-4-2 (April 29, 1949) in Chew Jung
Village and living with her mother in Mar Det Village. Subsequently,
the petitioner submitted visa petitions for her mother, Fong Wai Lan
also known as Gee Wai Lan, her daughter, Chin King Toy, and an adopted
brother, Fong Sui Kee. In support of these visa petitions she submitted
her own affidavit, and an affidavit of her husband and a copy of an
adoption agreement to substantiate the claimed relationships. Inasmuch
as this was the first time she had mentioned she had a daughter and an
adopted brother, the petitioner was interviewed under oath on December
12, 1963.
The admitted that she never had a son by the name of Chin Doo Taw but
merely showed him on the record because everyone else was doing the same
thing. She also testified that she had two natural sisters and one
adopted brother. Her explanation for not previously reporting their
existence was that since they were residing on the mainland of China
when she came to the United States she thought that if she disclosed
their existence some harm might come to them. The visa petitions filed
in behalf of the petitioner's mother and daughter were approved on
condition that the blood typing of the petitioner and her husband and
the beneficiary be found compatible. However, it was recommended that
the visa petition filed on behalf of the adopted brother, Fong Sui Kee,
be denied on the basis of the decision in Matter of M , 6 I. & N. Dec.
180.
It is noted that Matter of M , supra, was decided on June 23, 1954,
and held that brothers and sisters through adoption were not "brothers'
or "sisters' within the meaning of section 203(a)(4) of the Immigration
and Nationality Act and were not eligible for preference quota status
under that section. However, subsequently there was enacted the Act of
September 11, 1957 (71 Stat. 639, 8 U.S.C.A. 1101, P.L. 85 316 (85th
Cong., 1st Sess.) S. 2792) which provided in section 2 thereof an
addition to section 101(b)(1) of the Immigration and Nationality Act
consisting of subparagraph (E) to include in the definition of the term
"child' a child adopted while under the age of 14 years if the child has
thereafter been in the legal custody of, and has resided with, and
adopting parent or parents for at least two years.
Senate Report No. 1057 (85th Cong., 1st Sess.) to accompany S. 2792,
stated that at present the term "child' does not include adopted
children and it is believed the proposed amendment is desirable to
prevent hardship in cases where the child is chargeable to a heavily
oversubscribed quota and would not otherwise be able to accompany his
adoptive parents. Adequate safeguards were included to prevent abuses.
Presumably, this meant the limitation to adoption while under 14 years
of age and the requirement of custody and residence thereafter for two
years by the adopting parent or parents as well as the termination of
any immigration right, privilege or status as to the natural parent of
such adopted child.
The amendment of September 11, 1957, equated the status of a properly
adopted child to that of a "child' as defined in section 101( b)(1) for
immigration purposes. /1/ In view of the enactment of this amendatory
statute in 1957 subsequent to our decision in Matter of M , 6 I. & N.
Dec. 180 (1954), and the recognition therein for the first time of an
adopted child as a "child' it is believed that the matter should be
reexamined in view of the legislative intent and history to determine
whether an adopted brother or sister is included within the term
"brothers' or "sisters.'
The term "brothers' or "sisters' as used in section 203(a)(4) of the
Immigration and Nationality Act is not defined and recourse may be had
to the statutory construction adopted to similar words in other
legislation to determine whether adopted brothers and sisters are
included within that terminology. /2/ Adoption is usually regarded as
creating the same relationship between the adoptive parent and the
adopted child as between a natural parent and his child. /3/ By
statute, in most jurisdictions, but not a common law, a person may adopt
a child; and in such a case, unless there are statutory provisions to
the contrary, the rights, duties and obligations arising from the
artificial relationship will be substantially the same as those arising
from the natural relation of parent and child. Where the artificial
relation of parent and child is created by adoption under the statute,
the relationship will be the express provisions of the statute, and even
independently of such provisions, give rise to substantially the same
rights, duties, and liabilities as arise out of the natural
relationship. /4/
In the case of Woodward v. U.S., 341 U.S. 112 (1951) the Supreme
Court was considering an appeal from a decision of the Court of Appeals
for the Eighth Circuit (185 F.2d 134) which had held that an adopted
brother was not a permissible beneficiary under section 602(g) of the
National Service Life Insurance Act of 1940. /5/ The Court of Appeals
for the Third Circuit has reached a directly contrary conclusion under
similar circumstances in Carpenter v. U.S., 168 F.2d 369 (1948). The
grant of certiorari by the Supreme Court was limited to the question of
whether a daughter by adoption is within the permissible class of
beneficiaries under section 602(g) of the National Service Life
Insurance Act of 1940. The Court held (p. 113) that "The short of the
matter is that Congress has not expressed itself in regard to the
question before us. In resolving the conflict of decisions, we must
determine whether the word "brother,' as used in this Federal statute,
restricts the policy holder's choice of beneficiaries to brothers of the
blood. We are persuaded by the policy against drawing such a
distinction in the family relationship. Contemporaneous legal treatment
of adopted children as though born into the family is a manifestation of
that policy. * * * Consequently, we hold that a brother by adoption is
a permissible beneficiary under section 602(g) of the National Service
Life Insurance Act of 1940.' /6/
Section 2 of the Act of September 11, 1957, which added subparagraph
(E) to the definition of the term "child' in section 101(b)(1) of the
Immigration and Nationality Act placed Congressional approval on a
construction which would adopt the prevailing view that adoption is
usually regarded as creating the same relationship between the adoptive
parent and adopted child as between a natural parent and a natural
child. Although there has been some holdings to the contrary, the
Supreme Court in the case of Woodward v. U.S., 341 U.S. 112 (1951)
settled the divergence in the lower courts as to whether a brother or
sister by adoption is a "brother' or a "sister' within the meaning of
the term as used in the National Service Life Insurance Act in the
affirmative. In the light of the legislative history and purpose of the
amendatory legislation of the Act of September 11, 1957, we are
convinced that there has been enunciated a Congressional policy against
drawing any distinction between an adopted child or adopted brother and
sister and "child' or "brother' and "sister.' We regard Matter of M , 6
I. & N. Dec. 180, as no longer applicable.
In the instant case there is evidence to establish that the
beneficiary, who was born on January 31, 1949, was adopted either on
March 1, 1949, as testified by the petitioner, or on July 19, 1949, as
evidenced by the adoption agreement. In any event the beneficiary
appears to qualify as an adopted child of the same parents of the
petitioner and is considered an adopted brother. As such, he qualifies
for eligibility for a preference quota visa under section 203(a)(4) of
the Immigration and Nationality Act. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the visa
petition be approved for preference quota status under section 203(a)(
4) of the Immigration and Nationality Act on behalf of the beneficiary.
(1) Matter of A , 8 I. & N. Dec. 242.
(2) Matter of R , 5 I. & N. Dec. 438 (1953) concluded that the term
"sons' or "daughters' included adopted sons or daughters within the
provision of section 203(a)(4) but that holding, which involved a
beneficiary who was 24 years old at the time of his adoption, is no
longer applicable because the present definition in section 101(b)(1)(
E) defines "adopted child' as one adopted while under the age of 14
years.
(3) 2 CJS 446.
(4) Madden, J. W., Persons and Domestic Relations 354 (1931).
(5) This section provided that insurance shall be payable only to a
widow, widower, child, parent, brother, or sister of the insured.
(6) Cited with approval in Thomas v. United States, 189 F.2d 495, 504
(6th Cir., (1951); Berryhill v. United States, 199 F.2d 217, 218 (6th
Cir., 1952); U.S. v. Rock, 200 F.2d 357, 358 (D.C. Cir., 1952).
Adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied as a matter of discretion to a nonimmigrant visitor, a native and citizen of Colombia, who by his conflicting and evasive testimony failed to establish that he did not intend to circumvent the normal immigrant visa-issuing process by the United States consul abroad.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant visitor for pleasure, remainder longer.
In a decision dated December 20, 1963, the special inquiry officer
denied the application of the respondent for adjustment of status under
section 245 of the Immigration and Nationality Act, but granted him the
privilege of voluntary departure. From that denial of section 245
relief the respondent has appealed to this Board.
The respondent is a 22-year-old unmarried male alien, native and
citizen of Colombia, who last entered the United States on April 10,
1963, at which time he was admitted as a visitor for pleasure. He was
thereafter permitted to remain in the United States until October 7,
1963, and has remained beyond that time without authority. He concedes
that he is deportable on the charge contained in the order to show
cause. The only issue before this Board is the denial by the special
inquiry officer of the respondent's application for adjustment of status
to that of an immigrant for permanent residence in the United States.
The special inquiry officer in his opinion found that the respondent was
statutorily eligible for this relief but concluded that such relief was
not warranted as a matter of discretion. Respondent through counsel
contends that such relief should have been granted as a matter of
discretion and further argues that the insertion into the record of
Exhibit 9 (Form I-483) was prejudicial and legal error. These points
will be considered seriatim.
The special inquiry officer found that the respondent's testimony was
conflicting and evasive. We have thoroughly studied the record in this
case. Throughout the respondent's testimony there is a pattern of
evasion, conflict and distortion. We are not persuaded that the
respondent did not intend to avoid the immigrant visa issuing process by
way of section 245 adjustment procedure. His answers on important
phases of the case such as his intention when he applied for the
visitor's visa, his employment in Venezuela, his employment in the
United States, the length of time he intended to remain in the United
States, the documents he brought with him to the United States and his
letter of employment from Babcock-Coleman, are neither conclusive nor
responsive. Certainly they lack the quality of forthrightness required
of an alien seeking a benefit from the United States.
Counsel recites the case of Barrios (Interim Decision #1264) in her
appeal. That case rested on a different factual situation because
Barrios, the alien applicant, at the time he secured his nonimmigrant
visa from the United States consular officer had every intention of
complying with the terms of his temporary admission and this was not
controverted. We do not find such an intention in the instant case.
The testimony of this respondent, flavored as it is with equivocation
and contradiction, does not sway us to a contrary conclusion.
We now proceed to counsel's second argument regarding the insertion
into the record of Form I-483 and her claim that such was prejudicial
and legal error. This contention merits short comment only. The
special inquiry officer properly stated that in the exercise of
discretion it is important to consider all the circumstances in the
case. He noted that the American Embassy at Bogota, Colombia, had
recommended on the Form I-483 that the application for status as a
permanent resident be denied. He further commented that the
recommendation of course, is in no way binding on the special inquiry
officer but can be given some consideration in the field of discretion.
With this comment we agree. In In and of itself the recommendation by
the consul has no weight in the approval or denial of the application
for adjustment. Exhibit 9 with which the respondent's counsel is
greatly concerned states under heading II. To Requesting Office --
"There is information of record in this office indicating the alien's
prima facie ineligibility (subject to personal interview) for an
immigrant visa under section 212(a)(19), in that: he made willful
misrepresentations in obtaining a nonimmigrant visa.' This, claims
counsel, has caused prejudice to the respondent's case. We do not think
so. The statement as quoted and as contained in Exhibit 9 to our way of
thinking legally adds up to zero for it states that even the prima facie
case of ineligibility is contingent upon a personal interview. We
cannot conceive how the special inquiry officer, a person trained in the
law, could attach any weight or significance to such a statement.
Furthermore, aside from the denial by the special inquiry officer based
generally on the respondent's actions, evasive testimony and general
uncooperativeness, the information contained in Exhibit 9 is of minimal
importance at best. Lastly, counsel for respondent has failed to
indicate with specificity any instance of prejudice caused by the
insertion of this exhibit into the record.
In summary, the decision of the special inquiry officer is a result
of the exercise of his discretion. Our study of this record and our
consideration of the representations made by counsel on appeal lead us
to the conclusion that the special inquiry officer's decision was
unquestionably fair. To hold otherwise would be an invitation for
nonquota and open quota intending immigrants to render useless the
legally designated visa issuing functions of the United States consuls
abroad. This we will not do. Accordingly, the following order will be
entered.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Since applicant's inadmissibility under section 212(a)(22) by virtue
of having filed DSS Form 301 in 1942 was known to, and considered by,
the Congress in approving the suspension of his deportation in 1959, and
since the creation of a record of lawful permanent residence pursuant
thereto removed any known exclusion ground which existed prior to that
date, his application for advance section 212(c) waiver of such ground
of inadmissibility is denied, as unnecessary.
The case comes forward pursuant to certification by the district
director of his decision dated January 8, 1964, dismissing the
application for the advance exercise of permission to return to an
unrelinquished domicile pursuant to section 212(c) of the Immigration
and Nationality Act.
The record relates to a native and citizen of Turkey, 51 years old,
male, who entered the United States on May 24, 1937, as a nonimmigrant
treaty trader and has resided here continuously since that date. On
November 11, 1942, he applied for relief from United States military
service by executing and filing DSS Form 301 with the Selective Service
Board, as a result of which his military draft classification was
changed on June 21, 1943 from Class I-A to Class IV-C.
On June 28, 1957, deportation proceedings were commenced against the
alien charging that he remained in the United States beyond December 26,
1956, without authority. In the deportation proceedings it was brought
out that the alien was lawfully married on June 26, 1943, to a
native-born United States citizen and they have a minor native-born
United States citizen child. The alien's wife suffered from ulcers and
a form of anemia and his child was under medical care for a kidney
ailment. He is self-employed in the import-export business. The alien
showed substantial assets in this country, presented evidence that he
had been continuously present in the United States for at least the
preceding 7 years, and no criminal record was shown.
The alien in those deportation proceedings testified that before he
filed Form DSS 301 he consulted with the Consul General of Turkey and
was informed that under Turkish law if he served in the Armed Forces of
the United States he would not be able to return to Turkey, his property
there would be confiscated, and his mother and brother might suffer
discrimination in Turkey. On the advice of the Consul he therefore
executed the Form DSS 301. Thereafter, when Turkey became a
cobelligerent on February 23, 1945, the alien was reclassified and
placed in Class I-A but he was removed from that class because of
overage.
The special inquiry officer, while not condoning his action in
requesting exemption from military service as a neutral alien, in view
of the fact that his uncontradicted testimony indicated that such action
was prompted by the advice of the Consul General of Turkey and that he
was willing to serve in the Armed Forces of the United States after
Turkey became a cobelligerant, the claim of exemption should not bar him
from a grant of suspension or deportation in view of the other
meritorious factors in the case. On July 8, 1957, the special inquiry
officer ordered that the deportation of the alien be suspended under the
provisions of section 244(a)(1) of the Immigration and Nationality Act,
the case was certified to the Regional Commissioner, Northeast Region,
for review and on September 16, 1959, the suspension of deportation of
the alien was approved by Congress.
The applicant now wishes to proceed abroad temporarily in connection
with his import-export business. While he urges that the creation of a
record of lawful permanent residence in 1959 vitiates any known grounds
of excludability existing at that time, he has however filed this
application in an endeavor to resolve any question as to his possible
inadmissibility under section 212(a)(22) of the Immigration and
Nationality Act.
Suspension of deportation under section 244 of the Immigration and
Nationality Act requires, in the event of a favorable decision, that the
case be reported to Congress and unless the Senate or House of
Representatives passes a resolution that it does not favor the
suspension of such deportation, the deportation of the alien is
suspended and the deportation proceedings cancelled by the Attorney
General.
It can thus be seen that the discretionary relief of suspension of
deportation is legislative as well as administrative in character.
Indeed, prior to the enactment of the Alien Registration Act of June 28,
1940, which vested in the Attorney General the discretionary authority
to suspend deportation and to grant permanent residence to specified
classes of aliens, the only relief in many cases was the passage of a
private relief bill in Congress. /1/ It was held in Matter of J . 6 I.
& N. Dec. 287, that where Congress, in enacting private legislation
intended to permit the alien to gain lawful permanent residence in the
United States and with full knowledge of prior deportation, authorized
reentry by a private bill waiving the provisions of the Act of March 4,
1929, relating to permission to reapply after arrest and deportation,
the alien did not become deportable under section 241(a)(13) of the
Immigration and Nationality Act by reason of his prior misconduct.
Analagous cases are found in the recommendation by a court against
deportation on criminal grounds, which was held to immunize an alien
from exclusion on those grounds. /2/ It has also been held that grounds
for exclusion known at the time of approval of an alien's application
for creation of a record of lawful admission pursuant to section 249 of
the Act was waived for the purposes of reentry. /3/
In the instant case, when the alien's case was considered for
suspension of deportation, the matter of his inadmissibility under
section 212(a)(22) on the ground that he was ineligible to citizenship
by virtue of filing a Form DSS 301, was considered and discussed in
granting suspension of deportation. It may be noted that the present
Act differs from its predecessor, the Act of June 28, 1940, in that
ineligibility to citizenship is no longer a bar to suspension. Inasmuch
as the order granting suspension of deportation discussed the ground of
inadmissibility arising under section 212(a)(22) of the Act, the
creation of a record of lawful permanent residence on September 16,
1959, removed any known ground for exclusion which existed prior to that
date. The application for advance permission to return to an
unrelinquished domicile pursuant to section 212(c) of the Immigration
and Nationality Act is therefore considered unnecessary.
Parenthetically it may be observed that the applicant has lawful
permanent residence only since September 16, 1959, and would not be
eligible for such relief. /4/ The order of the district director will
be approved.
ORDER: It is ordered that the order of the district director dated
January 8, 1964, dismissing the application for advance permission to
return to an unrelinquished domicile pursuant to section 212(c) of the
Immigration and Nationality Act be and the same is hereby approved.
(1) W. M. Besterman, Commentary on the I. & N. Act, 8 U.S.C.A. 65, 66
(2) Matter of H and Y , 3 I. & N. Dec. 236; Matter of K , 9 I. & N.
Dec. 121.
(3) Matter of S , 8 I. & N. Dec. 288.
(4) Matter of S , 5 I. & N. Dec. 116.
Respondent, a native of British Guiana, has not established that because of her racial origin (Negro), her religious beliefs (Roman Catholic) and her affiliation with a minority political party in British Guiana she would be subject to physical persecution within the meaning of section 343(h), Immigration and Nationality Act, if deported to that country.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant (student) -- Remained longer.
The special inquiry officer, in a decision dated January 7, 1964:
granted the respondent's application for voluntary departure; provided
for her deportation to England, alternatively to British Guiana, on the
charge contained in the order to show cause in the event of her failure
to so depart; and denied her application for temporary withholding of
deportation to British Guiana. The appeal from his decision, which
brings the case before this Board for consideration, will be dismissed.
The record relates to a married female alien, a native of British
Guiana and subject of Great Britain, who last entered the United States
on or about July 29, 1962. She was then admitted as a nonimmigrant
student for a period until September 30, 1963. She has remained in the
United States since the expiration of the temporary period of her
admission without authority. Accordingly, her deportability on the
above-stated charge is established. It is also conceded.
The special inquiry officer granted the privilege of voluntary
departure to this respondent, whose husband resides in British Guiana
and whose son lives in England. He took this action despite the fact it
appeared to him that the respondent is reluctant to depart from the
United States and that her financial ability to leave here without
expense to the Government is speculative. Under the circumstances
outlined in said official's opinion, which need no repetition here, we
think his action in this respect was proper.
The only issue remaining to be resolved here is whether the
respondent has met the burden resting upon her in this proceeding of
establishing that she will be subjected to physical persecution if
deported to British Guiana. (Matter of B , A -15804394, BIA, August 28,
1963; Int. Dec. No. 1298.) For the reasons hereinafter stated, we find
that she has not.
The main thrust of the respondent's argument is that she will be
subjected to persecution because of her political viewpoint. Her fear
in this respect stems from the fact that about 3 years ago she joined
the United Front (Force) party in British Guiana. She asserts that
there are 3 such parties in British Guiana, the Peoples Progressive
party of Premier Cheddi B. Jagan, the Peoples National Congress of
Forbes Birnkam and the United Front (Force) party of Peter D'Aguiar.
All 3 parties are represented in the legislature there, but the Peoples
Progressive party headed by Jagan is the majority party. She asserts
that Dr. Jagan is communistic and communist supported. However, she has
submitted no proof that the members of the minority parties in British
Guiana are persecuted by the majority party simply because of their
affiliation. The police power in British Guiana is still under the
control of the British Government and the Colonial Secretary. There is
no showing of record that the government has persecuted or caused
physical harm to anyone because of political opinion. We find no
support for the respondent in the fact that a senator of her party made
a broadcast severely criticizing the majority party and Dr. Jagan's
posture in British Guiana, inasmuch as said senator returned to her own
country after the broadcast with no apparent fear of any consequences as
a result of her broadcast; and this respondent holds no position of
significance in the party so as to be too closely associated with the
broadcast in any event.
The respondent's second point is that she is a Negro, whereas the
East Indian element in British Guiana is the bulwark of the majority
party in the Parliament and that there has been bloodshed, strife and
physical injury to persons and property because of the two groups
engaging in recriminations against one another. We agree with the
special inquiry officer that what the respondent refers to are acts of
mob violence; that it matters little as to which group in which
instance was the aggressor; and that it is conceivable that a
completely innocent bystander may be inadvertently injured during a riot
or other lawless and violent activities of such a nature. However, this
is an attempt to equate physical injury arising out of political discord
with physical persecution, and the terms are not necessarily the same.
The provisions of this statute do not cover injuries which may befall
one who happens to be in the vicinity of an outbreak of mob violence,
even though the mob is aroused by factors commonly associated with
persecution of the nature outlined (Matter of D , A-12386631, BIA, March
20, 1963; Int. Dec. No. 1270). This is particularly true here, since
it is established in the record that the police power in British Guiana
is still under the control of the Government of Great Britain and that
when fights have occurred between Negroes and East Indians there the
government troops have appeared and stopped the violence.
Respondent has asserted that she would be physically persecuted in
British Guiana because she is of the Roman Catholic faith, whereas Dr.
Jagan is against religion. However, the respondent admitted that all
churches of all faiths are open in British Guiana and that all of the
people are free to attend and pray in the church of their choice. This
right, too, is obviously protected by the British forces in control in
British Guiana.
Finally, the respondent has asserted no other reasons why she would
fear physical persecution if deported to British Guiana, the alternate
country of deportation specified by the special inquiry officer.
Accordingly, and in view of the foregoing, the special inquiry officer's
decision is affirmed. Careful review of the record reveals to us no
basis whatsoever for counsel's intimations of improper procedure in the
conduct of the respondent's deportation hearing.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Voluntary voting in the political elections of a foreign state
(Ireland) constitutes an overt act manifesting clearly and unambiguously
a decision to accept the nationality of such foreign state which was
previously acquired by operation of law and, consequently, results in
loss of United States citizenship under section 2, Act of March 2, 1907.
The applicant, born in Ireland on December 10, 1940, has applied for
a certificate of citizenship, claiming to have acquired citizenship at
birth under section 1993, R.S., as amended, by virtue of her mother's
naturalization on December 23, 1929, and prior residence in the United
States. /1/
The applicant's mother was born in Ireland on February 14, 1898, and
arrived in the United States on May 5, 1922. She was naturalized on
December 23, 1929, in the Superior Court at Salem, Massachusetts. She
returned to Ireland in 1931, married the applicant's father on August
24, 1932, and continued to reside in Ireland until February 7, 1960,
when she was admitted to this country as an immigrant.
Whether or not the applicant acquired citizenship at birth depends
upon whether her mother was still a citizen of the United States on the
date of the applicant's birth, or whether she had been expatriated prior
thereto under the provisions of the Act of March 2, 1907, by being
naturalized as a citizen of the Irish Free State. /2/
Shortly after the mother's arrival in the United States, the Irish
Free State Constitution of December 6, 1922, granted citizenship of that
State to persons born in Ireland and who were domiciled within the
jurisdiction of the Irish Free State at that time. /3/ The applicant's
mother, then residing in the United States, was not so domiciled and did
not acquire Irish citizenship thereby. Subsequently, the Irish
Nationality and Citizenship Act of 1935 granted Irish citizenship to
every person not a citizen by virtue of the Irish Constitution, who was
born before December 6, 1922, in Ireland, if permanently residing in the
Irish Free State at that time. /4/ Clearly, the applicant's mother
acquired citizenship of the Irish Free State under the provisions of
this Act, being then married and residing in the Irish Free State with
her husband.
Where one automatically acquired a foreign citizenship by operation
of foreign law, there is a naturalization within the literal coverage of
the Act of March 2, 1907, /5/ and the applicant's mother was naturalized
in the Irish Free State within the meaning of that Act. However,
section 2 of the 1907 Act applies only to voluntary expatriation, and
where a citizen of the United States acquires a foreign nationality
through operation of law, and not upon his own application, his United
States citizenship is not lost under the 1907 Act unless he indicates
acceptance of the foreign nationality by some voluntary affirmative act.
The naturalization by operation of law is regarded as in effect a
continuing offer, the acceptance of which completes the act of
naturalization in a foreign state made expatriating by said Act. Such
an act of acceptance must be an overt voluntary act which manifests
clearly and unambiguously a decision to accept the foreign nationality
previously acquired by operation of law. /6/
Did the mother perform such an act of acceptance of the Irish
nationality conferred upon her? She has testified that she voted in
Irish elections commencing in 1937 and 1938, and continuing up until
1957; that such elections were for a president and members of the
government body; that she voted because representatives of the
candidates came to her and asked her to vote; that she was told that
she was on the Irish registry and entitled to vote so she voted; that
no one compelled her, or used any pressure upon her to vote; and that
she did not think there was anything wrong with it. The record
establishes further that when she voted, she knew that she was a citizen
of the United States because she had gone to Ireland as a citizen; she
had "the paper'; and that when requested to vote, had raised a question
as to whether she could vote because she was an American citizen. It
was her belief that only Irish citizens were entitled to vote. Such
belief is supported by the Irish constitution and Irish law. /7/
The applicant's mother having voluntarily performed an act for which
only citizens of the Irish Free State were eligible, it remains to be
determined whether the acts of voting clearly and unambiguously
manifested a decision to accept the Irish nationality which had been
conferred upon her by operation of law. /8/ Voting has been
characterized as indicating:
* * * a desire on the part of the participant to make himself a
part of a government by assisting in the choice of those who are,
by this mandate, to govern its affairs. The participation in an
election is merely one method of expressing one's allegiance to
the State in which the election is held. /9/
Further,
taking an active part in the political affairs of a foreign
state by voting in a political election therein is believed to
involve a political attachment and practical allegiance thereto
which is inconsistent with continued allegiance to the United
States. * * *. /10/
In the face of such expressions as to the nature of the act of voting
in a political election, it can only be concluded that voting in the
political elections of a foreign state is an overt act manifesting
clearly and unambiguously a decision to accept a foreign nationality
previously acquired by operation of law. Since the record establishes
that the applicant's mother voted voluntarily in the Irish elections in
1937 and 1938, at a time when she was aware that she was a citizen of
the United States, /11/ it is concluded that she was expatriated in 1937
/12/ under the Act of March 2, 1907, and was not a citizen of the United
States when the applicant was born.
ORDER: It is ordered that the application for a certificate of
citizenship herein be and the same hereby is denied.
(1) 48 Stat. 797. "Any child hereafter born out of the limits and
jurisdiction of the United States, whose father or mother or both at the
time of the birth of such child is a citizen of the United States, is
declared to be a citizen of the United States; but the rights of
citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the United
States previous to the birth of such child, * * *.'
(2) Sec. 2 of the Act of March 2, 1907 (44 Stat. 1228) provides in
part: "That any American shall be deemed to have expatriated himself
which he has been naturalized in any foreign state in conformity with
its laws, * * *.'
(3) "Article 3. Every person, without distinction of sex, domiciled
in the area of the jurisdiction of the Irish Free State (Saorstat
Eireann) at the time of the coming into operation of this Constitution
who was born in Ireland or either of whose parents was born in Ireland
or who has been ordinarily resident in the area of the jurisdiction of
the Irish Free State (Saorstat Eireann) for not less than seven years,
is a citizen of the Irish Free State (Saorstat Eiream) and shall within
the limits of the jurisdiction of the Irish Free State (Saorstat
Eireann) enjoy the privileges and be subject to the obligations of such
citizenship: Provided that any such person being a citizen of another
State may elect not to accept the citizenship hereby conferred; and the
conditions governing the future acquisition and termination of
citizenship in the Irish Free State (Saorstat Eireann) shall be
determined by law.'
(4) Irish Nationality and Citizenship Act of 1935. Sec. 2 -- (4):
"Every person who is not a citizen of Saorstat Eireann by virtue of
Article 3 of the Constitution but was born before the 6th day of
December 1922 either in Ireland or of parents of whom at least one was
born in Ireland shall . . . (a) if such person is at the passing of this
Act or becomes thereafter permanently resident in Saorstat Eireann be
deemed to be a natural born citizen of Saorstat Eireann.'
(5) Op. Atty. Gen., Matter of Picone, Int. Dec. #1259.
(6) Ibid.
(7) Article 16.1.2 of the Irish Constitution declares, "Every citizen
without distinction of sex who has reached the age of twenty-one years
who is not disqualified by law and complies with the provisions of the
law relating to the election of members of Dail Eireann, shall have the
right to vote at an election for members of Dail Eireann.'
The Consulate General of Ireland has informed this Service that:
"The Electoral Act, 1923 provides in Paragraph 1, of Part 1
that every person without distinction of sex who is an Irish
citizen and has attained the age of twenty-one years and is not
subject to any legal incapacity is entitled to be registered once
as a Dail elector in one but not more than one constituency in
Ireland. Paragraph 3 of Part 1 declares that every person
registered as a Dail elector for a constitutency, shall, while so
registered, be entitled to vote at any Dail election for the
constituency, and also to vote in that constituency at every
Referendum.'
In this connection, it is to be noted that citizenship is generally a
prerequisite to the right to vote. Barasanti v. Acheson, 103 F.Supp.
1011, aff'd 200 F.2d 562.
(8) Voting in a foreign election prior to January 13, 1941, was not,
of itself, an act of expatriation under then existing law. Matter of M
, 1 I. & N. Dec. 537.
(9) Uyeno v. Acheson, 96 F.Supp. 510, 514.
(10) Perez v. Brownell, 356 U.S. 44, 54; 78 S.Ct. 568.
(11) Cf, Matter of C S , 9 I. & N. Dec. 670.
(12) Matter of Di P , 9 I. & N. Dec. 660.
Respondent's reentry in October 1962 upon a false claim to United States citizenship following a 10-day vacation in Mexico constitutes an entry under section 101(a)(13), Immigration and Nationality Act, upon which to predicate a ground of deportation Rosenberg v. Fleuti, 374 U. S. 449, distinguished.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of crime involving moral turpitude committed within 5 years
after entry, and sentenced for a year or more; to wit: Interstate
transportation of stolen motor vehicle.
Respondent is 21 years old, single, male, alien, a native and last a
citizen of Hungary. He last entered the United States at El Paso,
Texas, in October 1962, and on this entry is based the charge set forth
above, that respondent was convicted of a crime involving moral
turpitude committed within 5 years after entry. The special inquiry
officer found that respondent is not deportable on this charge, because
respondent's last entry did not constitute an "entry' under Rosenberg v.
Fleuti, 374 U.S. 449, 10 L.ed.2d 1000 (June 17, 1963). The acting trial
attorney appeals to this Board from the special inquiry officer's
decision, alleging that this entry is an entry as required by the
statute and is not within Fleuti. The special inquiry officer's order
will be withdrawn and the record reopened for consideration of
respondent's application under section 243(h).
Respondent was born in Hungary on February 14, 1943. He believes
that six months after his unauthorized departure he lost his Hungarian
citizenship. He entered the United States on December 30, 1956, and was
accorded the status of lawful permanent resident as of the date of his
original arrival under the Act of July 25, 1958, relating to Hungarian
refugees. His last entry was in October 1962 from Mexico at El Paso,
Texas.
Respondent was convicted for check forgery in 1957 at the age of 15.
He states that he was sentenced to imprisonment for 15 months. The
record of that conviction is not a part of this record, but the special
inquiry officer states that respondent was treated as a juvenile
delinquent at that time (Tr., p. 16). On February 8, 1960, respondent
was sentenced to "a period not to exceed his minority' in the United
States District Court, District of Minnesota, upon a plea of guilty of
having committed an act of juvenile delinquency in the matter of
unlawfully transporting a stolen car in interstate commerce. He was
then 17 years of age, so the period of his sentence was 4 years. He was
paroled on February 1, 1962. Respondent was sentenced on February 6,
1963, for 2 years or "until his deportation could be accomplished,' for
a second offense of transporting a stolen car, committed on or about
December 5, 1962. The respondent has been in the United States about 7
years, and he has spent almost 5 years of this time in penal
institutions.
Karl testified that he made several trips into Canada and Mexico,
that upon one return he was delayed about 45 minutes by the inspection
routine. Thereafter, he claimed birth in the United States when he
returned from Canada and Mexico, because he "didn't want to mess with
the inspection routine if I showed my green card' (exh. 12). He
testified that his trips to Canada at Vancouver were usually just
overnight, because he had friends there. His vacation trip to Mexico in
October 1962 was his only extended absence from the United States. He
and two friends took a motorcycle trip to Mexico City for a period
variously described as a week, 10 days, or 2 weeks. He had his alien
registration (green) card with him, but, having found it less
time-consuming to claim birth in the United States, he did not show his
card.
Respondent contends that he cannot be deported for having committed a
crime within 5 years after entry because his return to the United States
was after a brief casual trip to Mexico and did not constitute an
"entry' under Rosenberg v. Fleuti, supra. The trial attorney contends
that the instant case is distinguishable on its facts from Fleuti for
the following reasons: (1) Karl's entry in October 1962 was made after
a 10-day vacation to Mexico, whereas Fleuti went into Mexico and
returned after "about a couple hours,' to quote the Supreme Court
decision. (2) Karl made an illegal entry into the United States from
Mexico by a false claim of citizenship, whereas Fleuti on his return
presented himself for inspection and was admitted as a lawful returning
resident alien. While the Supreme Court decision does not state
specifically that Fleuti returned legally, the Circuit Court of Appeals
states that Fleuti "then re-entered as a returning resident alien.' /1/
(3) The appeal seeks to establish that respondent's entry without
inspection was, to quote the Supreme Court, "contrary to some policy
reflected in the immigration laws.' (4) Fleuti was returning to a lawful
permanent residence, whereas the respondent was in the United States
after several prior entries on a false claim to citizenship; the trial
attorney contends that following these entries without inspection,
respondent's residence in the United States was no longer lawful, and
that to gain the benefit of the Fleuti decision, an alien must be
returning to a lawful residence. These contentions were also argued
before the Board by the Service representative.
The Supreme Court in Fleuti first refers to "the kind of brief
absence from the country that characterizes the present case.' The Court
again refers to the length of time Fleuti was absent from the United
States as follows: "The question we must consider, more specifically,
is whether Fleuti's short visit to Mexico can possibly be regarded as a
"departure to a foreign port or place . . . that was not intended,'
within the meaning of the exception to the term "entry' created by the
statute.' The Court refers also to the facts that Fleuti made "his
afternoon trip,' and that he was an alien "long resident in this country
after lawful entry' who "merely stepped across an international border.'
The Court again states, "One major factor relevant to whether such
intent can be inferred is of course the length of time the alien is
absent.' (Emphasis supplied throughout.) The special inquiry officer
concluded that respondent's temporary absences of from one to 10 days
from the United States were not "meaningfully interruptive of his
permanent residence status,' notwithstanding his "evasion of proper
inspection as an alien upon his return from most of those temporary
visits abroad,' and that "the respondent's intent at time of departure
must be the critical test of whether his permanent residence status' was
interrupted under the Fleuti decision.
We disagree with the special inquiry officer's conclusion that the
respondent's return in October 1962 does not subject him to the
consequences of an "entry' sufficient to sustain the present charge. We
think, under the particular circumstances of this case, that an absence
of 10 days is too long to permit Karl to bring himself within the rule
of Fleuti. His vacation trip took him as far as Mexico City and is in a
very different category from a visit of a few hours which began and
ended the same afternoon. We are not prepared to state at this time
just where the line will be drawn on the issue of how long the visit
must have been to make the return constitute an "entry.' The length of
the visit is, of course, not the only factor. Respondent intended to
resume his residence in the United States at the end of his vacation,
but this intent alone certainly does not preserve to him the right to
return to the United States illegally, knowingly evading inspection,
following a 10-day absence from the country. We cannot stretch the
Fleuti doctrine far enough to cover the facts in this situation.
The Supreme Court quotes with approval from Di Pasquale v. Karnuth,
158 F.2d 878 at 879, wherein Judge Hand remarked that "it is . . .
important that the continued enjoyment of . . . our hospitality once
granted, shall not be subject to meaningless and irrational hazards.'
Karl, however, subjected himself repeatedly to the hazards of exclusion
or deportation by making several departures and illegal entries by
claiming birth in the United States. If the immigration statutes and
the established techniques of inspection are to have any meaningful and
rational application, it must be held that Karl made an entry from a
foreign port or country under section 101(a)(13) of the Immigration and
Nationality Act when he returned from Mexico in October 1962.
We are not prepared at this time to hold, as requested by the
Service, that every entry without inspection following a visit outside
the United States, no matter how brief, completely neutralizes the
Fleuti holding.
The case will be remanded to the special inquiry officer to permit
him to make a determination on respondent's application for withholding
of his deportation to Hungary under section 243(h) on the ground that
his deportation to that country would subject him to physical
persecution. Because he intended to terminate the proceedings, the
special inquiry officer did not dispose of this application.
ORDER: It is ordered that the special inquiry officer's order of
November 22, 1963, terminating these proceedings be and is hereby
withdrawn.
It is further ordered that the record be reopened for determination
of the respondent's application under section 243(h) of the Immigration
and Nationality Act.
(1) Fleuti v. Rosenberg, 302 F.2d 652 at 653 (9th Cir., 1962).
(1) A naturalized United States citizen's employment with the Cuban armed forces from February 1959 to January 1961 in connection with which he was scheduled to take the oath of allegiance, was paid by the Cuban army, gave orders to members of the army, wore the army uniform except for a period from March to June 1959, and received a dishonorable discharge from the army in January 1961, constitutes entering the armed forces of Cuba within the meaning of section 349(a)( 3), Immigration and Nationality Act.
(2) Respondent lost his United States citizenship under section 349( a)(3) of the Act, having failed to establish that his entry into the armed forces of Cuba was involuntary, since he did not avail himself of the opportunity to protest the wearing of the Cuban army uniform to the United States consul, and following a visit to the United States in March 1959 he returned voluntarily to Cuba and to his employment there, taking his family with him.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Immigrant, no visa.
The special inquiry officer, finding respondent to be a United States
citizen at time of his last entry, terminated proceedings and certified
the case to the Board. The trial attorney asks that the special inquiry
officer be reversed and that the respondent be ordered deported on the
charge stated above. We find that respondent was an alien at the time
of his entry and shall reopen proceedings so that the special inquiry
officer may consider the charge.
The issues are whether respondent entered the armed forces of Cuba;
and if he did, whether his conduct was voluntary.
Respondent, a 43-year-old married male, a native of Cuba, was
admitted to the United States for permanent residence with his wife and
daughter on May 18, 1949. He became a citizen by naturalization on
April 25, 1958. The Service contends that respondent lost United States
citizenship by entering the armed forces of Cuba, and therefore needed a
visa on the occasion of his last entry (June 16, 1961) when he was
admitted as a United States citizen. The Service relies upon section
349(a)(3) of the Act (8 U.S.C. 1481(a)(3) (1958)) which in pertinent
part divests a United States citizen of his nationality for --
entering, or serving in, the armed forces of a foreign state
unless, prior to such entry or service, such entry or service is
specifically authorized in writing by the Secretary of State and
the Secretary of Defense: * * * /1/
Respondent admits that he wore the uniform of and worked with the
Cuban armed forces, but claims (1) that he did not "enter' its armed
forces, and (2) that his employment was under duress. The special
inquiry officer divided respondent's employment into two separate
periods. The special inquiry officer found that the first period did
not constitute entering the armed forces, and that while the second
period did, it did not result in expatriation because it was under
duress. The trial attorney contends that the second period was
voluntary; in this, the Service representative concurs, and contends in
addition, that the first period constituted entering and resulted in
expatriation.
Except for a memorandum from the State Department concerning a
conversation with the respondent in February 1959, the facts of record
concerning respondent's service are derived from his sworn statement
made before the Service on June 8, 1962, and his testimony at the
deportation hearing on August 21, 1963.
Three returns by respondent to Cuba must be considered. The first
return was on January 3, 1959. The record is not clear about the
motivation for this return; it appears to have been occasioned by the
fact that respondent, a radio technician who had been a supporter of
Castro, was approached by Cuban revolutionaries shortly after Castro's
successful revolution and asked to contribute his technical skill.
Respondent stayed until January 14 when he came back to his family in
the United States (p. 6). The second return to Cuba was on January 19,
1959. Respondent's mother-in-law, an employee of the Cuban Government
who was in the United States to assist her daughter, a recent mother,
received word that she had been fired from her job. Respondent returned
to Cuba to help her get her job back (pp. 6-8); while so engaged, he
was approached by Comandante Fernandez, Cuban Chief of the
Communications Agency (Red Official de Communicaciones por Microndas
(ROCMIC)) who asked him to help for a period of three or four weeks.
Respondent agreed to stay for about a week and a half, but at the
request of his superior repeatedly extended the time for short periods
(pp. 8-9). Finally, in March 1959, being quite willing to remain in
Cuba (pp. 30-31), respondent decided to set up his business in Cuba,
reasoning that he would help the Cuban Government and at the same time
make a lot of money for himself. He went to the United States to get
his family and on March 23, 1959, returned with them to Cuba where he
remained until June 16, 1961, when he and his family came to the United
States. (During this period at a time not disclosed in the record,
respondent's wife came to the United States; she returned to Cuba to be
with her husband.)
The issue as to entering the armed forces of Cuba is raised by
respondent's insistence that he was not officially a member of the armed
forces because he had never taken an oath of allegiance to Cuba, and
because he wore an army uniform for a limited purpose only; i.e., to
enable him to give orders to military personnel.
A uniform was not worn when respondent started his employment (the
inspection of radio communications stations in the island and the
maintenance of these facilities); however, in January 1959 while
engaged in his employment, some source, not designated in the record (p.
9), either denied him use of army facilities or asked why he had not
joined the army (p. 9). As a result of this incident, respondent was
told by his superior that although he did not have to join the army, he
had to wear the army uniform so that the soldiers would take orders from
him, for they would not take orders from one in civilian clothing (pp.
9, 26-7). On about February 14, 1959, respondent was given the uniform
of a second lieutenant. A day or two later (pp. 1, 26), respondent
called at the United States Embassy in Havana and asked what effect
wearing of the uniform would have upon his United States citizenship (p.
11; exh. 2, p. 6). His recollection is that he was informed that if he
did not take the oath of allegiance to the Cuban flag, he would not lose
United States citizenship by his army work, and that the effect of his
wearing the uniform was not known to the Embassy official who, however,
promised to make inquiry concerning this issue and inform respondent
(pp. 11-12). This call at the Embassy is the subject of a memorandum
made on February 16, 1959, by the Embassy employee who interviewed
respondent (exh. 3). The memorandum reveals that the Embassy employee
told the respondent that service in the revolutionary forces was not
itself expatriatory, but that if respondent wished to retain his United
States citizenship, he should not continue in the service of the
revolutionary forces upon their integration into the regular Cuban Army
(an event the respondent had told the writer of the memorandum would
begin on February 20, 1959). /2/ The memorandum further reveals that
respondent asked about permission to serve so that he would be exempt
from loss of United States citizenship even if he served in the Cuban
Army, and that this permission was denied. The memorandum was presented
to respondent at the hearing; he stated it was "almost exactly' what he
had explained to the Embassy employee (p. 12).
Respondent continued to wear his uniform until sometime in March (the
special inquiry officer believes it was in the first half but the record
is actually not clear as to whether it happened before or after he
brought his family to Cuba (pp. 9-10, 26)) when charges that he was
plotting against the Cuban Government were brought against him, and by
written order "like a regular order from the army' (p. 10) he was told
he could no longer wear the uniform (pp. 9-10). /3/ The period of
employment coincident with the wearing of the uniform (February 14,
1959, to March 1959) is termed by the special inquiry officer the first
period of possible army service.
The second period of possible service began in July 1959. The
respondent, then working out of uniform in the radio shop (p. 26), was
told by his superior that a decision on the accusations had been made in
his favor and that he was now free to wear the uniform (p. 11).
Respondent protested but was required to wear the uniform (pp. 11, 26-8,
34-5). He wore the military uniform from July 1959 until January 15,
1961, when he was apparently detained under house arrest (p. 13). On
January 23, 1961, he was given a dishonorable discharge (p. 13).
Pertinent to the issue as to whether respondent entered the armed
forces are these additional facts. The wearing of the uniform
authorized respondent to give orders to others in the Cuban Army who
were working as half-civilian and half-army people, and to give orders
to Cuban military personnel, both those of lower in rank than a second
lieutenant and those higher (exh. 2, p. 5). In the beginning respondent
had an identification card which did not show him in uniform; this card
was replaced by one showing him in his army uniform, but he could not
recall whether it identified him as a member of the Cuban Army (p. 7,
exh. 2). Whatever papers he signed in the performance of his duties, he
signed as a member of the Cuban Army with the rank of a second
lieutenant (p. 7, exh. 2). Respondent was paid by the Cuban Government,
even during the period he was not permitted to wear his uniform (p. 6,
exh. 2). Respondent received the pay of a captain although he had the
rank of a lieutenant (p. 28). He never performed any "military duties'
(p. 29) but as part of his job paid civilians, using for this purpose a
payroll of $100,000. He stated that on three occasions he had been
ordered to take the oath of allegiance but that by arranging trips
outside the area during the periods when the oaths were administered, he
escaped taking an oath (pp. 12-13, 18-20). He denied he had ever taken
an oath to obey the orders of a superior in the Cuban Army or that he
had signed papers to obtain the right to wear the uniform (p. 34).
In addition to the defense that his employment did not constitute
entering the armed forces of Cuba, respondent advanced as a defense, the
claim that his employment with the army was under duress. Respondent
believed that he would have been jailed if he had refused to wear the
uniform (pp. 34-35). He stated that sometime in March, after he had
been instructed that he could no longer wear the uniform, he told his
superior that he was going to return to the United States but his
superior told him he would have to remain in Cuba (p. 10). A Service
contention that it was not fear of force, but rather fear that his
family would suffer a reduced income, that constituted respondent's
reason for not leaving his job, is based on respondent's answer to the
special inquiry officer's question as to whether in July 1959 respondent
was willing to work in his occupation for the Cuban Government without
wearing a uniform. The doubt raised by respondent's answer that he was
obligated to work because he was still receiving his pay (pp. 32-3) and
that he could have quit his job in July 1959 but that his wife and four
children would have been adversely affected (p. 33) is laid to rest by
his answer to additional questioning on the issue. Respondent flatly
stated he could not have quit in July 1959, that he had tried to but
that he could not have left (p. 33)). Respondent stated that on two or
three occasions he had tried to quit but had not been permitted to do so
(pp. 30, 33). Upon his return to Cuba with his family in March 1959,
respondent and his family were housed in a camp. As a safeguard against
the respondent's flight from Cuba, he was not permitted to leave the
camp together with his wife: one could leave only if the other
remained. He did not communicate this requirement to his wife because
he feared the news might make her nervous (p. 23). After respondent had
been cleared of the charges against him, he moved out of the camp and
thereafter, while his wife and he could go out together, they were
shadowed (pp. 23-24). During the period from March 1959 to June 1961 he
was warned not to go to the American Embassy (p. 22). After his
discharge, he was told to stay in Havana and was barred from government
employment (p. 14). His wife tried to arrange for his transportation to
the United States through the Swiss Embassy, but was unable to get an
interview (p. 14). On April 1, 1961, respondent was placed in a prison
where he was put to work in the water department (p. 14). On April 18,
1961, he was moved to another prison; he was released from this prison
by mistake. His wife had, at some undisclosed date, gone to the United
States to attempt to arrange for his return to the United States, she
had stayed a month and a half and then returned to Cuba (p. 25). After
respondent's release by mistake, she, through persistent efforts,
secured an interview for him with an official of the Swiss Embassy --
the Embassy which was representing the interests of the United States.
There, respondent who had a Cuban exit permit dated June 8, 1961,
obtained an authorization to enter the United States as a United States
citizen. Respondent was admitted as a citizen on June 16, 1961. These
proceedings were brought by order to show cause on August 7, 1963.
The special inquiry officer found that the Service had failed to
establish that respondent's government work in Cuba during the first
period (February 14, 1959, until March 1959) constituted entering the
armed forces. His conclusion was based on the following facts:
respondent had signed no papers, he had taken no oath of allegiance to
Cuba, and he had not in any other way evidenced an intention to accept a
commission in the Cuban Army. However, as to the second period (the
government work done by the respondent from July 1959 to January 1961)
-- the special inquiry officer found there had been an entering the
armed forces of Cuba. This conclusion was based on the following facts:
respondent wore the uniform of an army officer for about a year and a
half, he accepted orders from superiors in the armed forces and issued
commands to personnel under his jurisdiction, and his salary was paid by
the army. Although the special inquiry officer held that this later
period of employment constituted entering the armed forces, he held that
expatriation had not occurred because it had been under duress. The
reasons for this conclusion were that restrictions had been placed upon
respondent's liberty of motion and because, had he quit, he would have
been unable to support his family.
The trial attorney argues that the respondent's returns to Cuba were
voluntary and that his acceptance and performance of his duties of an
officer in the Cuban Army during the period from 1959 to 1961 were
voluntary. The trial attorney further contends that since respondent
voluntarily created the situation in which he found himself, he should
not be heard to complain that he continued to serve because of economic
necessity.
Respondent's reply brief states that the record has established that
respondent's wearing of the uniform was because of his fear of reprisals
against himself and his family and that the record establishes the
respondent avoided taking an oath of allegiance to the Cuban Government
and that he had no intention of serving in the armed forces.
At oral argument, the Service representative contended that
respondent's first period of employment constituted entering the armed
forces. He pointed out that the respondent had been dishonorably
discharged and concluded that a discharge could not have been given
unless the respondent has been a member of the armed forces. He
contends that respondent expatriated himself when he first went into
uniform in February 1959 and cites Marks v. Esperdy, 315 F.2d 673 (2d
Cir., 1963) (certiorari granted, 11 L.ed 2d 47, October 14, 1963). He
contends that even if respondent had been unable to leave Cuba during
the latter part of his stay, the fact that he returned to Cuba in March
after he had been compelled to wear a uniform is evidence that his
entering the armed forces was voluntary.
As to the second period of employment, the Service representative
contends that there was an absence of duress. He points out that the
respondent returned to the United States in 1959 although accusations
were pending against him (we have pointed out that the record is not
clear whether the accusations were made before or after the return on
March 23, 1959) and that respondent went back to the same employment
before he made the trip, again donning the uniform of the Cuban forces.
He contends that the fact that respondent returned to Cuba after he had
been compelled to wear a uniform is evidence that his service with the
Cuban forces started out voluntarily even if it later continued because
of fear of punishment. The Service representative concludes that
economic necessity was not a factor in respondent's continued employment
with the army because respondent could have found other employment. He
alleges that respondent worked as a civilian employee for the water
department of the government during a period of time and that he went
back to his army employment only because he made better money.
(Respondent worked for the water department as a prisoner; there is no
support for the statement that he served in the army after working in
the water department.)
We find that respondent entered the Cuban Army. We are unable to
make a distinction as to the nature of the respondent's employment
during the first and the second period. During both periods, respondent
was engaged in the same work, gave orders to members of the army, was
paid by the army, wore the same uniform, and was under the same
leadership. Respondent performed no act initiating the second period of
employment which could distinguish its beginning from the circumstances
surrounding his original employment with the armed forces. These facts
and the existence of a dishonorable discharge and the scheduling of the
taking of the oath are strong evidence that he was in fact a part of the
army. We, therefore, conclude that the Service has established that the
respondent entered the armed forces of Cuba in February 1959 and
remained there continuously until his dishonorable discharge, although
for a period from March 1959 to June 20, 1959, he was not permitted to
wear the uniform and performed services out of uniform.
We further conclude that respondent has failed to bear his burden of
establishing that his entry into the armed forces was involuntary. /4/
He departed from Cuba in March after he had been put in uniform and had
worn the uniform for about a month. He had not protested to the United
States consul about the wearing of the uniform although he had the
opportunity. He could have refused to return to Cuba; nevertheless, he
voluntarily returned and brought his family with him. He returned to
the same employment. Clearly, his return under such circumstances rules
out any basis for a claim of duress in either the original donning of
the uniform or the resumption in the wearing of the uniform. The fact
that respondent subsequently found restrictions upon his freedom chafing
does not make his entering the army involuntary.
We find respondent became expatriated under section 349(a)(3) of the
Act. We shall return the case to the special inquiry officer for
consideration of the charge in the order to show cause, and if the
charge is sustained, for consideration of applications for relief if any
are made.
ORDER: It is ordered that the outstanding order of the special
inquiry officer be and the same is hereby withdrawn.
It is further ordered that the proceedings be reopened for the
purposes stated in our opinion and for such further action as the
special inquiry officer may deem appropriate.
It is further ordered that the order of the special inquiry officer
be certified to the Board.
(1) We are concerned only with "entering' the armed forces of Cuba.
(2) The Rebel Army of Cuba after January 1, 1959, the date on which
Castro came to power, is considered the armed forces of a foreign state
as that term is used in section 349(a)(3) of the Act (Matter of M , 9 I.
& N. Dec. 402).
(3) Respondent testified that in March or April 1959 he was no longer
in sympathy with Castro (p. 10, exh. 2). (At the hearing he said it was
in August 1959 that he became disillusioned (p. 31).) He implied that he
had worked against Castro by giving information to an individual whose
wife worked in the United States Embassy in Cuba, and he revealed that
during an undisclosed period, apparently for sabotage, he had replaced
communications equipment in the amount of about $2,000,000 although it
was still satisfactory (p. 12, exh. 2).
(4) Section 349(c) of the Act, 8 U.S.C. 1481(c) (Supp. IV), reads in
pertinent part as follows: Whenever the loss of United States
nationality is put in issue in any action or proceeding commenced on or
after the enactment of this subsection under, or by virtue of, the
provisions of this or any other Act, the burden shall be upon the person
or party claiming that such loss occurred, to establish such claim by a
preponderance of the evidence. * * *
Designation of country of deportation within step 3 of section 243( a), Immigration and Nationality Act, is solely within the discretion of the Attorney General and there are no limitations as to priority or preference because of the order named in the statute.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer -- crewman
The respondent appeals from an order of the special inquiry officer
denying a motion to reopen the proceedings to permit a change in the
alternate order of deportation from the Netherlands to Hong Kong.
Counsel on appeal urges error in that the special inquiry officer has
arbitrarily directed the respondent's deportation to Netherlands whereas
the respondent is a Chinaman whose family resides in Hong Kong and he
was last a resident of Hong Kong.
The respondent has been found deportable as a nonimmigrant crewman
who remained in the United States longer than permitted. An order
entered by the special inquiry officer on November 4, 1963, granted the
respondent the privilege of voluntary departure in lieu of deportation.
The order also contained alternative orders of deportation to the
Republic of China on Formosa, the Netherlands and Hong Kong in the event
the respondent failed to depart when and as required.
A notice requiring the respondent's departure by December 10, 1963,
was forwarded to him on November 19, 1963. He failed to depart and a
warrant for his deportation was issued on December 23, 1963. The
District Director at New York was notified on November 6, 1963, that the
respondent would not be accepted for deportation by the Republic of
China on Formosa. The respondent has been advised that he will be
deported to the Netherlands.
Counsel maintains that since the respondent has travel documents
which will permit him to enter both Hong Kong and the Netherlands then
under such circumstances there should be proper standards for reaching a
determination as to which country the alien will be deported. Counsel
refers to the fact that this Board has designated certain standards to
guide the special inquiry officer in reaching a determination as to
whether the grant of voluntary departure is warranted. Matter of M , 4
I. & N. Dec. 626. Counsel maintains that although the statute (section
243(a), Immigration and Nationality Act, 8 U.S.C. 1253(a)) permits the
Attorney General a certain amount of discretion as to what country an
alien may be deported, there should be limitations on this power, when
there are factors present which indicate that the alien is more closely
identified with one country than he is with another and both countries
are willing to accept him.
The standard for reaching a determination as to what country an alien
may be deported is clearly set forth in the statute (section 243( a),
supra). We see no need to supplement the plain language setting forth
the authority granted the Attorney General. Under section 243(a) an
alien must be deported "to a country promptly designated by the alien if
that country is willing to accept him' unless the Attorney General "in
his discretion' concludes that deportation to such country would be
prejudicial to the best interests of the United States. (Emphasis
supplied.) The alien is limited to "one such designation' and he may not
designate a foreign contiguous territory or adjacent islands unless he
is a native, national, or resident of such contiguous territory or
adjacent island.
Where the country designated by the alien or the country of his
citizenship is unwilling to accept him, the statute provides the
Attorney General with discretion to deport the alien to any of six
different categories of countries or places with which the alien may
have had some prior association. Subparagraph (7) of section 243(a)
reads "if deportation to any of the foregoing places or countries is
impracticable, inadvisable, or impossible, then to any country which is
willing to accept such alien into its territory.' The statute also
provides, that when the Attorney General has to resort to ordering the
alien's deportation to any of the seven categories named in the statute,
"then such deportation shall be directed by the Attorney General within
his discretion and without necessarily giving any priority or preference
because of their order . . .' as set forth in the statute. (Emphasis
supplied.)
The respondent in the instant case refused to make any designation of
the country to which he desired to be returned in the event of an order
of deportation. When it was determined that the country of his
nationality and citizenship would not accept him and upon the making of
this motion, the Immigration Service offered to effect the respondent's
deportation to Hong Kong. The offer was refused and the respondent
elected to proceed with this motion.
Under the circumstances there is no substance to respondent's motion.
The alternate country to which an alien may be deported is solely
within the discretion of the Attorney General and there are no
limitations as to the priority or preference because of the order named
in the statute. The wide discretion given the Attorney General by
subparagraph (7) of section 243(a) is obviously intended to avoid
arbitrary restrictions on the places to which a deportable alien may be
sent. Chan Chuen v. Esperdy, 285 F.2d 353, 354 (C.A. 2, 1960).
Counsel's argument that this Board should set up certain standards for
the exercise of the authority granted the Attorney General by section
243(a) is not in accord with the intent and purpose of the statute.
The respondent in the instant case did not avail himself of the
opportunity granted him as a matter of right. He is in no position to
ask for relief at this time. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
A child born out of wedlock in the Philippines and reared in a home
maintained there by his father (married) and his mother (unmarried
paramour of father) has not been legitimated under section 230,
California Civil Code, absent a showing that the father brought the
child into his home "with the consent of his wife.'
The district director approved the visa petition on June 18, 1963,
and granted nonquota status to the beneficiary as the petitioner's
child. On September 17, 1963, the petitioner was notified of the
intention to revoke the approval and that he might offer evidence in
opposition within 15 days. No evidence was submitted and the approval
of the visa petition was revoked on October 14, 1963. The case is now
before us on appeal from that decision.
We have carefully reviewed the entire record. The petitioner was
born in the Philippines and acquired United States citizenship through
"parentage.' He originally stated that he was married on April 27, 1951,
to one Eleanor; that he had not been previously married; and that the
beneficiary was born in the Philippines on March 27, 1952. From
information subsequently received by the Service and which the
petitioner now concedes, it appears that he was previously married to
Gloria Tibre on May 10, 1943, and that this marriage has not been
terminated. The Service revoked the approval of this visa petition on
the ground that the beneficiary, being illegitimate, was not a "child'
of the petitioner under the definition in section 101(b)(1) of the
Immigration and Nationality Act 8 U.S.C. 1101(b)(1) . Counsel contends
that the beneficiary has been legitimated under section 230 of the
California Civil Code which provides, in part, as follows:
Section 230 Adoption of illegitimate child -- The father of an
illegitimate child, by publicly acknowledging it as his own,
receiving it as such, with the consent of his wife, if he is
married, into his family, and otherwise treating it as if it were
a legitimate child, thereby adopts it as such; and said child is
thereupon deemed for all purposes legitimate from the time of its
birth. * * *
In his brief, counsel stated that, following the marriage on April
27, 1951, the petitioner and Eleanor maintained a home and held
themselves out as husband and wife; that, when the beneficiary was
born, the petitioner held him out as his child and received him into the
home which he maintained with Eleanor; that the petitioner moved to
California in 1960; and that he sent money to the Philippines for the
support of his family. However, the record contains no evidence to
support any of these factual allegations and there is not even an
affidavit by the petitioner to that effect. Regardless of whether the
beneficiary's case meets other requirements of section 230, we do not
believe it has been established that the petitioner received the
beneficiary as his own child into his family with the consent of his
wife.
Counsel stated that the courts of California "declare that such
legitimating acts under Civil Code 230 are operative although the only
home the father has and the home in which he receives the child is a
home in which he is living with the mother as husbnad and wife, although
they are not married.' He cited three cases in support of this
proposition which will be discussed briefly.
Garner v. Judd, 136 Cal. 394, 68 Pac. 1026 (1902), related to a man,
apparently previously unmarried, who lived with a woman from 1876 to
1897. There was some evidence that a marriage had occurred between them
but this was not definitely established. He held her out as his wife.
His illegitimate child was born in 1878 of another woman, and the child
was held not to have become legitimated under section 230 because the
father had not received her into his family.
In re Jones' Estate Baker v. Jones , 166 Cal. 108, 135 Pac. 288
(1913), involved two unmarried persons who cohabitated at the man's
residence on a ranch commencing in 1897. In May 1902, the woman became
pregnant and in November of that year she left the ranch and did not
again return to cohabit with him. The illegitimate child was born on
February 27, 1903. He lived at the ranch with his father for two months
about 1908 which the court held constituted receiving the child into the
father's family, the family consisting of the father and the son.
In re McNamara's Estate, 181 Cal. 82, 183 Pac. 552 (1919), had
reference to a married woman and an unmarried man who cohabited from
December 1913 until his death. Their illegitimate child lived with them
and was acknowledged by the father. It was held that this child was
legitimate under section 230.
In re McNamara's Estate, supra, does support counsel's proposition
quoted above but the other two cases do not. However, the McNamara case
is distinguishable from the respondent's case. There, the father
received the illegitimate child into the home he had maintained in
California with the child's mother. This beneficiary has never been
received into the petitioner's home in California although counsel
attempts to utilize the beneficiary's alleged residence with the
petitioner and Eleanor in the Philippines.
A more important distinction is that, in cases where the father of
the illegitimate child is married, section 230 specifically requires
that the wife must consent to receiving the child into the father's
family. In the McNamara case, the father was unmarried. However, there
is no question that Eleanor, the mother of the beneficiary, is not the
petitioner's wife, and there is no evidence that his legal wife, Gloria,
consented to the beneficiary being received into the petitioner's
family.
The facts in this beneficiary's case are entirely analogous to those
in Louie Wah You v. Nagle, 27 F.2d 573 (9th Cir., 1928), and Matter of
Wong, Int. Dec. No. 1287 (1963), in which it was held that legitimation
was not established under section 230 of the California Civil Code. We
consider those decisions controlling here and hold that the petitioner
has not established that the beneficiary was legitimated under section
230. The view of the foregoing, we conclude that the district
director's action, revoking the approval of the visa petition, was
correct and the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
An applicant for advance waiver of section 212(c), Immigration and Nationality Act, who has been excluded and deported is statutorily ineligible for such relief since he did not proceed abroad "voluntarily and not under an order of deportation' nor can his status as a lawful permanent resident be considered as not having changed.
INADMISSIBLE: Act of 1652 -- Section 212(a)(22) 8 U.S.C. 1182(a)(
22) -- Ineligible to citizenship.
The case comes forward on appeal from the order of the District
Director, Detroit District, dated September 10, 1963, denying the
application for advance permission to return to an unrelinquished
domicile for the reason that the applicant is not considered to be
returning to an unrelinquished domicile in the United States as required
by section 212(c) of the Immigration and Nationality Act since he
abandoned his domicile when he failed to return to the United States
before expiration of his reentry permit on January 28, 1956.
The record relates to a native of Palestine, and a citizen of Jordan,
who was originally admitted for permanent residence on September 28,
1937. During 1939 the applicant went to Palestine for a visit returning
May 1940 with a reentry permit. He again visited Palestine in 1946
returning April 16, 1947, on a reentry permit. Thereafter applicant
continued to reside in the United States until January 1954 when he
again went on a visit to his native land and he remained past the
January 28, 1956, expiration date of his extended reentry permit.
This latter occurrence necessitated the applicant's application for a
visa in order to return to the United States. He applied for and was
issued a visa on February 5, 1957, as an immigrant under section 203(
a)(2) as a parent of a United States citizen over the age of 21 years,
such visa petition having been approved on September 25, 1956. The
applicant applied for admission on April 3, 1957, but by order dated
July 3, 1957, a special inquiry officer held the applicant excludable
under section 212(a)(22), 8 U.S.C. 1182(a)(22), as an alien ineligible
to citizenship as the result of his having filed on January 15, 1943, a
DSS Form 301, requesting exemption from military service as a citizen of
neutral Palestine, a British mandated territory, the applicant being
classified IV-C on January 18, 1943, on the basis of this request. On
September 12, 1957, this Board dismissed the appeal from the exclusion
decision. Thereafter he returned to Palestine to Ramallah, Jordan, with
his wife and has been residing there since 1957.
The brief of counsel sets forth that in January 1954 the applicant
obtained a reentry permit and left for Palestine to visit his wife and
children and thereafter obtained a one-year extension of his reentry
permit. By the time the second year was up it was discovered that his
wife was seriously ill with cancer from which she eventually died. He
was compelled to remain in Palestine beyond the validity period of his
reentry permit to help care for the four of his seven children the
eldest three sons having immigrated to the United States in 1947, 1951,
and 1955 respectively. In 1957 the doctors in Palestine suggested to
the applicant that his wife should be brought to the United States for
an operation which might save her life. On the basis of visa petitions
filed by his citizen son, Salim, on behalf of his mother and father, the
American Consul issued second preference immigration visas to them.
Five of the applicant's seven children are now in the United States,
three of them being citizens and the other two resident aliens.
In 1961 a private bill (H.R. 87-1867) was introduced into Congress
which failed of enactment. A report from the Director of the Visa
Office received in December 1960 in connection with a prior bill (H.R.
12638) stated that in 1954 the applicant went back to Palestine and
resumed farming his lands; that after his exclusion in 1957 he and his
wife returned to Ramallah, Jordan, where he has since been residing.
When interviewed, the Embassy found that the applicant failed to
disclose a material fact relating to his draft exemption status to the
visa issuing officer when he obtained an immigrant visa in 1957;
however, it has been determined that the misrepresentation, while
material, was not willful.
In his brief counsel contends that the denial of the application for
section 212(c) waiver on the ground that the alien abandoned his
domicile when he failed to return to the United States before expiration
of his reentry permit on January 28, 1956, is improper; that absence
alone does not establish abandonment of United States residence; and
that the burden of proving abandonment is on the Government. Counsel
cites cases to support his argument that absence for a number of years
does not establish that the applicant abandoned his domicile in the
United States. He argues that the applicant should have sought a
nonquota returning resident visa under section 101(a)( 27)(B) after
first obtaining an advance waiver under section 212(c) instead of the
second preference visa which he did obtain. Counsel urges that the
applicant never gave up his desire to resume domicile in this country
after his exclusion and return to Palestine in 1957. Counsel concedes
that the applicant will be required to make application for a returning
resident visa at the American consulate but because of the bar of
section 212(a)(22) the consul must deny such an application for a
returning resident visa in any event. He argues that the failure of the
applicant to obtain an advance waiver under section 212(c) when he left
the United States in 1954 should not be held against him and his failure
to request the special inquiry officer to ignore the quota visa and to
consider granting him a waiver visa under section 211(b) as well as a
section 212(c) should also be ignored because of the humanitarian and
mitigating circumstances of the case.
Section 212(c) provides that aliens lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted in the discretion
of the Attorney General without regard to the provisions of paragraphs
(1) through (25) and that nothing obtained under that subsection shall
limit the authority of the Attorney General to exercise the discretion
vested in him under section 211(b). The first question to be decided is
whether the alien temporarily proceeded abroad voluntarily and not under
an order of deportation.
Section 212(c) of the Immigration and Nationality Act of 1952 was a
successor to the somewhat similar provision contained in the 7th Proviso
to section 3 of the Immigration Act of 1917 which provided that aliens
returning after a temporary absence to an unrelinquished United States
domicile of seven consecutive years might be admitted in the discretion
of the Attorney General and under such conditions as he might prescribe.
In interpreting this provision it was held in Matter of S , 1 I. & N.
Dec. 646 (Attorney General 1944), that where an alien had seven years
actual residence in the United States and subsequently departed under an
order of deportation, such deportation in and of itself did not operate
to terminate domicile in the United States and preclude the alien from
consideration under the 7th Proviso to section 3 of the Immigration Act
of 1917, as amended. It was also held that an alien deported or
excluded before acquiring the statutory domicile of seven years could
not thereafter acquire it through lapse of time and failure on his part
to concur in the legislative mandate under which he was barred from the
country. It was held that one who left voluntarily could tack on
periods of residence where no formal exclusion or deportation order had
been entered. /1/ The holding in Matter of S , supra, was chipped away
somewhat by allowing the tacking on of a short period (one week) to make
up seven years domicile in the United States despite his departure under
an order of deportation. /2/ In Matter of M , 4 I. & N. Dec. 82
(Attorney General (1950)), it was held that this holding did not
overrule the prior holding in Matter of S , 1 I. & N. Dec. 376, at page
383, that where an alien resided in the United States for four years and
was excluded thereafter, the word "domicile' as used in the 7th Proviso
to section 3 of the Immigration Act of 1917, as amended, contemplated
actual residence or place of abode and that it might be interrupted by
deportation or exclusion.
The legislative history throws very little light on the reason for
the change in language of the present section 212(c) of the Immigration
and Nationality Act of 1952 as compared to the wording of the 7th
Proviso to section 3 of the Immigration Act of 1917, as amended. There
was criticism of the use of the 7th Proviso to section 3 of the
Immigration Act of 1917 and the suggestion was made that if the words
"established after a lawful entry for permanent residence' were inserted
in the 7th Proviso to qualify the domicile of the alien it would
effectively eliminate practically all of the objectionable features and
at the same time the Attorney General would be left with sufficient
discretionary authority to admit any lawfully resident alien returning
from a temporary visit abroad to a lawful domicile of seven consecutive
years. The subcommittee recommended that the proviso should be limited
to aliens who have the status of lawful permanent residents who are
returning to a lawful domicile of seven consecutive years after a
temporary absence abroad and that they must have proceeded abroad
voluntarily and not under an order of deportation to be eligible for the
relief. Senate Report No. 1515 (81st Cong., 2d Sess.) pp. 383-384
(April 20, 1950). In the House Report to accompany H.R. 5678 and the
Senate Report to accompany S. 2550, /3/ it was set forth that under
present law (7th Proviso to section 3 of the 1917 Act) the case of an
alien returning after a temporary absence during an unrelinquished
United States domicile of seven consecutive years, he could be admitted
in the discretion of the Attorney General; that under existing law the
Attorney General was thus empowered to waive the grounds of exclusion in
the case of an alien returning under the specified circumstances even
though the alien had never been lawfully admitted to the United States.
The comparable discretionary authority vested in the Attorney General in
section 212(c) of the bill is limited to cases where the alien has been
previously admitted for lawful permanent residence and has proceeded
abroad voluntarily and not under an order of deportation. No
explanation is offered for the italicized portion.
In the instant case the applicant was ordered excluded by a decision
of the special inquiry officer dated July 3, 1957, on the ground that he
was inadmissible under section 212(a)(22) of the Immigration and
Nationality Act as ineligible to citizenship. The appeal from this
exclusion decision was dismissed by the Board on September 12, 1957, and
subsequently, probably during the same year, although this does not
appear, he was deported to Jordan.
Inasmuch as section 212(c) of the Act requires as a ground of
eligibility that the alien be lawfully admitted for permanent residence
and temporarily proceed abroad voluntarily and not under an order of
deportation, this applicant, who was forced into return to his native
land subsequent to the order of exclusion can hardly be said to have
departed voluntarily and not under an order of deportation.
It is noted that section 212(a)(16) of the Immigration and
Nationality Act refers to aliens who have been excluded from admission
and deported and that section 212(a)(17) refers to aliens who have been
arrested and deported insofar as permission to reapply is concerned.
However, the language of section 212(c) does not appear to draw any
distinction between those who have been excluded and deported and those
who have been arrested and deported but requires that an alien
temporarily proceed abroad voluntarily and not under an order of
deportation. It is not specified whether the order of deportation shall
be the result of an exclusion or deportation proceeding and the
legislative history of the Act fails to shed any light thereon.
However, the language should be read in its ordinary meaning and for the
purposes of this provision of the Act, no distinction appears to have
been made between those who have been ordered deported as a result of
exclusion and those who have been ordered deported as the result of
deportation.
Section 101(a)(20) of the Immigration and Nationality Act defines the
term "lawfully admitted for permanent residence' as meaning the status
of having been lawfully accorded the privilege of residing permanently
in the United States as an immigrant in accordance with the immigration
laws, such status not having changed. Inasmuch as the applicant's
departure from the United States in 1957 was an enforced one and was not
voluntary, it is difficult to conceive of the applicant's status as not
having changed. /4/
The order of the District Director denying the application because
the applicant is not considered to be returning to an unrelinquished
domicile in the United States as required by section 212(c) of the
Immigration and Nationality Act since he abandoned his domicile when he
failed to return to the United States before the expiration of his
reentry permit on January 28, 1956, is not regarded as setting forth the
true reason for denial. We conclude that the applicant is ineligible
for section 212(c) relief because he is not one who temporarily
proceeded abroad "voluntarily and not under an order of deportation.' In
addition, it is noted that when the applicant last sought to enter the
United States in 1957 he was coming on a second preference visa and not
as a returning resident and there is no evidence that the American
consul would be willing to issue him a visa under section 101(a)(27)(B)
of the Immigration and Nationality Act as a returning resident. In
addition, the case does not appear to be a proper one for consideration
at the present time because of the absence of any evidence that the
applicant is returning to a lawful unrelinquished domicile of seven
consecutive years. However, we rest our denial primarily upon the first
reason advanced, namely, that the applicant is ineligible for section
212(c) relief because he did not temporarily proceed abroad voluntarily
but was forced to return to his native country under an order of
deportation following his exclusion from the United States.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of C , 2 I. & N. Dec. 168.
(2) Matter of C , 1 I. & N. Dec. 631.
(3) House Report No. 1365, 2805 and Senate Report No. 1137, 12, 82d
Cong., 2d Sess. (1952).
(4) In Matter of T , 6 I. & N. Dec. 778, an alien who had become a
permanent resident of the United States in 1921 and who was repatriated
to Japan in August 1942 was held not eligible for relief pursuant to
section 212(c) of the Immigration and Nationality Act since it cannot be
said that the applicant's status has not changed or that he departed
"voluntarily' within the meaning of section 212(c) of the Immigration
and Nationality Act.
Since substantial deviation from the authorized training conditions and program established by petition (section 214(c)) on behalf of an industrial trainee (section 101(a)(15)(H)(iii)) violates that status, he is deportable under section 241(a)(9) of the Act.
CHARGES:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) -- Nonimmigrant, failed to comply with conditions of status under which admitted.
Lodged: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) --
Nonimmigrant, failed to comply with conditions of nonimmigrant status to
which changed after entry.
The special inquiry officer held that the record sustains the lodged
charge that respondent failed to comply with the conditions of his
nonimmigrant status as changed after entry. Respondent appeals from
this determination of deportability. /1/ We concur in the special
inquiry officer's conclusion.
Respondent is a native and national of Japan. He last entered this
country at Honolulu on September 19, 1960, as a visitor for pleasure.
Subsequently his nonimmigrant status was changed to that of an
industrial trainee. /2/ Respondent was first trained by Auto Parts
Warehouse, which dealt in wholesale automotive parts. He requested a
change of trainer to the Summit Manufacturing Company (hereafter called
Summit), whose business is wholly concerned with molded rubber parts and
sealing components for automatic transmissions. The wife of the
owner-president of Summit is respondent's mother's sister.
Although Summit employs about two to four girls irregularly part
time, respondent is the only full-time employee. Therefore, the record
might support a conclusion that respondent was more of an ordinary
employee than a trainee. /3/ There are some indications the Service at
the time of serving the order to show cause doubted that respondent was
actually receiving training. The Service brought these proceedings,
however, because investigation indicated respondent's activities at
Summit did not conform with the approved petition. /4/
We are not concerned here with whether the respondent's actual
activities at Summit would qualify him for trainee status if those
activities and the petition were in harmony. We also are not concerned
with whether petitioner's statements on, or in support of, the petition
willfully misrepresented the training program. For purposes of this
appeal we shall consider that Summit would qualify as a trainer and
respondent would qualify as an industrial trainee if the petition
accurately reflected the actual situation.
Two questions are raised. Does respondent's actual training deviate
from the training proposed by the petition? If so, does the deviation
constitute a violation of respondent's nonimmigrant status?
Summit's petition in behalf of respondent (Exh. 2) described summit
as a manufacturer of molded rubber parts and sealing components for
automatic transmissions. Summit's president's statement, incorporated
by reference into the petition, described the training planned for
respondent. That statement outlined the first part of the training
program as follows:
1. Manufacture of rubber component parts.
a. Familiarization with varying rubber formulas, temperature
ranges, heat requirements and ranges; special features and
requirements of various transmissions relating to rubber
components and their application relating to same.
b. Basic introduction and training in various production steps;
mixing crude stock, milling, extruding finished formulas,
operating heat press, curing, trimming.
c. Care and maintenance of multi-cavity molds.
Summit's president also said special emphasis was to be placed on the
manufacture of rubber sealing components, as well as the design and
assembly of various kits, assemblies and sub-assemblies required in the
repair of automatic transmissions.
Respondent's attorney in forwarding the petition for filing wrote:
In order that the subject when he returns to Japan be
experienced in the numerous phases of the highly specialized field
involving automatic automobile transmissions he desires to obtain
training in the branch of automatic transmission manufacturing
dealing with molded rubber parts and sealing components. The
Summit Manufacturing Company, Inc., manufactures such molded
rubber parts and sealing components and is willing to extend its
facilities for training the subject as indicated by the attached
Form I-129B and the letter of the president, Mr. Jack Litke. /5/
From these representations, the Service could conclude only that
respondent would engage in actual performance of the various
manufacturing processes described in the president's statement. In fact
Summit did not, and could not, offer respondent such training
opportunities.
Respondent's counsel attempts in his brief to show that the word
"manufacture' has various applications, some of which might cover -- at
least in part -- what Summit does. The testimony of Summit's president,
however, repels the argument that in the automatic transmission trade
Summit, on the basis of its present activities, could be considered a
manufacturer. The president testified that prior to the time he took
over the business Summit did actually manufacture automatic transmission
parts. He stopped that phase of the business, however, because it was
losing money. Respondent's counsel also objects to the statement in the
special inquiry officer's opinion that Summit makes nothing. As we have
seen, Summit does add something to the products which it purchases,
mainly increasing their salability through grouping and packaging. We
may concede, therefore, that, although not a manufacturer, Summit makes
something. Nevertheless, whatever Summit makes is certainly far removed
from what the Service, with good reason, thought it made when the
Service approved the petition.
As the trial attorney points out in the Government's reply brief,
when the petition here was filed respondent was completing 18 months'
training in another firm which distributed automotive parts.
Indications that the new trainer would add training in manufacturing
certain automotive parts to the training respondent had already acquired
in distributing automotive parts may well have influenced the Service in
granting the request for further training. In fact, as the record amply
shows, Summit is also essentially a distributor. /6/
We need not determine, however, what motivated the Service's approval
of the petition. An industrial trainee enjoys the status established by
the petition. /7/ Substantial deviations from the authorized training
conditions and program may violate that status, even though the alien's
activities, if properly described, might fall within the general
classification, "industrial trainee.' In administering sections
101(a)(15)(H)(iii) and 214(c) of the Act, the Service may, as it did
here, investigate the alien's training program. It need not engage in a
colloquy on strained semantics to determine what that program is -- or
should be.
We find that the training actually received by respondent varies
substantially from the training proposed in the Petition to Classify
Nonimmigrant as Temporary Worker or Trainee and that the variation
constitutes a violation of respondent's nonimmigrant status. Permitting
such divergencies would unduly hamper the Government in administering
the Act. The lodged charge is sustained. We shall dismiss the appeal.
ORDER: It is ordered that the appeal be and is hereby dismissed.
(1) The special inquiry officer granted respondent's application for
voluntary departure.
(2) Section 101(a)(15)(H)(iii).
(3) At oral argument counsel for the Service said that respondent, as
the only employee, is quite obviously replacing a United States citizen
laborer. (The petition form defines an industrial trainee as "One who
seeks to enter at the invitation of an industrial organization, firm, or
other trainer for the purpose of receiving instruction in any field of
endeavor. Only incidental production necessary to the training is
permitted provided a United States worker is not thereby displaced.')
This point was not developed at the hearing, however. We do not give it
any consideration in determining whether respondent is maintaining his
status as an industrial trainee.
(4) 8 CFR 214.2(h).
(5) Counsel prepared this statement on the basis of the information
supplied by Summit's owner. Both counsel and Summit's president, in
retrospect, admit that the petition does not accurately describe Summit
or respondent's training.
(6) Summit's companion, O.E.M. Automatic Transmission Parts, performs
the actual distribution. Summit is concerned with increasing
marketability for the products distributed by O.E.M. through grouping,
minor trimming, and packaging. O.E.M., however, sometimes adds other
seals and rings to the kits prepared by Summit. (See testimony of
Summit's president and exhs. C and D.) Summit's owner also owns O.E.M.
and the two corporations occupy the same premises. Apparently training
in Summit would practically merge with training in the distributing
functions of O.E.M.
(7) Form I-171 (Rev. March 24, 1960). Notice of Approval of Visa
Petition, contains a statement that approval of petitions to import
nonimmigrant aliens covers only the employment or training specified in
the petition and that acceptance of employment or training not specified
in the petition is a violation of the beneficiary's nonimmigrant status.
Respondent has not established that because a political disagreement exists between the Governments of Pakistan and India on the territorial question of Kashmir, he would be subject to physical persecution within the meaning of section 243(h), Immigration and Nationality Act if deported to India, a predominantly Hindu country, since he is a native of Pakistan and a Moslem.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant (crewman) -- Remained longer.
The special inquiry officer, in a decision dated October 2, 1963:
(1) found the respondent ineligible for voluntary departure; (2)
directed his deportation from the United States to India on the charge
contained in the order to show cause; and (3) denied his application
for temporary withholding of deportation to India. The appeal from that
decision, which brings the case before this Board for consideration,
will be dismissed.
The record relates to a male alien, approximately 47 years of age,
who asserts that he is a native and citizen of Pakistan. He last
entered the United States on or about May 26, 1957. He was then
admitted as a nonimmigrant crewman for the period of time his vessel was
to remain in port, but in no event to exceed 29 days. He has remained
in this country since the expiration of the temporary period of his
admission without authority.
The foregoing establishes the respondent's deportability on the
charge set forth in the order to show cause, and this is conceded. The
respondent has stated that he will not leave the United States
voluntarily so that the special inquiry officer properly found him
ineligible for voluntary departure, and this finding is unchallenged.
The country of deportation designated by the respondent (British Guiana)
and the country of his asserted nativity and citizenship (Pakistan) have
both refused to issue documents for the respondent's admission thereto,
and the Service has submitted evidence of the willingness of India to
issue an emergency certificate valid for the respondent's deportation to
that country; so that the procedural aspects of the case on this point
require no further comment. Thus, the only issue presented for our
consideration is whether the special inquiry officer's denial of the
respondent's application for temporary withholding of his deportation to
India constituted an abuse of discretion. Our answer is in the
negative, for the reasons hereinafter set forth.
Generally speaking, physical persecution, the likelihood of which
authorizes a stay of deportation under this section of the law, means
confinement, torture, or death inflicted on account of race, religion or
political viewpoint (Blazina v. Bouchard, 286 F.2d 507). The main
thrust of the respondent's argument here is that he will be subjected to
persecution in India, which is predominantly Hindu, because he is a
native of Pakistan and a Moslem. Specifically, he bottoms his claim on
the fact that there is a political disagreement between the Governments
of Pakistan and India on the territorial question of Kashmir, and that
he will be persecuted because of this.
The respondent has been unable to furnish any documentary evidence to
support his claim (Ex. R-2). It is patently general in nature rather
than on an individual basis. The "press releases' on which he relies
are general in nature and deal solely with the general disagreement
between the governments of Pakistan and India over Kashmir. He has made
no claim or showing that the Government of India is engaged in a program
of persecuting individuals who are Pakistanians and Moslems. There is
no showing that the Government of India tolerates violence by Hindu
Indians against Pakistanian Moslems, either individually or
collectively, and that the police powers of the government have
degenerated to the point where it is unable to take proper measures to
control individual cases of violence in this respect which arise. The
reports of various committees of the Congress to which counsel referred
in the course of oral argument relative to a dispute between Pakistan
and India are, from his very observations, concerned solely with the
broad problems involved rather than the individual cases of aliens such
as the one now under consideration. Accordingly, we find the
respondent's general allegations in this respect do not meet the burden
resting upon him to establish persecution (Matter of B , A-15804394,
BIA, 8/28/63; Int. Dec. #1298).
It has also been judicially determined that economic proscription so
severe as to deprive a person of all means of earning a livelihood may
amount to physical persecution (Dunat v. Hurney, 297 F.2d 744; and
Soric v. Flagg, 303 F.2d 289). However, we do not think that the record
supports the respondent's contention that his case comes within the
scope of the courts' rulings in this respect.
According to the record, the respondent proceeded from Pakistan to
Bombay, India, when he was about 16 years of age, in 1931. From then
until 1942 he worked in the ship yards of Bombay. Thereafter, and until
1956, he sailed as a crewman, signing on and off at Bombay, India. The
respondent's past record, then, does not support his present claim, and
he advances no good reason why the situation would be different after
his return to India than it was prior to 1956. As a matter of fact, he
admitted that if the Indian consulate had granted him documents to enter
India in 1960 he would have willingly and voluntarily returned there.
Under these circumstances, we do not think that the respondent's claim
to persecution in this respect is supported.
This same factor negatives the respondent's argument that he would be
physically persecuted because prior to 1956 and subsequent to India
acquiring its independence some people hit him and told him to go back
to Pakistan. Again, in this connection, there is no evidence of record
that conduct in this respect is the result of a program sponsored or
tolerated by the Government of India, or resulting from incidents by
Indians, individually or collectively, which the Government of India
condones.
We find completely lacking in merit the respondent's assertion that
his life would be endangered if he returned to India because
approximately two years ago, when he was detained by the Immigration
Service, he called the Indian consulate and was told that as a
Pakistanian the Indian Government would have nothing to do with him. In
the first place, it is only natural that the Indian Government would be
concerned with its own natives and nationals. Secondly, any adverse
inference which the situation might otherwise have given rise to is
negatived by the fact that India has now evidenced its willingness to
issue the respondent an emergency certificate valid for his deportation
thereto. Thirdly, the special inquiry officer, who had the benefit of
observing the respondent, was of the opinion that he was willing to make
any rash declaration which would suggest the possibility of his
continued presence in this country; and counsel in the course of oral
argument characterized some of the respondent's statements as
"incoherent and unintelligible.' (par. 1)
Finally, respondent's contention concerning adverse living conditions
in Bombay may explain his desire to remain in this country where living
standards are better. However, this is not dispositive of the issue
presented.
ORDER: It is ordered that the appeal be dismissed.
Respondent, A 32-year-old unmarried native of China, who has been in the United States since his entry in 1955 as a student and who has no one here who would be adversely affected by his departure, has not established that his deportation to Formosa would, within the meaning of section 244(a)(1), Immigration and Nationality Act, as amended, result in "extreme hardship' on the basis of possible unavailability of suitable employment because of his nonuse of the Chinese language and his lack of a college degree or of a trade skill.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant -- Remained longer.
The respondent, a native of China, appeals from an order entered by
the special inquiry officer on October 7, 1963, granting him the
privilege of voluntary departure in lieu of deportation as an alien who
after entry as a nonimmigrant student remained longer than permitted.
Exceptions have been taken to the denial of the respondent's application
for suspension of deportation under section 244(a)(1) of the Immigration
and Nationality Act as amended by the Act of October 24, 1962 (Public
Law 87-885 (8 U.S.C. 1254(a)(1))).
The respondent, male, 32 years of age, unmarried, last entered the
United States at San Pedro, California, on or about September 22, 1955.
He was admitted as a nonimmigrant student and was authorized to remain
in the United States until January 29, 1962. He has remained in the
United States beyond the time for which he was admitted and he concedes
deportability on the charge set forth in the order to show cause.
The appeal before us is directed to the denial of the respondent's
application for suspension of deportation, filed on January 21, 1963,
pursuant to the provisions of section 244(a)(1) of the Immigration and
Nationality Act as amended by the Act of October 24, 1962 (Public Law
87-885). The special inquiry officer after due consideration of the
respondent's application finds that he meets the following statutory
requirements of the amended statute. The respondent has been physically
present in the United States for a continuous period of not less than
seven years. The respondent has been a person of good moral character
for the statutory period of seven years. The respondent is not
deportable on a charge contemplated within section 244(a)(2) of the
Immigration and Nationality Act as amended.
The special inquiry officer concludes, however, that the respondent's
deportation would not result in "extreme hardship,' a term used for the
first time in the amended version of section 244(a)(1) (supra). Prior
to the amendment the degree of hardship was described in all five
paragraphs of section 244(a) as "exceptional and extremely unusual.'
This degree of hardship was retained in paragraph (2) of the amended
version of section 244(a) which relates to suspending the deportation of
aliens deportable as undesirables, subversives and criminals.
The principal issue presented on appeal is whether the special
inquiry officer erred in concluding that the respondent is ineligible
for the relief provided by section 244(a)(1) because his deportation
does not meet the test of "extreme hardship' as that term is used in the
amended statute. Among the reasons assigned by the special inquiry
officer in support of his conclusion are the following. The respondent
is not married and there are no members of his immediate family residing
in the United States. There is no one in the United States dependent
upon him for support.
The respondent's widowed mother and one brother reside on Formosa.
His brother is employed by the Chinese Nationalist Government. His
mother receives a pension from the Nationalist Government based upon her
husband's service in the Control Yuan. The respondent testified that he
occasionally sends his widowed mother a few dollars. He also testified
that when he entered the United States as a student he intended to
return to Formosa upon the completion of his education (p. 13).
The respondent last attended the University of Southern Illinois in
December 1961. During the more than eight years the respondent has been
in the United States he has earned "around a hundred thirty-five' credit
hours (p. 8) and has attended three different colleges. He testified
that he was dropped by the University of Illinois in 1956 or 1957
because of poor grades (p. 8). His record at the University of Southern
Illinois also reflects poor grades (Ex. 4). The respondent attributes
his mediocre scholastic record to his "poor English' (p. 8).
The respondent testified that he is not attending school "because I
haven't got funds to continue my study . . .' (p. 13). During his
residence in the United States he has had summer employment at two
hotels, a store, and since January of 1962 he has been employed by the
Allied Radio Corporation of Chicago, Illinois, as a stockman earning $75
per week (Ex. 2).
Counsel for the respondent maintains that Congress intended to lessen
the degree of hardship required to qualify for suspension of deportation
under paragraph (1) of section 244(a) as amended when they substituted
the word "extreme' for the term "exceptional and extremely unusual' in
referring to the specified type of hardship envisaged by the Act of
October 24, 1962 (Public Law 87-885). Counsel argues that the
respondent has met the burden of establishing his eligibility for the
discretionary relief he seeks. Counsel has referred to the following
factors in support of the respondent's claim that his deportation would
result in extreme hardship within the meaning of section 244(a)(1) as
amended:
(a) Deportation of the respondent would prevent him from
completing his undergraduate college training and his
post-graduate work in higher mathematics. Respondent has already
earned 135 hours of college credit.
(b) Respondent has resided in the United States more than seven
years; has become fluent in the English language, and has made a
good record in his studies and in his employment.
(c) If deported, it would be extremely difficult to obtain a
visa to return to the United States because of the limited quota.
(d) Respondent has limited funds and it would be an extreme
hardship to have to return to China to apply and wait for a visa,
and then make the return trip to the United States.
(e) The maximum use of respondent's college training and
anticipated postgraduate work would be found here in the United
States where there is great need for specially trained
mathematicians.
(f) Respondent's father died in September 1962 and respondent
now contributes to the support of his mother. If respondent were
deported, the availability of suitable employment on Formosa would
be doubtful because of respondent's nonuse of the Chinese language
and his lack of a college degree or of a trade skill. Said
factors would probably confine his employability to that of an
unskilled laborer.
As originally written Public Law 87-885 /1/ provided relief from
deportation by advancing the cut-off date from June 28, 1940, to
December 24, 1952, for all aliens eligible for registry under section
249 of the Immigration and Nationality Act. However, when the
legislation was considered in conference it was rewritten to achieve the
same result by suspending deportation rather than creating a record of
lawful entry. The conferees on the report of the House of
Representatives commented that the amendment of section 244 "is designed
to achieve the purpose envisaged by the Senate in a modified manner' /2/
and in addition would permit Congressional review of the relief granted
aliens by the Attorney General. According to the conferees from the
House of Representatives the proposed language of the amendment of
section 244(a) also envisaged "the showing of (a) specified type and
degree of personal hardship which might occur in the absence of such
relief.' /3/
The personal privation contemplated in a situation characterized by
"extreme hardship' within the meaning of the statute is not a definable
term of fixed and inflexible content or meaning. It necessarily depends
upon the facts and circumstances peculiar to each case. We are
concerned with an alien who was permitted to enter the United States as
a student in 1955 for the purpose of acquiring an education. His
admission for this purpose contemplates his departure from the United
States upon his failure to maintain the status of a student.
The respondent maintains that his return to the country whence he
came would result in extreme hardship to him despite the fact that he
concedes that he intended to return to Formosa at the time he entered in
1955. He seeks permanent resident status in order that he may complete
his undergraduate courses and then do post-graduate work in higher
mathematics. His desire in this regard does not appear to be consistent
with his testimony that he does not have sufficient funds to complete
his education. His past record as a student is not in accord with such
an ambitious graduate program. Furthermore, the allegation that he
would find here in the United States rather than in Formosa the maximum
use of his present training and anticipated post-graduate work in the
field of mathematics is not in accord with his current employment as a
stockman.
The evidence in our judgment does not support the respondent's claim
that his return to Formosa would result in extreme hardship to him
financially because suitable employment in Formosa would be doubtful due
to the respondent's nonuse of the Chinese language and his lack of a
college degree or of a trade skill. The respondent with some 135
semester credit hours should be in a better competitive position for
employment in Formosa than when he entered the United States in 1955.
The claim that nonuse of the Chinese language during his residence in
the United States is a factor which would cause him extreme hardship
upon his return to Formosa is not consistent with the evidence of record
that he was a member of Chinese student organizations at the University
of Southern Illinois and the University of Illinois (Ex. 2). It is
inconceivable that the Chinese language was not spoken at the meetings
of Chinese student organizations during the five or more years the
respondent attended these institutions.
We do not dispute counsel's argument that Congress intended to lessen
the degree of hardship required to qualify for suspension of deportation
when they amended paragraph (1) of section 244(a) by Public Law 87-885.
The term "extreme hardship,' however, admits of varying degrees of
severity. The limits of personal deprivation and economic detriment
contemplated in the term "extreme hardship' cannot be stated in a hard
and fast rule. It is conceivable that the return of an alien who was
admitted as a foreign student to the country whence he came may result
in "extreme hardship' within the meaning of section 244(a)(1), as
amended.
Section 244(a)(1) contemplates that within certain limits the
Attorney General may exercise his discretion to suspend the deportation
of aliens whose removal from the United States would result in "extreme
hardship' to them. We are of the opinion, however, that the facts and
circumstances of respondent's case do not affirmatively establish
"extreme hardship' if he returns to Formosa. There are no substantial
equities in his case except those arising from the fact that he was
admitted as a student and permitted to remain in the United States for
more than the statutory period of seven years required for eligibility
under section 244(a)(1), as amended. He has no relatives in the United
States who would be adversely affected by his departure. He, in our
judgment, should be in a better position to obtain employment in Formosa
than when he entered the United States. These factors do not support a
finding of "extreme hardship' within the meaning of section 244(a)(1).
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
(1) Section 4, Senate Bill 3361, 87th Cong., 2d Sess., 1962.
(2) The conferees were referring to the liberalizing of section 249
by advancing the cut-off date.
(3) See p. 4029, U.S. Code Cong. & Adm. News, 87th Cong., 2d Sess.
Under Indiana law petitioner's marriage in that State while under 16
years of age, the age of consent for females, is voidable and not void;
therefore, in the absence of action to void the marriage, it is
considered valid for immigration purposes and will sustain a visa
petition to accord her spouse nonquota status.
The case comes forward on appeal from the order of the District
Director, Chicago District, dated December 10, 1963, denying the visa
petition for the reason that evidence presented in support of the visa
petition indicates that the petitioner was born on February 8, 1948, and
married the beneficiary on June 12, 1963; therefore, the petitioner's
marriage in Indiana was not legal in that the age of consent for females
entering into marriage in that state is sixteen.
The petitioner, a native-born citizen of the United States, seeks
nonquota status on behalf of her husband, a native and citizen of
Greece, born April 27, 1942. The parties were married at Crown Point,
Lake County, Indiana, on June 12, 1963. The visa petition indicates
that the petitioner was born on February 8, 1947, at Milwaukee,
Wisconsin. However, the file contains the birth certificate of the
petitioner showing that she was actually born on February 8, 1948, and
her birth certificate was filed on March 6, 1948.
An attempt was made to resolve the discrepancy in the age of the
petitioner. The petitioner's mother was interviewed on November 4,
1963, by a Service investigator. She insisted that her daughter was 16
years of age at the time of her marriage and that she accompanied her
daughter and was present during her marriage to the beneficiary and gave
her consent to the marriage. She would not furnish details of the
nature of the consent nor would she furnish any information concerning
an alleged subsequent church wedding ceremoney in Milwaukee. She
indicated that her daughter and her husband, the beneficiary, were then
living in Chicago. The petitioner's attorney stated that the
beneficiary expected to start work in Chicago on November 11, 1963, but
that the petitioner returned from Chicago to reside with her grandmother
in Milwaukee. Reference is made to an affidavit of the beneficiary that
he became acquainted with his wife about three months before their
marriage and that their marriage was consummated.
Upon the basis of the documentary evidence present in the record
concerning the birth of the petitioner, it is established that she was
born on February 8, 1948, and that at the time of her marriage on June
12, 1963, she was fifteen years and four months old.
The issue in the case is whether the marriage of the petitioner to
the beneficiary is a legal one in view of the fact that she was under
the age of consent for females before entering such a marriage. The
State of Wisconsin, where the parties resided at the time of their
marriage, provides in section 245.02 of the Wisconsin Statutes of 1961
that every female person who has attained the full age of marriage shall
be capable in law of contracting a marriage if otherwise competent;
that if the female is between the ages of 16 and 18, no license shall be
issued without the consent of the parents given before the county clerk
under oath or certified under the hand of such parents and properly
verified by affidavit before a notary public or other official
authorized by law to take affidavits, which certificate shall be filed
of record in the office of record in the office of said county clerk at
the time of the application for said license. Section 245.04 provides
if any person residing and intending to continue to reside in Wisconsin,
who is disabled or prohibited from contracting a marriage under the laws
of that state, goes into another state or country and there contracts a
marriage prohibited or declared void under the laws of Wisconsin, such
marriage shall be void for all purposes in Wisconsin with the same
effect as though it had been entered into in Wisconsin. The Indiana
Statutes, section 44-101, provides the same minimum age requirement of
16 years, but provides that if satisfactory proof is furnished to the
judge of any circuit, superior or juvenile court that the female is
pregnant or that the parties desire to be married to each other and that
the parents consent thereto, then the judge may waive the minimum age
requirement and by written instrument authorize the clerk of the court
to issue the marriage license to the parties if they are otherwise
qualified by law. Another provision of the Indiana Statutes, section
44-202, provides that if the female is under the age of eighteen years
the marriage license cannot be issued unless the application for the
license is accompanied by a verified written consent by the parents and
after due consideration and investigation, the judge may direct the
clerk to issue a license without requiring the submission of any
required consent; that a person applying for a license to marry is
required to submit a certified copy of his birth record or other written
evidence of the date and place of birth. The penalties for failure of
the clerk to observe these requirements are established. Section 44-106
provides that in the cases of voidable marriages, such as where either
of the parties to a marriage shall be incapable from want of age, the
same may be declared void on application of the capable party but the
children of such marriage begotten before the same is annulled shall be
legitimate.
The pertinent question in the case is whether this marriage was void
or voidable under Wisconsin or Indiana law. It has been held that a
marriage entered into by persons below the age of consent and above the
age of seven years who are capable of consummating the marriage is
voidable and not void; that during the time intervening between such a
marriage and a divorce on the ground of nonage the marriage is valid,
subject to a condition subsequent, such as a disaffirmance of the
marriage. /1/ The marriage of a woman when only fifteen years of age is
not an absolute nullity but is valid until annulled by the judgment of a
court. /2/ In Indiana it has been held that females under 16 years of
age cannot contract valid marriages and any female may have such a
marriage annulled unless the same is ratified after arriving at the age
of 16 years. /3/ Section 44-106 of the Indiana Statutes includes in the
list of voidable marriages those contracted by persons incapable from
want of age. When either of the parties to such a marriage shall be
incapable from want of age, the same may be declared void on application
of the incapable party in the case of want of age by a court having
jurisdiction to decree divorces, but the children of such marriages
begotten before the marriage is annulled shall be legitimate.
The law appears to be clear, that both in the State of Wisconsin and
in the State of Indiana, the marriage of a person under the age of
consent is voidable and not void; that it may be ratified after
arriving at the age of 16 years; and that it is valid between the date
of the marriage and the date of the divorce decree for nonage, subject
to a condition subsequent such as a disaffirmance. As far as the record
shows the evidence indicates that the parties have consummated their
marriage and there is no indication of any act of disaffirmance. The
parties appear to be living together except that they appear to be
temporarily separated due to the necessity of the beneficiary in
obtaining employment in Chicago during which time the petitioner has
returned to Milwaukee.
The fact that the petitioner might be permitted to disavow if she
does not ratify it after the age of 16 does not disturb the fact that it
is, at present, a valid and bona fide marriage. /4/ Upon the present
record the appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the visa
petition be approved for nonquota status.
(1) Swenson v. Swenson, 179 Wis. 536 192 N.W. 70; 17 Op.Atty.Gen.
Wis. 351,
(2) State v. Cone, 86 Wis. 498, 57 N.W. 50.
(3) Henneger v. Lomas, 145 Ind. 287, 44 N.E. 462.
(4) Cf. Matter of G , 9 I. & N. Dec. 89.
An alien who entered the United States as a nonimmigrant transit without a visa (TRWOV) is ineligible for adjustment of status under section 245, Immigration and Nationality Act, as amended, in view of the provisions of 8 CFR 214.2(c)(1).
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable -- No immigrant visa. (Withdrawn)
Lodged: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant -- Remained longer.
The case comes forward on appeal from the order of the special
inquiry officer dated October 17, 1963, denying the respondent's
application for adjustment of status under section 245 of the
Immigration and Nationality Act; granting her the privilege of
voluntary departure in lieu of deportation with the automatic order that
if the respondent failed to depart as required she should be deported
from the United States to the Philippines on the lodged charge only.
The record relates to a native and citizen of the Philippines,
female, married, who last entered the United States at Honolulu, Hawaii,
on August 3, 1963. She was in possession of Philippine Passport No.
27615 which did not contain a nonimmigrant or an immigrant visa for
admission to the United States and the respondent testified that she
never did obtain a nonimmigrant or an immigrant visa for entry into the
United States. She stated that she did obtain a visa for admission to
Mexico and the passport contains such a visa. The respondent identified
Exhibit 3 as relating to her. Exhibit 3 is a copy of the Form I-94
issued to her which shows that she was admitted at Honolulu, Hawaii, on
August 3, 1963, as TRWOV (transit without visa) for immediate and
continuous transit to Mexico by August 4, 1963.
The respondent testified that she entered the United States as a
tourist with the intention of proceeding to Mexico to get her visa and
then returning to the United States; that she was supposed to change
planes in San Francisco and go to Mexico the next day. However, when
she arrived at San Francisco her fiance informed her that he did not
have enough furlough time from the Marines to go to Mexico with her and
that they then decided to get married in the United States and try to
straighten out her status in this country. She was married on August
10, 1963, at Waukegan, Illinois, to a native-born United States citizen
who is now serving in the United States Marine Corps and is stationed in
North Carolina. The application for adjustment of status indicates that
her husband has filed a visa petition in her behalf which is pending.
At the hearing the trial attorney withdrew the charge contained in
the order to show cause and lodged a "remained longer' charge under
section 241(a)(2) of the Immigration and Nationality Act together with
two additional allegations of fact. The respondent conceded the
additional allegations that she was admitted to the United States as a
nonimmigrant transit without a visa for immediate and continuous transit
to Mexico and was authorized to remain in the United States until August
4, 1963, and that she has remained beyond that date. The record
establishes that the respondent is subject to deportation solely on the
lodged charge.
The respondent has applied for adjustment of status to that of a
permanent resident under section 245 of the Immigration and Nationality
Act. She is married to a United States citizen who has filed a visa
petition for nonquota status on her behalf which is now pending However,
under the provisions of 8 CFR 214.2(c)(1) as amended (28 F.R. 3078
(March 29, 1963)) it is specifically stated that the privilege of
transit without a visa may be authorized only under the conditions that
the alien will depart voluntarily from the United States and that he
will not apply for adjustment of status under section 245 of the Act.
Inasmuch as the record establishes that the respondent was admitted to
the United States as a transit without a visa on August 3, 1963 (Ex. 3)
and inasmuch as the provisions of the regulation referred to above were
then in effect, she is not eligible for adjustment of status under the
provisions of section 245 of the Immigration and Nationality Act and her
application for adjustment of status was therefore properly denied. The
brief of counsel which cites the case of Brownell v. Carija, 245 F. 2d
78 (D.C. Cir., 1957) has no application because the amended regulation
referred to was not then in effect.
The respondent has also applied in the alternative for the privilege
of voluntary departure. She is residing with her mother-in-law in
Milwaukee, Wisconsin. She stated that she does not have funds to depart
from the United States but that she can obtain funds from her husband or
from her mother-in-law. She has never been arrested and never been a
member of the Communist Party. The grant of voluntary departure appears
appropriate. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Respondent, a native and national of the Dominican Republic, has not established that because he was a former chief of a military intelligence unit (Servicio de Inteligencia Militar) during the Trujillo regime he would be subject to physical persecution within the meaning of section 243(h), Immigration and Nationality Act, if deported to the Dominican Republic.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant -- remained longer.
Respondent, a former chief of a military intelligence unit in the
Domnican Republic during the Trujillo regime, appeals from the portion
of the special inquiry officer's order which denies his application for
withholding of deportation to his homeland. He maintains that he would
face physical persecution in the Dominican Republic because of his
former position under Trujillo. /1/ On the basis of currently available
information, we affirm the special inquiry officer's action.
The hearings in respondent's case were held during July and August,
1962. We heard oral argument on October 29, 1962. In the interim, for
various reasons, it has not been feasible to render our decision. Over
most of the intervening time we have been waiting for information which
has only recently become available in final form.
Respondent is a native and national of the Dominican Republic and
married. He last entered the United States at New York on December 15,
1961 as a nonimmigrant foreign government official in transit to Canada.
He had gone first from the Dominican Republic to Spain where he
obtained his transit visa. Respondent testified that the Belaguer
government assigned him to the position of 2nd secretary at the
Dominican Embassy in Ottawa. He said he did not continue his journey to
Canada because he knew most similar assignments had been canceled.
Respondent's authorized stay in this country expired on January 13,
1962.
The special inquiry officer directed deportation first to Spain, in
accordance with respondent's designation, and alternatively to the
Dominican Republic. Respondent neither contests deportability nor
applies for voluntary departure.
S.I.M. (Servicio de Inteligencia Militar), the organization which
respondent headed for about seven or eight months prior to February or
March of 1961, was an infamous, quasi-military security unit of
Trujillo's regime. The record establishes S.I.M. was popularly
identified with carrying out many of the dictatorship's excesses.
Respondent testified S.I.M. was created for Trujillo's personal security
and to investigate and punish those who would oppose the dictatorship.
He said so-called "repressive investigations' involved physical torture
applied by a special corps of officers.
Respondent admits that during this tenure as chief of S.I.M. some 50
or 60 political prisoners were executed. He denies any direct
responsibility for such acts, contending that he merely transmitted
orders from Trujillo himself or from one of Trujillo's trusted
lieutenants, Johnny Abbes Garcia. Although respondent had the title of
chief of S.I.M., he disclaims any independent individual authority in
connection with the principal activities of that agency. He said if he
had refused to pass on orders to the persons who would carry them out he
himself would have been killed. He also said that he could not refuse
to accept the position of chief of S.I.M. when offered to him. In any
event, we are not concerned with respondent's guilt or innocence as
such. We are concerned only with determining whether, if returned to
the Dominican Republic, respondent would be subject to physical abuse
which would constitute physical persecution within the statutory
concept.
In May the United States District Court for the Southern District of
New York recommended Clodoveo Ortiz-Gonzalez' extradition to the
Dominican Republic. /2/ Ortiz, a former S.I.M. agent, appeared as a
witness for respondent in these proceedings. The court ruled against
Ortiz on his contention that the offenses with which he was charged were
political offenses, hence not extraditable. The court avoided other
political implications in the situation, noting that application to the
Secretary of State would furnish full protection against delivery of the
accused to any government which would not live up to its treaty
obligations, and would use the treaty as a subterfuge to secure the
accused from a country of political asylum. Subsequently the Secretary
of State directed Ortiz-Gonzalez's extradition, which has been effected.
/3/
Respondent does not clearly set forth the theory underlying his
contention that he will be physically persecuted in the Dominican
Republic if returned to that country. He anticipates that because of
his former position he will be killed.
Respondent believes primarily that upon arrival in his homeland mobs,
acting beyond control of the authorities, will violently attack him.
Respondent's own testimony reveals that he anticipates possible
prosecution in the Dominican Republic because of his association with
Trujillo but not unavailability of a fair trial, if prosecuted. Most of
the witnesses in respondent's behalf testified that charges are pending,
or likely to be brought, against him in the Dominican Republic. They
apparently believe he would not receive a fair trial. Moreover, they
agree it is highly probable mobs would kill him before the police could
take him into custody. At oral argument respondent's counsel said that
if by a miracle respondent survived attacks by mobs upon his arrival at
the Dominican airport, he would be jailed. Counsel implied that
respondent would not receive a fair trial.
Counsel for the Service says respondent fears criminal proceedings
and possible conviction in the Dominican Republic. He further states
respondent fears more strongly that, before the authorities have a
chance to try him, he will be seized by a mob and killed. Neither of
these eventualities, according to the Service representative, is
comprehended by the statutory language.
We exclude from the term "physical persecution' any governmental
action taken in an orderly, judicial manner to determine respondent's
responsibility for the former activities of S.I.M., and to prescribe
punishment only for acts so performed that, regardless of possible
political motivation, they would constitute ordinary crimes under any
civilized juridical system. To this extent, at least, we agree with
counsel for the Service.
We have no doubt that the populace in the Dominican Republic
associates respondent with the excesses attributed to S.I.M. and,
rightly or wrongly, holds him responsible for many of them. A newspaper
clipping (Ex. 3) refers to testimony at the trial of former S.I.M.
agents, accused in the death of the Mirabal sisters, an event well-known
in the Dominican Republic. That event excited the public's imagination
and aroused its resentment. Respondent admits that he was in charge of
S.I.M. when the Mirabal sisters met their deaths. Two of his witnesses
corroborated his official position at that time. Yet, whatever the
situation at the time of the hearing and oral argument, the subsequent
march of events, during which order has been restored in the Dominican
Republic, eliminates any need of now considering whether respondent, if
deported to the Dominican Republic, would face unrestrained mob violence
and whether such violence is equivalent to physical persecution for
which deportation may be withheld.
Looking at respondent's evidence in the light most favorable to him,
the issue here resolves into two questions. Is respondent likely to be
charged in the Dominican Republic with any offense? If so, would any
proceedings under that charge reflect fair and adequate judicial
processes?
Respondent's counsel stated at oral argument that respondent should
not be tried at all because he has not committed a voluntary act which
involves the Dominican penal law. Presumably counsel would contend that
for this reason any imprisonment would result from a trial so unfair
that conviction would be a foregone conclusion. Carrying this argument
one step further, counsel would contend that such imprisonment
constitutes physical persecution within the purview of section 243(h),
Immigration and Nationality Act.
The Court in Gonzalez considered a somewhat similar contention.
Ortiz-Gonzalez maintained that he acted as a military subordinate
obeying the orders of a superior and in the exercise of public
authority. The court found that under Dominican law, as under our own,
public officials may be criminally liable for acts which fall well
outside duly constituted public authority. The court also found that
the Dominican Republic had made out a prima-facie case that the
extraordinary homicidal acts ascribed to Ortiz fall into this category.
We do not have in this record evidence of respondent's active
participation in any killings attributed to S.I.M. such as was before
the court in Gonzalez. This difference is one of degree, however, since
respondent admittedly was involved in the activities of S.I.M. The
basic question still goes to the availability of a fair trial under the
circumstances here. If respondent has no criminal responsibility under
Dominican law for offenses committed by agents of S.I.M. while he was
their chief, fair and adequate judicial procedures would afford him
sufficient opportunity to establish his innocence.
Ortiz-Gonzalez also alleged that the offenses with which he was
charged were political, rather than criminal. The court, as we have
noted, rejected this contention as a matter of law, leaving to the
Secretary of State any extralegal considerations which might support it.
We are not limited here by the provisions of a treaty and the
extradition statute. We need only reach an opinion whether respondent
would be physically persecuted in the Dominican Republic. Yet
proceedings under section 243(h) of the Immigration and Nationality Act
and extradition proceedings have much in common. /4/ Consequently, our
function here resembles to some extent the functions of both judicial
officers and the Secretary of State in extradition proceedings. In
determining whether respondent should be returned to the Dominican
Republic we may look broadly at the situation which he would face there.
If respondent is charged in the Dominican Republic with having
committed any offenses in behalf of the Trujillo regime, we believe he
would receive a fair trial. Although the Trujillo regime considered
that prisoners of S.I.M. executed during respondent's tenure as chief of
that organization were political prisoners, the circumstances suggest
violations of penal provisions of Dominican law. We believe Dominican
law, in determining the nature of any offenses with which respondent
might be charged and his responsibility in their perpetration, would
adequately protect respondent's interests. We rule adversely to
respondent on any contention that offenses with which he might be
charged were not criminal but political. /5/ In particular, we do not
perceive that any such offenses were manifestly so political that their
punishment might constitute physical persecution.
Our conclusion that respondent's case does not warrant withholding of
his deportation to the Dominican Republic rests in part upon official
notice of current conditions in the Dominican Republic, in part upon the
outcome of Gonzalez, and in part upon certain other nonrecord
information, privileged under the regulations. /6/ None of the
available current information indicates that, if returned to the
Dominican Republic, respondent is likely to be physically persecuted.
Respondent's counsel contends that the special inquiry officer
improperly declined to subpoena certain witnesses. Those witnesses were
all former officials of, or otherwise associated with, the Trujillo
regime. They left the Dominican Republic about the time of that
regime's fall. Their testimony could supply only background information
and possibly greater detail about some of the matters of record. We do
not perceive that their testimony, no matter how favorable to
respondent, could overcome the reliable information on which we base our
conclusion. We need not consider, therefore, whether the special
inquiry officer's refusal to grant respondent's request for subpoenas
was error.
We do not discuss other contentions of respondent except to note that
he fears a change in government in his native country interrupting the
present democratic trend. We answered a similar contention in Matter of
Diaz. /7/ We take official notice that the executive leaders of the
Dominican Republic's Government have changed during the pendency of
respondent's case on appeal. This change, so far as we can ascertain at
this time, has, if anything, lessened any chances that respondent would
be physically persecuted in the Dominican Republic. We shall dismiss the
appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
(1) Section 243(h), Immigration and Nationality Act, 8 U.S.C. 1253(
h).
(2) In re Gonzalez, 217 F.Supp. 717 (S.D.N.Y. 1963).
(3) 18 U.S.C. 3184.
(4) Matter of Perez-Jiminez, Int. Dec. No. 1292.
(5) Compare In re Gonzalez, supra, /2/ and authorities cited therein.
Respondent suggests primarily that he might be prosecuted for
"association with evildoers.' He relies upon the testimony of witnesses,
particularly that of a former lawyer in the Dominican Republic
associated with him in S.I.M., to establish the existence of this
provision of Dominican law and its effect.
(6) "The determination under section 243(h) of the Act may be based
upon information not of record if, in the opinion of the special inquiry
officer or the Board, the disclosure of such information would be
prejudicial to the interests of the United States' 8 CFR 242.17(c). In
our opinion the nonrecord information relied on here comes within this
provision.
The Attorney General's use of undisclosed information in exercising
his discretion has the approbation of the Supreme Court. Jay v. Boyd,
351 U.S. 345 (1956); Millutin v. Bouchard, 370 U.S. 292 (1962).
(7) Int. Dec. No. 1270.
To sustain a charge of deportability under section 241(a)(6), Immigration and Nationality Act, the ultimate burden of proof rests with, and requires, the Government to overcome the possibility that membership in the Communist Party was devoid of political implications, since unexplained voluntary membership and activity therein over a period of time does not justify an inference of awareness of the political nature thereof (Gastelum-Quinones v. Kennedy, 374 U.S. 469 (June 17, 1963)).
CHARGE:
Order: Act of 1952 -- Section 241(a)(6) 8 U.S.C. 1251(a)(6) (1958)
-- After entry, an alien who was a member of the Communist Party of the
United States.
Respondent, a 67-year-old married male, a resident of the United
States since his admission for permanent residence in 1922, has been the
subject of two Board orders declaring him deportable on the charge
stated above for membership in the Communist Party in 1950. The
Service, although of the belief that respondent is deportable, moves the
Board to evaluate the deportation record in light of the decision in
Gastelum-Quinones v. Kennedy, 374 U.S. 469 (June 7, 1963). This
evaluation is requested so that if decision as to deportability stands
and respondent seeks judicial review, the court will have before it a
deportation record which has been administratively considered in light
of the latest Supreme Court pronouncement on the law involved. Counsel
agrees that reconsideration is necessary but contends that the Board's
evaluation of the record in light of the Court's decision should result
in termination of proceedings. We have reconsidered the case and agree
that Gastelum-Quinones requires termination of these proceedings.
Gastelum-Quinones, the petitioner, an alien about 53 years old, a
resident of the United States since 1920, had been ordered deported on
the same charge involved in the instant case, for membership in the
Communist Party during 1949 and 1950. He did not testify at his
deportation hearing; two Government witnesses established that he had
paid dues to the Party, that he had attended several Party meetings at
the local level, that he had attended a Party convention, and that he
attended a Party unit executive board meeting.
The Court (5-4) found the petitioner was not deportable. The Court's
opinion reveals that the charge could not be sustained unless the
Service eliminated "the possibility that the alien's joining was without
understanding the nature of the Party as a distinct political unit,' at
473. The Court, examining the record for direct or indirect proof that
the petitioner possessed the requisite awareness, held that the Service
had failed to bear its burden. As to direct proof, the Court found none
to establish that the alien was aware the Party was a political
organization, or that he was aware of the aims and purposes of the Party
(knowledge of the Party's advocacy or violence is not required), or that
he had knowledge of its international relationships. Indirect proof
consisting of the fact that the petitioner had attended a Party
convention, the Court characterized as deficient in that the Government
witness "neither described what petitioner would have heard at the
convention nor suggested that there was any prerequisite such as
officership or executive responsibility to petitioner's attendance, at
the convention.' As the Government witness' testimony that at Party
conventions "they would have discussions on what was going on in the
Party, and what drives were coming up,' the Court pointed out that the
Government witness "did not elaborate this statement with reference to
the convention that petitioner attended or to what petitioner did
there.' As to the Government witness' testimony, that petitioner had
been present at a Party executive board meeting, that he "supposed' that
petitioner was a Party official, and that attendance was "probably'
limited to officials of the club, the Court stated that the witness "did
not elaborate specifically upon the significance of petitioner's
presence at the one meeting, making only the general statement that " a
t this time I cannot say definitely the purpose of that meeting but it
was either organizational or to form an agenda for the regular
meetings'' (all quotations from note 6, at 477).
As to the alien's silence, the Court considering the slimness of the
evidence, and the drastic sanction involved, ruled that evidence of
awareness of the political nature must be based on something "more
directly probative than a mere inference based on the alien's silence,'
at 479.
The dissenters concluded that Gastelum-Quinones was deportable. They
pointed out that the evidence established that at conventions "they
would have discussions on what was going on in the Party, and what
drives were coming up,' at 485. The dissenters stated, ibid:
After regular attendance at Party meetings and functions, and
regular financial support for its activities, it is rather
fanciful to believe petitioner was still unaware of the political
nature of the Communist Party. It is doubtful that the meetings
were so ineptly run or structured.
The Service contends that the following facts directly or indirectly
support the finding or inference that the respondent was aware of the
political nature of the Party:
The record establishes that the respondent presided at four or
five closed meetings of the communist party at his apartment in
1949 or 1950; that he held frequent conversations with government
witness Pikes regarding communist party affairs, during this
period; that respondent stated he had been a member "quite a
number of years' (p. 58); that the Stockholm Peace Petition as a
Party function and device for recruitment of Party members was a
subject of discussion; that communist party literature was
discussed; that the respondent had tried to recruit furniture
workers for the communist party; that as recently as 1957 the
respondent helped arrange a meeting at his apartment with two
communist party officials; that there was a discussion about
communist party recruiting; that respondent was quoted as having
stated he was disposed to leave a dinner at one time because two
of the persons present "were deviating from the Party Line, and
that they were not good Communists' (p. 76).
Counsel's contention, apart from attacks upon the credibility of the
Government witness, is in brief that the Government witness' testimony
concerning respondent's Party membership fails to establish that
respondent was aware of the political nature of the Party or that
respondent was an officer or had executive responsibility of an official
nature. More specifically, counsel states that the record establishes
not that respondent chaired the four or five Communist Party meetings at
his home in an official position but rather that he was little more than
a host in his own home. He is of the belief, that the record is
deficient since it fails to show the substance of the conversations and
the nature of the Party affairs discussed with the Government witness;
that a simple admission of membership by respondent does not elucidate
the character of the membership; that the concern with the Stockholm
Peace Petition does not establish the political nature of the Party;
that the effort to recruit workers to the Party was not shown to have
resulted in success; that respondent's chance presence at a meeting
between the Government witness and officials at which the Party's work
in the North and South were discussed is no more evidence that the
respondent was aware of the political nature of the Party than was
Gastelum-Quinones' attendance at a Communist Party convention; and that
respondent's characterization of two individuals as deviators from the
Party line and bad communists was without significance in the absence of
evidence as to what the Party line was or what constituted a bad
communist. Counsel further contends the evidence fails to reveal the
nature of Party activities or the nature of respondent's work, except
perhaps to show that respondent's efforts were to better working
conditions among furniture workers or to carry out trade union
objectives.
From this review, it is clear that the charge before us cannot be
sustained unless the Service rules out the possibility that respondent's
affiliation with the Party was devoid of political implications. We
believe the Service has failed to sustain its burden. There is no
direct proof in the record that the respondent was aware of the
political nature of the Party; nor does the evidence justify an
inference that respondent was aware of the Party's political aspect.
Evidence that the respondent presided at four or five meetings in his
apartment does not justify such an inference in absence of proof that
respondent presided because he had an official obligation to do so, or
that matters relating to the Party's political nature were discussed.
Respondent's presence at the Party meetings and at the meeting with the
Party officials is an aspect of membership which appears to differ
little in quality from Gastelum-Quinones' attendances at Party meetings,
the convention and the unit executive board meeting. The testimony of
the Government witness fails to show participation in Party activities
to such a degree that it would be fair to infer that the alien had to
know the political nature of the Party.
Although we find the charge has not been sustained on this record we
shall not terminate proceedings without affording the Service a chance
to proceed further if it desires. Until Gastelum-Quinones was decided,
the administrative view was that an alien's unexplained voluntary
membership and activity in the Communist Party over a period of time
justified an inference that he knew the political nature of the Party.
Until Gastelum-Quinones, we were unaware of the degree of involvement
required before such an inference was justified. Had the Service been
aware of the standard which Gastelum-Quinones exacts, the Service
presentation of its case might have been different. Therefore, if the
Service wishes to offer further testimony as to the nature of the
respondent's membership and activity, it may, within three months from
the date of this order apply for reopening of proceedings to the special
inquiry officer who held this hearing or his substitute. If application
for reopening of proceedings is not made within the period, or
authorized extension thereof, these proceedings shall be considered
terminated.
ORDER: It is ordered that the outstanding order of deportation be
and the same is hereby withdrawn.
It is further ordered that if the Service fails to move for reopening
of proceedings within three months from the date of this order or any
authorized extension thereof, the proceedings shall be considered
terminated.
(1) Designation of country of deportation within step 3 of section 243(a), Immigration and Nationality Act, is solely at the discretion of the Attorney General.
(2) A Chinese crewman who arrived in the United States on a Netherlands vessel may be deported to that country under step 3 of section 243(a) of the Act and what the Netherlands may do after accepting the alien is of no consequence under the statute.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer -- nonimmigrant crewman.
This case comes forward on appeal from an order entered by the
special inquiry officer on October 10, 1963, denying the respondent's
application requesting that his deportation to the Netherlands be
withheld as provided in section 243(h) of the Immigration and
Nationality Act and directing that he be deported from the United States
to the Republic of China on Formosa on the charge set forth in the order
to show cause. The special inquiry officer further directed that the
respondent be deported to the Netherlands in the event the aforenamed
country advises the Attorney General that it is unwilling to accept him,
the respondent, into its territory and it was further directed that he
be deported to Hong Kong in the event the aforenamed country advises the
Attorney General that it was unwilling to accept the respondent into its
territory. The respondent, a 30-year-old male, native and citizen of
China, has resided continuously in the United States since last entering
at Port Everglades, Florida on or about September 7, 1962 as a
nonimmigrant crewman, authorized to remain in the United States the
period of time his vessel remained in port, in no event to exceed 29
days. He failed to comply with the terms of his admission and has
remained in the United States without authority.
Deportation proceedings were instituted against the respondent on
October 3, 1963. Hearings in deportation proceedings were held at New
York, New York on October 7 and October 10, 1963. The record reflects
that counsel and the respondent admitted the truth of the factual
allegations set forth in the order to show cause and conceded
deportability on the charge stated therein. The evidence in this record
clearly establishes that the respondent is subject to deportation under
section 241(a)(2) of the Immigration and Nationality Act, in that, after
admission as a nonimmigrant under section 101(a)( 15) of the Act, he
remained in the United States for a longer time than permitted.
It is conceded that the respondent would not be subject to physical
persecution in the event of his deportation to the Republic of China on
Formosa (p. 3). The respondent was sailing on a vessel of Netherlands
registry at the time of his arrival in the United States on September 7,
1962. The Service is in possession of a valid Netherlands seaman's book
issued to the respondent at Amsterdam, Holland on October 11, 1961. The
Service also has possession of a Hong Kong seaman's identification book
issued to the respondent at the British Crown Colony of Hong Kong on
November 3, 1959. The validity of the latter document expired on
November 2, 1962 (p. 5). The respondent testified he signed on a Dutch
ship at Hong Kong and went to Holland; that after the Netherlands
seaman's identification book was issued to him at Amsterdam, Holland on
November 11, 1961 he sailed out of Holland for a period of nine months
prior to his arrival in the United States in September 1962 (p. 8). The
respondent first entered Hong Kong from China in 1957 where he resided
until 1959. The respondent has no family in Hong Kong or the
Netherlands. He testified that he always had a berth on a Netherlands
ship when sailing from that country.
Counsel's argument that the Service should attempt to deport the
respondent to Hong Kong before directing his deportation to the
Netherlands in the event the Republic of China on Formosa refuses to
accept him is without merit. The country of selection is solely within
the discretion of the Attorney General (cf. Hom Sin v. Esperdy, 209 F.
Supp. 3). There is no basis for counsel's obscure and chimerical
charges that if the respondent's deportation to the Netherlands is
effected the end result will be his deportation to Communist China with
whom the Netherlands Government maintains diplomatic relations. Section
243(a) of the Immigration and Nationality Act provides the procedure for
deportation of aliens. First the alien is given the choice of
designating the country to which he prefers to be deported or as in this
case no designation is made by the alien, his deportation shall be
directed to the country of which the alien is a subject national
provided that country is willing to accept him. If such country fails
to advise the Attornel General that it will accept him within the time
set forth in the statute, the alien's deportation will be effected as
provided in step (3) of section 243(a) of the Act. Step No. (3) allows
for deportation to any one of seven categories of countries within the
discretion of the Attorney General. The Service notes that the
Netherlands Government has indicated its willingness to accept the
respondent into the Netherlands. The validity of the respondent's Hong
Kong seaman's identification book expired on November 2, 1962. His
testimony shows that he has not lived in that country since 1959. In
this connection the respondent's deportation to Holland is warranted
under alternative provisions (1) and (2) of step (3) of section 243(a)
of the Immigration and Nationality Act.
A valid seaman's identification book was issued to the respondent by
the Netherlands Government at Amsterdam on November 11, 1961 and as
previously noted he sailed from Holland aboard vessels of Netherlands
registry for at least nine months prior to his arrival in the United
States as a crewman aboard a vessel of the Netherlands registry in
September 1962. There is nothing in this record that in any manner
supports counsel's claim that if the respondent is deported to Holland
he will then be deported to the mainland of China where he fears he will
suffer physical persecution. It has been held that where a Chinese
entered the United States as a seaman and overstayed his leave his
deportation to Holland would not be stayed on the ground that the alien
once in Holland would be sent out of that country. What the Netherlands
may do after accepting an alien is of no consequence under the statute
(cf. U.S. ex rel. Tie Sing Eng v. Murff, 165 F.Supp. 633, aff'd 266 F.2d
957; cert. den. 361 U.S. 840 and reh. den. 361 U.S. 904).
After carefully considering all the evidence of record, the decision
of the special inquiry officer will be affirmed inasmuch as there is no
claim of physical persecution as defined under section 243(h) of the
Immigration and Nationality Act. Accordingly, the following order will
be entered.
ORDER: It is ordered that the appeal be dismissed.
Since managerial employees charged with the training or instruction
and supervision of entertainers and waiters in a theatre restaurant are
not employed in the "responsible capacity' required by 22 CFR 41.41,
they are not properly classifiable as nonimmigrant employees of a treaty
investor under section 101(a)(15)(E)(ii) of the Immigration and
Nationality Act.
Both applicants are natives and citizens of Japan who last entered
the United States on August 29, 1961 at which time they were admitted as
nonimmigrants of the class described in section 101(a)(15)(H)(i) of the
Act. Their last extension of stay expired on June 30, 1963. By their
present applications, filed on May 6, 1963, they seek to change their
status to that of a nonimmigrant employee of a treaty investor as
defined in section 101(a)(15)(E)(ii). The applications were filed while
they were continuing to maintain the status under which they were first
admitted and their prospective employer, Kiyoshi Sakurai, has invested a
substantial amount of capital in a theater restaurant in Honolulu called
the Ishii Gardens, Inc. (On July 1, 1963 he was granted a change of his
nonimmigrant status from visitor to treaty investor.)
The minimum statutory requirements have been met and the sole issue
herein is whether the applicants are properly classifiable as "employees
of a treaty investor'.
I find no legal or administrative precedent setting out a clear
definition of an "employee of a treaty investor' nor does the
legislative history of section 101(a)(15)(E)(ii) throw any light on the
question.
The pertinent State Department regulation (22 CFR 41.41) requires
merely that an employee be "employed by a treaty investor in a
responsible capacity'.
The treaty in question is the Treaty of Friendship, Commerce and
Navigation between the United States and Japan. It was signed in Tokyo,
Japan on April 2, 1953 and entered into force on October 30, 1953 (4 UST
2063; TIAS 2863). The pertinent portions of the treaty are Articles I
and VIII, which read:
Article I. Nationals of either party shall be permitted to
enter the territory of the other party and to remain therein: (a)
for the purpose of carrying on trade between the territories of
the two parties and engaging in related commercial activities;
(b) for the purpose of developing and directing the operations of
an enterprise in which they have invested or in which they are
actively in the process of investing a substantial amount of
capital; and (c) for other purposes subject to the laws relating
to the entry and sojourn of aliens.
Article VIII. Nationals and companies of either party shall be
permitted to engage, within the territories of the other party,
accountants and other technical experts, executive personnel,
attorneys, agents and other specialists of their choice.
Moreover, such nationals and companies shall be permitted to
engage accountants and other technical experts regardless of the
extent to which they may have qualified for the practice of a
profession within the territory of such other party, for the
particular purpose of making examinations, audits, and technical
investigations exclusively for, and rendering reports to, such
nationals and companies in connection with the planning and
operation of their enterprises, and enterprises which they have a
financial interest, within such territories.
Applicant Kobayashi is to be the manager of the Japanese Dancing and
Entertainment Department of the restaurant; applicant Doi is to be the
manager of the Service Department. In an interview conducted on May 16,
1963, an attempt was made to ascertain precisely the duties of these
so-called managerial positions. The interview elicited only the
information that Miss Kobayashi is to train and supervise the
entertainers in Japanese art, culture and tradition. Miss Doi is to
instruct and supervise 10 or more waiters and waitresses in the art of
preparing and serving Janpanese foods.
These positions, so vaguely described in the record, are not the
accountants, technical experts, executive personnel, attorneys, agents
and other specialists contemplated by the Treaty. If anything, they are
service personnel, hired at a rather meager salary ($200 a month) to
assist in the operation of a restaurant. They will have little to do
with directing the operations of the enterprise.
Even conceding, arguendo, that these positions could fit the category
of "specialists' mentioned in the treaty, there remains the question of
the applicants' ability to fill these positions. The record establishes
only that they are entertainers of a type commodity referred to as line
dancers. (Indeed, their original classification as persons of
distinguished merit and ability under section 101(a)(15)(H)( i) is
highly questionable but is not in issue here.) The record is completely
devoid of any evidence tending to show that these applicants have even
slight experience in the managerial or executive field.
It is concluded that the applicants have failed to establish that
they will be employed in the responsible capacity required by 22 CFR
41.41 and that they are accordingly not properly classifiable as
nonimmigrant employees of a treaty investor under section 101(a)(15)(
E)(ii).
ORDER: It is ordered that the applications be denied.
As inquiry would not have resulted in a proper determination of inadmissibility, respondent's willful presentation of a spurious offer of employment in connection with his application for an immigrant visa, even though such misrepresentation resulted in his conviction of conspiracy to violate 18 U.S.C. 1001, is not a material misrepresentation under section 212(a)(19), Immigration and Nationality Act, and, consequently, does not vitiate the visa for the purposes of section 212(a)(20).
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at time of entry -- procured visa by fraud or by willfully misrepresenting material fact (section 212(a)(19) of the Act).
Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at
time of entry -- immigrant, no valid visa (section 212(a)(20) of the
Act).
This is an appeal by the examining officer from the order of the
special inquiry officer terminating proceedings. The appeal will be
dismissed.
The respondent, a 23-year-old single male, a native and citizen of
Mexico, was admitted for permanent residence on May 1, 1961, upon
surrender of an immigrant visa. The Service claims that this visa was
invalid since it was obtained by wilful misrepresentation concerning an
offer of employment.
When the respondent applied for a visa, he was told to furnish an
affidavit of support and an offer of employment. He obtained the
affidavit of support from his brother, a legal resident of the United
States, and through correspondence with relatives in the United States,
obtained a letter offering him employment as a farm hand. However,
respondent was told by his relatives that the letter for which he had
agreed to pay $350 was one for the record only and that no actual
employment should be expected. The letter was in fact a forgery. The
respondent states he knew he could not expect employment from the writer
of the letter, but did not know it was a forgery. He thought the writer
had given the letter as a favor. Respondent was convicted on January
10, 1962, in the United States District Court at Sacramento, California,
for conspiracy to violate 18 U.S.C. 1001, by making false statements or
knowingly using false writings. (He was sentenced to five years'
imprisonment with all but 30 days of the sentence suspended.)
The special inquiry officer sustained neither charge; he ruled that
although the forged offer of employment cut off inquiry, it did not
relate to a material matter because inquiry would not have resulted in a
proper determination that the alien was one likely to become a public
charge. The Service Representative contends that since materiality was
an element of the crime for which the respondent was convicted, the
Board should hold that the misrepresentation was material in the
obtaining of the visa. The contention must be dismissed. The Board is
not bound by the decision in the criminal case, for there are different
tests for materiality in the criminal case and the immigration case. In
the immigration case the test of materiality is whether the matter
concealed concerned a ground of inadmissibility or a probable
inadmissibility (Matter of S and B C , Int. Dec. No. 1168). In the
criminal case (in those jurisdictions where materiality is required) the
test is merely whether the false statement "could affect or influence
the exercise of a Governmental function' (United States v. Allen, 193
F.Supp. 954 (S.D. Cal., 1961)).
An analogous situation exists in regard to false statements amounting
to perjury in visa and immigration matters. A person could be convicted
for perjury for making a material false statement under oath although
the same false statement would not necessarily constitute a material
misrepresentation in determining whether a visa had been obtained by
fraud (Matter of S C , 7 I. & N. Dec. 76, 90). Since the standards of
materiality in criminal and civil immigration matters differ, the
existence of the conviction here does not preclude the Board from making
its own determination as to the materiality of the misrepresentation.
(Neither does the letter of the Consul stating that the Vice Consul
would testify that the misrepresentation was material preclude the Board
from making its own conclusions in the matter. See In re Field's
Petition, 159 F.Supp. 144, 146 (S.D.N.Y., 1958).)
Would the inquiry which was cut off by the submission of the offer of
employment have resulted in a proper determination that the alien was
excludable as one likely to become a public charge? We think not. When
respondent applied for a visa he was 22 years of age. He was sound of
body and had about ten years of farming experience. He had no
specialized training, but had five years of schooling and apparently
planned to seek work for which he was qualified. He spoke no English,
but this was no handicap for he would work among people who spoke
Spanish. He had about $50 in assets. He had a brother gainfully
employed in the United States and he had other close relations who were
interested in his welfare and who worked to bring him to the United
States. The brother was making $85 a week in permanent employment; he
was unmarried; he had been sending money to his family in Mexico, and
he was interested in helping his brother. Respondent had previous
experience in the United States, having spent about three months here as
a contract worker. At that time he worked both in the fields and in a
cannery. His services appear to have been satisfactory for he was
retained here until his contract was completed. Respondent had no
criminal record. (After admission for permanent residence, he secured
employment in the United States which was interrupted only by civil and
criminal matters connected with his efforts to come to the United States
as a permanent resident.)
The examining officer contends that the likelihood of becoming a
public charge is not the only ground which must be considered in
determining whether the respondent was ineligible for the issuance of a
visa and inadmissible to the United States. The examining officer is of
the belief that the respondent would have been excludable from the
United States as one who admitted the essential elements of a crime
involving moral turpitude, for he had conspired to impair the lawful
function of a department of the United States in violation of 18 U.S.C.
371, a crime involving moral turpitude (Matter of E , Int. Dec. No.
1164).
It may well be that as an original proposition, the test for
determining whether a visa has been obtained by fraud could have been
made dependent upon whether there had been an obstruction of
Governmental functions; however, this has not been the test which has
resulted from the years of adjudications both administrative and
judicial. Historically, the rule has been stated without reference to
the obstruction of the Government functions which exist, of course, in
each case where there is a misrepresentation concerning a matter within
the lawful functions of the Government. The rule which is applied holds
that wilful misstatements of an alien made in attempting to obtain a
visa bar him from admission (1) if they were material, in which case he
is barred because the visa had been obtained by fraud, or (2) if perjury
were committed in the attempt to obtain the visa, in which case he is
barred because he had committed a crime involving moral turpitude.
Misstatements which did not amount to perjury (although they did impair
the lawful function of a department of the United States) would not
serve to make an alien inadmissible (37 Op.A. G. 293, 1933). Congress
has not questioned the rule.
We shall continue to determine materiality of misrepresentation and
the admissibility of an alien who had made a misrepresentation in
immigration matters, not by his liability to prosecution for impairing
the lawful functions of a department of the Government, but by the
standards set down by the Attorney General in Matter of S and B C ,
supra.
ORDER: It is ordered that the appeal of the examining officer be and
the same is hereby dismissed.
The special inquiry officer terminated proceedings; appeal by the
examining officer was dismissed by the Board on August 7, 1962. The
Service believes that both charges are sustained and requests that the
Board reconsider its dismissal. The motion will be denied.
Respondent, a 23-year-old single male, a native and citizen of
Mexico, was admitted to the United States for permanent residence on May
1, 1961.
Respondent was convicted on January 10, 1962 in the United States
District Court for conspiracy to violate 18 U.S.C. 1001 for making false
statements or knowingly using false writings (in connection with an
application for a visa) and given a five-year sentence to imprisonment;
he served 30 days, the remainder of the sentence was suspended. The
Service contends that since materiality was an element of the crime for
which respondent had been convicted, materiality should be found present
in the deportation proceeding in considering the nature of the
misrepresentation which had been made in obtaining the visa. We pointed
out in our previous order that the test for materiality is different in
the criminal case from the test in the deportation case. The test for
materiality in deportation cases, insofar as it relates to the instant
case, has two elements^first, did the misrepresentation cut off a
material line of inquiry; second, if it did, might an inquiry have
resulted in a proper determination that the alien was inadmissible to
the United States. Both elements must exist before a misrepresentation
may be found material (Matter of S and B C , Int. Dec. No. 1168). On
the other hand, in a prosecution under 18 U.S.C. 1001, if only the first
element of the test in deportation proceedings is present, materiality
exists and can support a conviction. Since the second element is not a
factor in the criminal case, a finding of materiality there cannot be
controlling in the deportation case where the second element is of equal
importance with the first in determining materiality.
The motion enumerates the federal laws which could have been violated
when respondent made false statements before the consul and points out
that had the consul known the true facts, he might have obtained an
admission of the commission of crime from respondent who would thereby
become inadmissible to the United States. Apart from this, the Service
contends, the consul, if in possession of the true facts, would have
made at least a temporary refusal of the visa. The test for materiality
laid down by the Attorney General in Matter of S and B C , supra, does
not concern itself with possible violation of federal laws or the
possibility of a temporary refusal. B C had made willful
misrepresentations when he applied for a visa; he probably violated the
same federal laws which are mentioned in the motion. And, it is
obvious, that had the consul been aware that B C made
misrepresentations, he would have been justified in making a temporary
refusal. Nevertheless, the Attorney General's test as to materiality
made no reference to the possible violation of federal laws or to the
fact that a temporary refusal was possible. While the Attorney General
did not discuss possible violations of federal law or temporary
refusals, Matter of S C , 7 I. & N. Dec. 76, one of the two precedents
relied upon in the Board's order concerning B C dealt with possible
violations of law (p. 86); and U.S. ex rel. Jankowski v. Shaughnessy,
186 F.2d 580, 582, 2d Cir. (1951), cited by the Attorney General,
indicates the use of a temporary refusal as a test; moreover, the fact
that the Attorney General made the existence of materiality dependent
upon what an investigation might have shown, would seem to rule out the
possibility of using a temporary refusal as a test.
Examination of Matter of L D L R , Int. Dec. No. 1207, cited by the
Service as support for the proposition that materiality exists for
immigration purposes if there is a reasonable possibility that an alien
would have made admissions concerning participation in crime which would
have made him inadmissible, reveals that the misrepresentation there was
material because it involved the concealment of conviction of a crime
involving moral turpitude. The existence of the conviction made the
alien ineligible for the issuance of a visa.
The motion takes issue with our finding that respondent was not one
likely to become a public charge at the time he applied for admission.
Our determination was made upon the state of the record as it existed,
when the respondent applied for his visa. After careful review of the
Service contention we see no reason to change our conclusion. Reference
in our order, to events occurring after respondent's entry was to meet
the Service contention at oral argument that respondent's work record in
the United States demonstrated his inability to find employment.
The motion now raises the contention that respondent's visa was not
valid because he did not furnish full and correct information on his
visa application as required by the Immigration and Nationality Act and
State Department regulations concerning the issuance of a visa. We do
not concur in this conclusion. In B C , supra, there was a failure to
furnish full and truthful information; the Attorney General touched on
whether the visa was a valid one (footnote on p. 6), but there was no
finding that the visa was invalid. To accept the Service position that
any failure to furnish full or correct information regardless of the
nature of the information results in an invalid visa, would in effect
make every misrepresentation a material one; this approach would have
made unnecessary the Congressional provision for the exclusion of a
alien for obtaining a visa because of a material misrepresentation
(section 212(a)(19) of the Act; see Matter of S and B C , supra, p.
4). It appears best to use the visa charge in situations where the visa
is actually invalid; for example, where a visa has been issued without
specific authority or by an improper source, or it has been altered,
procured by fraud, or presented after the period of validity has
expired. This approach will give effect to both the provision
concerning validity of visas and the provision concerning procurement of
a visa by fraud. In view of this conclusion we need not enter into an
elaborate analysis of the Service position other than to mention briefly
two matters. Regulations and laws requiring complete and correct
information in visa applications have been in existence since 1924 and
have not been utilized as the basis for declaring visas invalid (See, In
re Field's Petition, 159 F.Supp. 144, 146, 3d full para., S.D.N.Y.
(1958)). The fact that the misrepresentation charge is now a separate
charge although prior to the Immigration and Nationality Act it was
coupled with a visa charge, appears to be irrelevant. It was true
before the Act, as it is true now, that a visa charge could be sustained
even though the misrepresentation charge could not. There is,
therefore, no significance to be drawn from the fact that the law now
specifically provides for a misrepresentation charge (See, U.S. ex rel.
Fink v. Reimer, 96 F.2d 217 (2d Cir., 1938); U.S. ex rel. Percas v.
Karnuth, 28 F.Supp. 597, W.D.N.Y. (1939)).
ORDER: It is ordered that the motion be and the same is hereby
denied.
The decision of the Board of Immigration Appeals in this case holding
the respondent Saturnino Martinez-Lopez not deportable has been
certified to me by the Board for review, pursuant to 8 CFR 3.1(h)(1)(
iii), upon motion of the Commissioner of Immigration and Naturalization.
The Commissioner has requested review because of the possible impact of
the Board's decision on other cases. The decision raises several
problems concerning the application of the criteria enunciated in my
opinion in Matter of S and B C , 9 I. & N. Dec. 436, for determining the
materiality of a misrepresentation in cases involving section 212(a)(19)
of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19).
The respondent's deportation is being sought on the ground that he
was excludable at the time he entered the United States as an immigrant
because he had procured his visa by willfully misrepresenting a material
fact (Section 212(a)(19)) and because he was not in possession of a
valid unexpired immigrant visa as required by section 212(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. 1182(a)(20). /1/ The record
shows the following.
In the winter of 1960 61, the respondent planned to immigrate to the
United States. At that time, he was a citizen and resident of Mexico,
in his early twenties and unmarried. He had about 5 years of schooling
and had begun to work on the family farm when he was 12 or 13. He had
worked in the United States for 3 months as a laborer in 1958. His
brother, Salvador Martinez-Lopez, who had emigrated to the United
States, lived in Los Angeles and was employed by a furniture company at
an annual salary of $4,000. In the past, Salvador had contributed to
the support of his relatives in Mexico; the respondent had several
other relatives living in the United States. When the respondent
inquired at the United States Consulate at Monterrey, Mexico, concerning
the papers required for an immigration visa, he was advised that he
needed, among other things, an affidavit of support and an offer of
permanent employment in the United States.
Having heard from neighbors that work offers could be obtained from
one Jose C. Miranda of Stockton, California, for $350, the respondent
asked his brother Salvador to get one for him. Because of the distance
from Los Angeles to Stockton, Salvador asked one Reyes Fragoso, the
husband of a cousin, who resided in Oakland, to talk to Miranda.
Fragoso did so, and for $350, furnished by Salvador, Miranda sent to the
respondent a letter of permanent employment to which Miranda had forged
the signature of one Pellegri, a ranchowner. Attached was a note from
Miranda advising the respondent not to go to the Pellegri ranch because
he already had enough workers. Respondent inferred from the note that
the Pellegri letter was only for the record and that he could not expect
employment by Pellegri. He thought the letter had been given merely as
a favor or accomodation but did not know that it was a forged document.
Subsequently the respondent applied at the United States Consulate at
Monterrey for a visa, submitting an affidavit of support, executed by
his brother, and the purported Pellegri letter, although he knew that he
could not expect to be employed by Pellegri. When asked about his
destination in the United States, he gave the address of Pellegri's
ranch. The respondent was issued a visa on April 27, 1961, and was
admitted to the United States as an immigrant a few days later. At that
time he had in his possession from $60 to $70. He went directly to his
brother in Los Angeles and never contacted Pellegri. For about a week
he stayed with his brother, then obtained work as a cook through another
relative.
At about that time Miranda's forgeries were discovered. The
respondent, his brother Salvador, his cousin Reyes Fragoso, and Jose
Miranda were indicted in the United States District Court for the
Northern District of California for conspiracy to violate 18 U.S.C.
1001. /2/ The indictment contained two counts. The first count charged
them with having conspired to make false and fictitious representations,
or to make or to use writing or documents, knowing them to contain
false, fictitious or fraudulent statements, to the Department of State
for the purpose of enabling the respondent to enter the United States as
an immigrant. The second count in effect charged the defendants other
than Salvador with having caused Miranda to falsify the work offer.
The respondent, his brother and his cousin were tried before the
court, a jury having been waived. The court found them guilty on the
first count. It held that work offer was "material' because the visa
would not have been issued but for it.' /3/ It acquitted the respondent
and his cousin on the second count, finding that a reasonable doubt
existed as to the defendants' knowledge that the work offer was not
signed by Pellegri. The court stated that they were victims, albeit
willing victims, of circumstances and not flagrant or malicious
violators of the law. The respondent was given a prison sentence of 5
years, of which all but 30 days was suspended, and placed on probation
for 5 years. The others also received 5-year terms which were suspended
in their entirety.
The Immigration and Naturalization Service then instituted
proceedings to deport the respondent on the grounds described above.
The Service charged that the respondent had obtained his visa by
presenting to the United States consul the Pellegri work offer, although
he knew that he did not and would not have employment with Pellegri;
that he had concealed from the consul the fact that the letter had been
obtained from Miranda for $350, and that he withheld those facts because
he believed that the consul would not have issued the visa had he been
told the truth. The special inquiry officer dismissed the proceedings
on the ground that the respondent's misrepresentation was not material
and, hence, did not render him excludable under section 212(a)(19) or
vitiate the visa for the purposes of section 212(a)(20). In reaching
this conclusion, the special inquiry officer applied the tests of
materiality laid down in Matter of S and B C , supra, at 448-449, viz.:
First, does the record establish that the alien is excludable
on the true facts?
Second, did the misrepresentation tend to shut off a line of
inquiry which is relevant to the alien's eligibility for admission
?
Third, if a relevant line of inquiry has been cut off, might
that inquiry have resulted in a proper determination that the
alien be excluded?
The special inquiry officer answered the first question in the
negative. He took the position that in connection with the
determination as to whether an applicant for an immigration visa is
excludable under section 212(a)(15) of the Act, 8 U.S.C. 1182(a)(15), as
an alien likely to become a public charge, /4/ a work offer is not
legally required as an absolute condition for the issuance of the visa,
and therefore that the purpose of such a document is merely to assist
the consul in his determination. Viewed in that context, the record did
not establish the respondent's excludability on the true facts Rather,
the evidence established that, even in the absence of the work offer,
the respondent was not likely to become a public charge.
The special inquiry officer answered the second question in the
affirmative; he concluded that the submission of the work offer did cut
off further investigation by the consul into the public charge issue.
The third question, however, was answered by him in the negative, since
nothing had been adduced to suggest that a further investigation might
have resulted in a proper determination that the respondent was likely
to become a public charge. Accordingly, he held that the respondent's
misrepresentation with regard to the spurious Pellegri work offer was
not material for the purposes of section 212( a)(19), /5/ and similarly
did not vitiate the visa for the purpose of section 212(a)(20).
On appeal by the Service, the Board of Immigration Appeals affirmed
the ruling of the special inquiry officer. It recognized that, as
judicially interpreted, materiality was an element of the offense under
18 U.S.C. 1001 of which the respondent had been convicted. It ruled,
however, that the district court's holding that the work offer was a
material document was not conclusive in the deportation proceeding.
Under 18 U.S.C. 1001 a statement, representation, or document is
material if, under the formulation of United States v. Allen, 193 F.
Supp. 954 (S.D. Cal.), it "could affect or influence the exercise of a
Government function.' This has a broader reach than the term
"materiality' in section 212(a)(19) of the Immigration Act, as it is
defined in Matter of S and B C , supra. The respondent's conviction
under 18 U.S.C. 1001 therefore did not necessarily establish that the
misrepresentation was material within the meaning of section 212(a)(
19). The Board therefore felt itself free to examine the question de
novo, and concluded that the respondent's misrepresentations were not
material because nothing the consul or the immigration authorities could
have discovered, but for the misrepresentation, might have resulted in a
proper determination that the respondent was excludable as a person
likely to become a public charge. /6/ On the Service's motion for
reconsideration the Board adhered to its decision.
The Commissioner raises essentially the following points:
1. Whether materiality of the misrepresentation for deportation
purposes was established by the respondent's conviction.
2. Whether the Board properly applied the materiality tests
established by Matter of S and B C . In this connection the
Commissioner also argues that the test in Matter of S and B C is not
applicable where the alien's conduct in obtaining a visa constitutes an
offense against the United States.
3. Whether a significant misrepresentation, even if it does not
amount to a "material' misrepresentation, renders a visa invalid for the
purpose of section 212(a)(20).
Unquestionably the respondent did make a misrepresentation to the
consul. He submitted a document which he knew was not a bona fide work
offer. However, the immigration statute, section 212(a)(19), supra,
requires that an alien's misrepresentations must be material to the
question of his admissibility to the United States under the immigration
laws. I agree with the Board that the respondent's conviction of
conspiracy to violate 18 U.S.C. 1001, for the purpose of which the same
misrepresentation was found to be material, does not conclusively
establish its materiality for deportation purposes.
At the outset it should be noted that, although ordinarily a court
decision may be res judicata or operate as a collateral estoppel in a
later administrative proceeding, there is some basis for doubt as to
whether this rule applies in cases where, as here, Congress has vested
primary responsibility for enforcing a statute in an administrative
agency and not in the courts. See Title v. Immigration & Naturalization
Service, 322 F.2d 21 (C.A. 9); Davis, Administrative Law Treatise, sec.
18.11 (Vol. II, pp. 619-623). /7/ Section 242(b) of the Immigration and
Nationality Act, 8 U.S.C. 1252(b), provides that " d etermination of
deportability in any case shall be made only upon a record made in a
proceeding before a special inquiry officer,' and that " t he procedure
so described shall be the sole and exclusive procedure for determining
the deportability of an alien * * *.' There is, therefore, a basis for
the argument that in the instant case the judicial finding of
materiality could not, as a matter of law, relieve the special inquiry
officer from his duty of making an independent determination of
materiality. /8/
Assuming, however, that the doctrine of collateral estoppel is
applicable in cases of this kind, I agree with the Board's view that on
the question of materiality there was no true identity of issues in the
criminal case and the deportation proceeding. Even if statutes use the
same language, a determination under one is not necessarily binding in a
proceeding under another since the purposes of the statutes may differ
and the contexts in which the language is used may not be the same. See
Title, supra at 25, fn. 11. The determination in the criminal case to
the effect that the work offer was "material' might be considered to be
binding in the deportation proceedings only if the word "material' has
the same meaning in prosecutions under 18 U.S.C. 1001 as in deportation
proceedings involving section 212(a)(19) of the Immigration and
Nationality Act. Cf. Hines v. Welch, 23 F.2d 979 (C.A. D.C.);
Thompson v. Flemming, 188 F.Supp. 123 (D. Ore.). This, however, is not
the case.
The issue of materiality under 18 U.S.C. 1001 is merely whether the
misrepresentation was "calculated to induce action or reliance by an
agency of the United States.' Brandow v. United States, 268 F.2d 559,
565; United States v. Allen, 193 F.Supp. 954, 957, supra. In contrast,
the opinion in Matter of S and B C , supra, rejects the notion that an
alien becomes deportable for every false statement "calculated to induce
action or reliance' by a consul; a false statement is not material
unless the alien would have been excludable on the true facts, or unless
the misrepresentation has shut off a line of inquiry which might have
resulted in a proper determination of excludability. The term
"material' does not have the same meaning in 18 U.S.C. 1001 and in
section 212(a)(19) of the Act, and a determination under the former that
the work offer was material is therefore not to be regarded as
conclusive in proceedings involving the latter, where the term
"materiality' has a more restricted scope. Accordingly, I conclude that
the Board of Immigration Appeals properly held that the inquiry into the
materiality of the respondent's misrepresentation was not foreclosed by
his conviction for conspiring to violate 18 U.S.C. 1001.
I find no error in the Board's conclusion that the materiality
standards of Matter of S and B C were properly applied in this case. As
pointed out above, that opinion holds that the issue of materiality for
purposes of section 212(a)(19) turns on three questions: First, whether
the alien is excludable on the true facts; second, whether the
misrepresentation tended to shut off a line of inquiry relevant to the
alien's admissibility; and third, whether, if a relevant line of
inquiry has been shut off, that inquiry might have resulted in a proper
determination that the alien be excluded.
In the context of this case, the initial question is whether the
respondent would have been excludable under section 212(a)(15), supra,
footnote 4, as a person likely to become a public charge. Although
under the statutory language the question for visa purposes seems to
depend entirely on the consular officer's subjective opinion, both the
administrative and judicial decisions hold that the question must be
reexamined de novo on an objective basis when it arises in deportation
proceedings. See Matter of M , 4 I. & N. Dec. 532, 538; Matter of S C
, 7 I. & N. Dec. 222, 225; Matter of C T P , 8 I. & N. Dec. 134-135;
In re Field's Petition, 159 F.Supp. 144, 146 (S.D.N.Y., 1958). There is
no error in the determinations below that the respondent was not
excludable on the true facts; that, in other words, the evidence in the
deportation proceeding establishes that he would not have been
excludable as a person likely to become a public charge even though he
did not have an offer of employment in the United States.
The provision in the immigration laws excluding aliens likely to
become public charges had its origin in section 2 of the Immigration Act
of 1882, 22 Stat. 214, and has been continued in all subsequent
immigration statutes. It has been the subject of extensive judicial
interpretation. The general tenor of the holdings is that the statute
requires more than a showing of a possibility that the alien will
require public support. Some specific circumstance, such as mental or
physical disability, advanced age, or other fact reasonably tending to
show that the burden of supporting the alien is likely to be cast on the
public, must be present. A healthy person in the prime of life cannot
ordinarily be considered likely to become a public charge, especially
where he has friends or relatives in the United States who have
indicated their ability and willingness to come to his assistance in
case of emergency. See, e.g., Ex parte Mitchell, 256 Fed. 229 (N.D.
N.Y.); Ex parte Hosaye Sakaguchi, 277 Fed. 913, 916 (C.A. 9); U.S. ex
rel. Mantler v. Commissioner of Immigration, 3 F.2d 234 (C.A. 2); Ex
parte Turner, 10 F.2d 816, 817 (S.D. Cal.); Ex parte Sturgess, 13 F.2d
624, 625 (C.A. 6); Gabriel v. Johnson, 29 F.2d 347, 349 (C.A. 1); U.
S. ex rel. Minuto v. Reimer, 83 F.2d 166, 168 (C.A. 2). While it
appears that in appropriate cases consular officers have followed the
practice of requiring an alien to submit evidence of support, there is
no indication that a guaranty of employment has been a prerequisite.
The legislative history of the Immigration and Nationality Act of
1952, which retained the public charge provision as section 212(a)(15),
contains a review of its background and interpretation. See S. Rept.
No. 1515, 82d Cong., 2d Sess., pp. 346-348. This review refers to the
practice of requiring evidence of support in appropriate cases and to
the judicial holdings. /9/ Employment offers are not mentioned, and
there is nothing to show that Congress intended such offers to be
required as an absolute condition for satisfying the public charge
provision.
Nor is the administrative practice of the Department of State to the
contrary. The Department's regulations provide that a conclusion of
ineligibility under section 212(a)(15) is to be predicated upon
circumstances indicating that the alien "will probably become a charge
upon the public after entry into the United States;' the disability,
however, may be removed by the furnishing of a bond or undertaking. 22
CFR 42.91(a)(15). The Department's instructions to consular officers on
this subject admonish them to be "flexible' and to predicate their
decision upon facts relating to the alien's "age, physical condition,
vocation, and existing conditions in the United States coupled with
their probable effect on the applicant's likelihood of becoming a public
charge after admission into the United States.' (State Department Visa
Handbook, Notes on 22 CFR 42.91(a)(15), Note 1.1.) While consular
officers are authorized to consider "the promise of a job' (Note 3.1),
this in not stated as an absolute prerequisite; alternative means of
satisfying the statute are provided, viz., the possession of sufficient
funds or assurances of support by relatives or friends in the United
States (Notes 1.2; 4). The record shows that the respondent was an
able-bodied man in his early twenties, without dependents; that he had
no physical or mental defects which might affect his earning capacity,
and that he had performed agricultural work for nearly 10 years. He had
previously worked for 3 months in the United States, and his immigration
was sponsored by a brother who had lived in the United States for
several years and was earning approximately $85.00 a week in permanent
employment. The special inquiry officer was fully justified in
concluding that the respondent was not likely to become a public charge,
and, in the light of the judicial interpretation of section 212(a)(15)
and the pertinent administrative regulations and instructions, that he
was admissible in the absence of an employment offer.
The respondent's misrepresentation, however, did shut off a line of
inquiry relevant to his eligibility for a visa. It may be assumed that
if the consular officer had known that the work offer was spurious, he
would have examined the evidence of support more carefully. It does not
appear, however, that this would have resulted in a proper determination
that the respondent was excludable. Further investigation of the
relationship between the sponsor and the respondent would have shown
that the sponsor was a devoted brother who had in the past sent money to
his family in Mexico and who was genuinely interested in assisting the
respondent; that, indeed, he had assisted him in his his immigration
efforts by paying $350 for the work offer. Further examination also
would have disclosed that the respondent had other relatives in the
United States who were willing to assist him in finding work. There is
nothing in this case to suggest that further investigation would have
disclosed any reasonable ground for the proper denial of a visa. In
view of the particular circumstances of this case, it appears therefore
that the respondent's misrepresentation with respect to the work offer
was not of a material nature.
The Commissioner seeks to distinguish this case from Matter of S and
B C , on the ground that "this record establishes that the respondent
was in the very act of participating in one or more crimes against the
United States at the very moment he got the visa and unquestionably
would not have received the visa if the forgery had been known.' The
fact that the respondent committed a crime against the United States at
the very moment he received his visa is not peculiar to this case. It
would seem that virtually every alien who at the time of his visa
application makes a misrepresentation "which was calculated to induce
action or reliance by an agency of the Government' (Brandow v. United
States, supra) violate 18 U.S.C. 1001 at that very moment. Accordingly,
this case is not distinguishable from the situations normally covered by
Matter of S and B C , supra.
In view of the findings below that the respondent did not know that
Miranda had forged the work offer, I am not confronted here with the
problem as to whether Matter of S and B C also applies to a situation
where a misrepresentation to the consular officer shuts off a line of
inquiry into a crime other than the misrepresentation itself or other
than a wrongdoing inseparably connected with it. Cf. Matter of L D L R,
9 I. & N. Dec. 623.
The Commissioner finally urges that the respondent's misstatements
not only constituted a material misrepresentation within the meaning of
section 212(a)(19) but that they vitiated the visa itself and thus
rendered the respondent inadmissible under section 212(a)(20), supra.
It has been consistently recognized, however, that the type of
misrepresentation which invalidates a visa is substantially idential
with that which renders the alien excludable under section 212(a)(19).
See Matter of S C , 7 I. & N. Dec. 76, 89-90, and the authorities cited
therein. This rule appears to be correct and in accord with the general
proposition that a representation invalidates a visa only if it is
material or amounts to a fraud.
For the foregoing reasons, the decision of the Board of Immigration
Appeals is affirmed.
(1) Section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), subjects to
deportation aliens who were excludable, inter alia, under sections 212(
a)(19) and (20). Paragraphs (19) and (20) respectively make excludable:
(19) Any alien who seeks to procure, or has sought to procure,
or has procured a visa or other documentation, or seeks to enter
the United States, by fraud, or by willfully misrepresenting a
material fact;
(20) * * * any immigrant who at the time of application for
admission is not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing identification card, or
other valid entry document required by this chapter, and a valid
unexpired passport, or other suitable travel document, or document
of identity and nationality, if such document is required under
the regulations issued by the Attorney General pursuant to section
211(e).
(2) The section reads as follows:
Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and willfully
falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent
statements or representations, or makes or uses any false writing
or document knowing the same to contain any false, fictitious or
fraudulent statement or entry, shall be fined not more than
$10,000 or imprisoned not more than five years, or both.
(3) This finding of materiality was required although the defendants
were indicted under a clause of 18 U.S.C. 1001 which does not in haec
verba require that the false statement, representation, or document be
material, and the indictment did not allege that the work order was a
material document. It is, however, established in the Ninth Circuit, in
which the case was tried, and probably in the majority of the circuits,
that materiality is an element of every violation of 18 U.S. C. 1001,
and not only of its first clause, in which it is specifically mentioned.
Branlow v. United States, 268 F.2d 559, 564-565 (C.A. 9); Paritem
Singh Poonian v. United States, 294 F.2d 74, 75 (C.A. 9); Freidus v.
United States, 223 F.2d 598, 601-602 (C.A.D.C.); United States v.
Zambito, 315 F.2d 266, 268-269 (C.A. 4), certiorari denied, 373 U.S.
924. The Ninth Circuit has also held that materiality need not be
specifically set forth in the indictment, provided the context warrants
an inference of materiality. Partiem Singh Poonian v. United States,
supra; Dear Wing Jung v. United States, 312 F.2d 73, 75 (C.A. 9).
(4) Section 212(a)(15) excludes " a liens who, in the opinion of the
consular officer at the time of application for a visa, or in the
opinion of the Attorney General at the time of application for
admission, are likely at any time to become public charges.'
(5) The special inquiry officer was careful to stress that his
conclusions were limited to the precise facts of the case and that he
was not holding that a work offer could never be material.
(6) The Board rejected the Service's contention that had the
respondent told the truth he would have been excludable under section
212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), as one who had admitted the
essential elements of a crime involving moral turpitude, viz., a
conspiracy to violate 18 U.S.C. 1001, in connection with his visa
application. Relying on 37 Op.Atty.Gen. 293, it held that historically
misrepresentations to a consul rendered an alien excludable under
section 212(a)(9) only if they amounted to perjury.
(7) Thus the National Labor Relations Board has held that even if a
court has decreed specific performance of a contract, it may set aside
the contract in a proceeding under the Labor-Management Relations Act.
Professor Davis states that this is proper not only because of the
difference in parties "but also because of the congressional intent that
primary responsibility for enforcing policies of the Act shall be in the
Board and not in the courts.' Davis, op. cit., p. 619.
(8) In this connection, cf. National Labor Relations Board v.
Pacific Intermountain Express Co., 228 F.2d 170, 176 (C.A. 8),
certiorari denied, 351 U.S. 952; Lane v. Railroad Retirement Board, 185
F.2d 819, 822 (C.A. 6); Carpenter v. Flemming, 178 F.Supp. 791, 793
(N.D.W.Va.).
(9) It had been suggested that support bonds be substituted for
affidavits of support.
(1) An illegitimate child could not derive U.S. citizenship under section 314 of the Nationality Act of 1940.
(2) Although both his admission to the United States for permanent residence and his mother's naturalization as a U.S. citizen occurred while he was under 16 years of age, an illegitimate child born January 1, 1932 in Finland, did not derive U.S. citizenship under section 321( a)(3) of the Immigration and Nationality Act, since he was over 16 years of age on December 24, 1952, the effective date of the Act.
(3) Since conviction within the meaning of section 241(a)(4), Immigration and Nationality Act, exists when the following elements are present: (1) if there has been a judicial finding of guilt, (2) the court takes action which brings the case in the category of those which are pending for consideration by the court -- the court orders that the defendant be fined or incarcerated or the court suspends the imposition of sentence, and (3) the action of the court is considered a conviction by the state court for at least some purpose, an alien convicted on a plea of guilty of the crime of simple robbery by a Colorado court which ordered imposition of sentence suspended and placed him on probation for 5 years has been convicted.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of two crimes after entry, to wit, simple robbery and
statutory rape.
The case comes forward on appeal from the decision of the special
inquiry officer dated May 23, 1963 ordering respondent deported to
Finland on the charge contained in the order to show cause.
The first issue is that of alienage. The respondent was born out of
wedlock on January 1, 1932 in Finland. The respondent's mother was
naturalized on January 15, 1945 in the United States District Court at
New York. The respondent was admitted to the United States for
permanent residence on June 16, 1947. At the time of his admission to
the United States he was under 16 years of age, being 15 years and five
months old. Since the mother's naturalization and the respondent's
lawful admission for permanent residence occurred subsequent to the
effective date of the Nationality Act of 1940 on January 13, 1941, the
respondent could not acquire United States citizenship under the
provisions of section 2172 of the Revised Statutes of the United States.
Counsel urges that respondent is a United States citizen under
section 314(a) or section 314(b) of the Nationality Act of 1940 or, in
any event, under section 321(a)(3) of the Immigration and Nationality
Act. Section 314 of the Nationality Act of 1940 provides that a child
born outside the United States of alient parents, or of an alien parent
and a citizen parent who has subsequently lost citizenship of the United
States, becomes a citizen upon fulfillment of the following conditions:
(a) The naturalization of both parents; or
(b) The naturalization of the surviving parent if one of the parents
is deceased; * * *
(c) The naturalization of the parent having legal custody of the
child when there has been a legal separation of the parents; and if --
(d) Such naturalization takes place while said child is under the age
of eighteen years; and
(e) Such child * * * thereafter begins to reside permanently in the
United States while under the age of eighteen years.
Counsel concedes that the respondent is an illegitimate child and
that there has never been any adjudication of paternity. He argues that
in this case the mother is to be considered as the parent or that there
should be a presumption of death of the putative father and that the
surviving parent is the mother. He cites several cases dealing with
legitimate children where the surviving parent was divorced with the
right of custody which was sufficient for derivation of citizenship and
another case involving a widowed mother who became a citizen while her
legitimate child was a minor residing in the United States. /1/
It may be pointed out that the cited cases involve legitimate
children and there is no evidence in the instant case that the mother is
the surviving parent or that the putative father has died. /2/ In the
report of the Committee on the Judiciary pursuant to Senate Resolution
137 it was recognized that under the 1940 Act a child born out of
wedlock and never legitimated could not derive United States citizenship
either through the naturalization of the putative father or through his
mother. /3/ However, in granting naturalization to a foreign born
illegitimate child, who was born on July 13, 1944, was admitted to the
United States for permanent residence on July 26, 1947 and whose mother
became naturalized on September 1, 1950 petitioned for her illegitimate
child under section 322 of the 1952 Act, the court by granting such
naturalization indicated that automatic derivative citizenship would not
have been available to such a child under the 1940 Act. /4/
Counsel also urges that the respondent derived citizenship under the
provisions of section 321(a)(3) of the Immigration and Nationality Act.
This section provides for acquisition of citizenship upon the
naturalization of the mother if the child was born out of wedlock and
the paternity of the child has not been established by legitimization
and if such naturalization takes place while such child is under the age
of 16 years; and such child is residing in the United States pursuant
to a lawful admission for permanent residence at the time of the
naturalization of such parent or thereafter begins to reside permanently
in the United States while under the age of 16 years.
In Matter of L , 7 I. & N. Dec. 512, after first noting that under
the Nationality Act of 1940 a child born out of wedlock did not derive
citizenship through its mother, the facts were that the subject was born
out of wedlock on April 1, 1938 in Martinique, the mother was
naturalized on November 20, 1951 and the subject was admitted for
permanent residence on December 4, 1953. In analyzing section 321(a) of
the Immigration and Nationality Act, the following basic requirements
were set forth: (1) that the parent or parents be naturalized; (2)
that such naturalization take place while the child is under the age of
16 years; and (3) that the child take up lawful permanent residence in
the United States before reaching the age of 16 years. It was held that
the subject acquired United States citizenship upon his lawful admission
to the United States for permanent residence on December 4, 1953.
Likewise, in Matter of T , 7 I. & N. Dec. 679, a child born out of
wedlock was held to have acquired citizenship under section 321(a) of
the Immigration and Nationality Act when she reentered the United States
as a returning resident in 1955 prior to her 16th birthday, her mother
having been naturalized a United States citizen in November 1952. It
was held that the law in effect when the last material condition is met
is controlling; that one of the conditions of section 321 set forth in
subsection (5) is that the child must begin to reside permanently in the
United States or must have been lawfully admitted to the United States
for permanent residence while under the age of 16 years. The original
entry of the applicant in 1948, prior to the Immigration and Nationality
Act of 1952, did not operate to confer upon her any derivative
citizenship under section 321(a) of the Act. However, her reentry in
1955 while she was still under 16 years of age operated to confer
derivate citizenship under section 321(a) of the 1952 Act.
In Matter of L , 8 I. & N. Dec. 272, the respondent, an illegitimate
child, was born in Jamaica on September 21, 1938. He was lawfully
admitted to the United States for permanent residence on June 2, 1949
when about 10 years of age. His mother was naturalized on December 12,
1949 when respondent was 11 years of age. The Board quoted with
approval the special inquiry officer's order that there was no doubt
that under the law in effect at the time the respondent entered the
United States and at the time of his mother's naturalization, section
314 of the Nationality Act of 1940 did not provide for derivation of
United States citizenship through the naturalization of his mother
because he was an illegitimate child. The Board then went on to restate
the holding in Matter of L , 7 I. & N. Dec. 512, that the basic
requirements of section 321 of the 1952 Act were that: (1) the parents
or parent be naturalized; (2) such naturalization take place while the
child is under the age of 16 years; and (3) the child takes up lawful
permanent residence in the United States before reaching the age of 16
years. It was not necessarily the passage of the Act which was the last
material condition but that fact that number two of the three material
conditions is an "open condition', a continuing situation, permitting
the statute to bestow citizenship on respondent so long as he was under
the age of 16 when the law was passed. The Board referred to the case
of Espindola v. Barber, 152 F.Supp. 829 (N.D. Cal., 1957), as not a
binding precedent because Espindola was past 16 when the 1952 Act became
effective and clearly could not have brought himself within the terms of
section 321 of the Immigration and Nationality Act.
The case of Espindola v. Barber, supra, involved an alien
illegitimate son, born October 22, 1935 whose mother became a
naturalized citizen on March 7, 1950. The plaintiff was lawfully
admitted to the United States for permanent residence on September 4,
1943. The court then cited the legislative history contained in Senate
Report No. 1515, 81st Cong., 1st Sess., 708, for recognition of the fact
that under the 1940 Act a child born out of wedlock and never
legitimated could not derive United States citizenship under the
naturalization of either his father or mother. Turning to section 321(
a)(3) of the Immigration and Nationality Act (8 U.S.C. 1243(a)(3)), the
court stated that it was clear that Congress intended to and did change
the law in this regard in 1952 and did not intend, by the Act of that
year, merely to restate what it thought the prior law had been. The
court held that the 1952 Act could not be construed as having
retroactive effect by the broad language of the savings clause set forth
in section 405 (Title 8 U.S.C.A. 1101, note). It held that the language
of the savings clause was broad enough to apply as well when the
Government is relying on the provision; that the plaintiff, prior to
the 1952 Act, had the "status' or "condition' of an alien not eligible
to claim derivative citizenship and in view of the savings clause,
section 321(a)(3) of the 1952 Act could not operate to affect that
"status' or "condition'. The court cited United States v. Menasche,
348 U.S. 528 and other cases and held that the savings clause could not
operate to affect the plaintiff's "status' or "condition' and that the
plaintiff was not a citizen of the United States.
In the instant case the respondent was not eligible for derivative
citizenship under the 1940 Act or any prior Act. The respondent was
over 20 years of age when section 321(a)(3) of the Immigration and
Nationality Act became effective on December 24, 1952. The Act had no
retroactive effect and there was no status or condition to be affected
by the savings clause inasmuch as the respondent was an alien under
prior law and could not benefit by the new Act because he was then
overage. It is concluded that alienage has been established.
The crimes which form the basis of the specification in the order to
show cause are simple robbery for which the respondent was convicted in
September 1955 in Colorado and statutory rape in violation of
Connecticut statutes for which the respondent was convicted on March 22,
1960. The crimes were committed respectively on August 29, 1955 and
January 10, 1960. From the very nature of the crimes and the interval
in time and locale of their commission, it is obvious that they did not
arise out of a single scheme of criminal misconduct.
Counsel at oral argument raises the contention that the record of the
crime in Colorado did not establish a conviction. He does not dispute
the fact that the crime involves moral turpitude. However, the record
of conviction shows that on September 26, 1955 in the District Court in
and for the City and County of Denver, Colorado the court found that the
evidence sustained the plea of guilty entered by the defendant; that
the cause was continued for hearing on the probation report; that on
September 28, 1955 the court granted the petition of the defendant that
he be placed on the county work gang for a period of 90 days and further
ordered that the cause be continued for hearing on probation; that on
December 21, 1959, the court after hearing and the report of the
probation officer, ordered that imposition of sentence be suspended for
a period of five years, the court to retain jurisdiction until that
time, and that defendant be released from custody.
The main force of counsel's argument is that the action of the court
in suspending the imposition of sentence for five years and placing
respondent upon probation did not result in such a finality of
conviction as would sustain the order of deportation, citing Pino v.
Landon, 349 U.S. 901 (1955), as well as certain order Colorado cases.
At the outset it may be noted that the order to show cause is predicated
upon the second section of section 241(a)(4) which renders deportable an
alien who at any time after entry is convicted of two crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct, regardless of whether confined therefor and regardless of
whether the convictions were in a single trial. It may be noted that
the statute, 39-16-6 Colorado Revised Statutes of 1953, empowers the
court to grant probation and provides that the period of probation
together with any extension thereof shall not exceed five years.
The deportation statute does not make confinement the test of
deportability but concerns itself with conviction solely. In one of the
cases cited by counsel /5/ it was held that in a criminal case the
sentence is the judgment and that a judgment need not be entered upon a
verdict.
The matter involved in the hearing has been the subject of previous
adjudication. In the latest case of Murillo Gutierrez v. Immigration
and Naturalization Service, No. 18565 (9th Cir., October 11, 1963),
there was involved an alien who was convicted in California on a
narcotic charge, was found guilty by the court which ordered a probation
report and continued proceedings; thereafter the court suspended
proceedings and placed the petitioner on probation. On review the
petitioner contended that the Immigration Service erred in determining
that the appellant had been convicted of a crime which subjected him to
deportation and erred in finding that the proceedings upon which the
appellant was found guilty had reached such finality that an order of
deportation could be predicated thereon. The court noted that the
statute required only a conviction and not a judgment of conviction and
that under California law the word "convicted' signified the status of a
person after entry of a plea of guilty to a criminal charge or against
whom a verdict of guilty of a criminal charge has been returned by a
jury; and the phrase "a judgment of conviction' means the imposition of
a sentence upon a person who has been convicted of a criminal charge
after a plea of guilty or the rendition of a guilty verdict. /6/ The
court also shared the views expressed in Arrellano-Flores v. Hoy, 262
F.2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921, that it was inclined
to believe that perhaps here Congress intended to do its own defining
rather than leave the matter to the variable state statutes. Credence
for this view can be found in the fact that the present statute reads
"convicted' while its predecessor read "convicted and sentenced.' It
would appear that federal courts have generally taken the view that a
plea of guilty or finding of guilty, which is in repose and remains
undisturbed amounts to a conviction. The court went on to distinguish
the case of Pino v. Landon, 349 U.S. 901, which involved a
Massachusetts procedure within which the petitioner had the right to a
trial de novo in the superior court if he took an appeal from the
District Court, the District Court suspended the imposition for one year
and placed the sentence on file with the crucial difference that if the
court ever removed the case from file to require the petitioner to serve
the sentence, he would then he entitled to a de novo review on appeal.
The court held that under these circumstances, especially the
availability of the de novo review, there was no adjudication which
could be recognized as final in Massachusetts that the petitioner had
committed any crime.
In the instant case there was a conviction pursuant to the
respondent's plea of guilty which was appealable. It was not necessary
that a judgment of conviction be entered upon the verdict of guilty.
The difference from the situation existing in the case of Pino v.
Landon, supra, is obvious.
The administrative decision cited by counsel, Matter of J , 7 I. & N.
Dec. 580, concerned a case in Florida in which the court had postponed
imposition of sentence. The decision noted that unlike the cases which
suspended imposition of sentence which have been held to constitute a
final conviction, this postponement of imposition of sentence did not
support a finding of deportability.
Later administrative decisions have recognized that for deportation
purposes a conviction exists where the following elements are present:
(1) if there has been a judicial finding of guilt, (2) the court takes
action which brings the case in the category of those which are pending
for consideration by the court -- the court orders that the defendant be
fined or incarcerated or the court suspends the imposition of sentence,
and (3) the action of the court is considered a conviction by the state
court for at least some purpose. /7/ It is concluded that in the
instant case the conviction for simple robbery in Colorado meets this
test of finality of conviction. The second conviction, of statutory
rape in Connecticut, clearly involves moral turpitude also. It is
concluded that the charge contained in the order to show cause is
sustained.
The respondent is not eligible for adjustment of status pursuant to
section 245 of the Immigration and Nationality Act because he was
originally lawfully admitted for permanent residence and subsequently
became deportable, a fact which does not vitiate his prior lawful entry.
/8/ He is ineligible for voluntary departure because the crime of rape
was committed in January 1960, within the five-year period for which
good moral character must be established. /9/
The respondent has a citizen wife and two citizen minor children.
However, he has been separated from his wife for two years. The
separation was caused by respondent's drinking and gambling and his wife
did not know of his arrest for statutory rape. However, she indicates a
willingness to give him another change, even though the respondent has
contributed but little to her support. However, as has already been
pointed out, the respondent is not eligible for discretionary relief.
The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Petition of Bonsky, 77 F.Supp. 832 (S.D. Mich., 1948); In re
Graf, 277 F. 969 (D. Md., 1922).
(2) Matter of D W M , 9 I. & N. Dec. 633 involved an adopted child
and is not pertinent.
(3) Senate Report No. 1515, 81st Cong., 1st Sess., 708. Under
section 102(h) of the 1940 Act (8 U.S.C. 502(h), 1942 ed.) the term
"child' included a child legitimated under the law of the child's
residence or domicile whether in the United States or elsewhere; also a
child adopted in the United States, provided such legitimation or
adoption takes place before the child reaches the age of 16 years and
the child is in the legal custody of the legitimating or adopting parent
or parents.
(4) In re Howard's Petition, 147 F.Supp. 676 (W.D. Mo. W.D., 1956).
(5) Loos v. People, 268 P. 536.
(6) Citing Adams v. United States, 299 F.2d 327 (9th Cir., 1962);
Hernandez-Valensuelos v. Rosenberg, 304 F.2d 639 (9th Cir., 1962);
Zabanazad v. Rosenberg, 306 F.2d 861 (9th Cir., 1962).
(7) Matter of L R , 8 I. & N. Dec. 269; Matter of M D , 9 I. & N.
Dec. 172; Matter of R R , 7 I. & N. Dec. 478.
(8) Matter of Da Silva, Int. Dec. No. 1268.
(9) Section 101(f)(3) of the Immigration and Nationality Act (8 U.S.
C. 1101(f)(3)).
Service in the U.S. Navy for 1 year, 9 months, and 20 days does not satisfy the minimum period of 24 months in active-duty status required by section 244(b), Immigration and Nationality Act, as amended, notwithstanding the same period of service is considered by the Department of Navy to have satisfied the requirements of 2 years of service on active obligated duty for which inducted.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Entered without inspection.
The case is before us by certification. The special inquiry officer
found respondent deportable upon the charge stated above and denied his
application for suspension of deportation. The issue is whether the
respondent is eligible for suspension of deportation.
Section 244(a)(1) of the Immigration and Nationality Act under which
application is made for suspension of deportation has a requirement that
the applicant have been physically present for a continuous period of
seven years in the United States prior to becoming deportable; however
an exception to this requirement is made for one who "has served for a
minimum period of twenty-four months in active duty status of the Armed
Forces of the United States * * * (section 244(b) of the Immigration and
Nationality Act, 8 U.S.C. 1254(b) (Supp. IV)).' The issue is whether the
respondent who actually spent one year nine months and twenty days on
active duty with the Navy is within the exception.
Respondent a 32-year-old married male, a native and national of
China, came to the United States in 1951 to join his father who has been
a resident of the United States since 1913. Respondent gained admission
upon a false claim to United States citizenship. He made short visits
to Hong Hong in 1960 and 1962.
Respondent who was inducted into the United States Navy on November
17, 1955, for two years of active service was transferred to the
Reserves on September 6, 1957 after having served one year nine months
and twenty days. He was obligated to serve in the Reserves until
November 16, 1961 but failed to perform any Reserve obligation.
The official Armed Forces Report of Transfer received by respondent
from the Navy reveals that he was inducted for two years of service and
that he served one year nine months and twenty days. A letter dated
December 20, 1962, from the Department of the Navy, Bureau of Naval
Personnel, at Washington, D.C., reveals that under certain
circumstances, enlisted personnel may be separated three months or less
prior to the normal date of expiration of active obligated service,
provided such early separation is in the best interest of the government
and that such service is considered to have satisfied the requirement
that the person serve two years on active obligated duty. The
respondent is, therefore, considered by the Navy to have fulfilled his
obligation to serve on active duty for a period of twenty-four months
toward his Naval Reserve obligations (Ex. 5).
The special inquiry officer stated that despite the Navy's view of
the respondent's service, the fact was respondent had not served the
full twenty-four months required by the statute; he therefore did not
come within the exception created by the statute. Counsel believes that
the decision of the Department of the Navy that respondent has served
twenty-four months on active duty should be controlling as to the length
of the respondent's service. He points out that the immigration law
expressly provides in some instances that the decision of branches of
the Department of Defense are conclusive as to the existence of service.
He points out that the congressional history of the legislation reveals
that it was desired to benefit aliens who had served honorably for a
stated period of time in the Armed Forces of the United States. He
believes that in fixing the twenty-four month period of active duty,
Congress was referring to a minimum period of service, and he points out
that the respondent has satisfactorily completed his minimum period of
service. In the event that the decision is adverse to the respondent,
counsel requests that the decision be certified to the Attorney General
for a final administrative order.
We believe the special inquiry officer has ruled properly: The law
makes eligibility for relief dependent on proof that an alien has served
at least 24 months in an active duty status. Respondent has not served
this minimum period. The law makes no exception; it does not provide
that acceptance of a lesser period of service by the Department of
Defense shall constitute a waiver of the law's requirement. It is
clear, therefore, that respondent who has served less than twenty-four
months has failed to establish his eligibility for relief. While it may
well be that Congress did not envision the situation before us, and
would have made provision to grant relief if it had, the fact remains
that there is no authority to accept less than proof of at least
twenty-four months of active duty service.
There is no procedure for the certification of a case to the Attorney
General at the request of an attorney (8 CFR 3.1(h)). We do not believe
the case merits the attention of the Attorney General.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
(1) A naturalized citizen of the United States who by operation of law automatically reacquired Italian nationality in 1940 following 2 years' residence in Italy did not upon that basis lose his U.S. citizenship under section 401(a) of the Nationality Act of 1940 when he voted in a political election in Italy in 1946, loss under that section being limited to naturalization obtained "upon his own application,' but expatriated by performing an act separately designated as expatriatory in section 401(e) of that Act.
(2) A child of such naturalized citizen who acquired U.S.
citizenship at birth in Italy in 1930, under sec. 1993, R.S.; who
acquired Italian nationality in 1940 upon the automatic reacquisition of
such nationality by her father; and whose father, until he voted in
1946, performed no act that might possibly have been regarded as a
manifestation of acceptance of Italian nationality was not subject to
compliance with the provisos to section 401(a), Nationality Act of 1940,
or section 349(a)(1), Immigration and Nationality Act, at the time of
her first entry into the United States in 1957 when 27 years of age.
The applicant was born in Italy on April 15, 1930. He father was
then a citizen of the United States having been naturalized on November
19, 1928. The father resided in the United States after his
naturalization until 1929, from 1932 to 1935, from 1935 to November
1938, and from May 1958 to date. The applicant acquired United States
citizenship at birth under section 1993, U.S.R.S., by virtue of the fact
that her father was a United States citizen at the time of her birth and
had resided in the United States prior thereto. The applicant entered
the United States for the first time on July 27, 1957, in possession of
a United States passport, at which time she was twenty-seven years of
age.
At the time of applicant's birth in Italy her father had ceased to be
an Italian citizen, /1/ and thus the applicant did not acquire Italian
nationality at birth. Italian law as to nationality at birth is based
on the principle of "jus sanguinis' See Articles I and III of the
Italian Nationality Law of June 13, 1912, then in effect . Upon
completion of two years' residence in Italy in 1940, the applicant's
father automatically reacquired Italian nationality /2/ See Hackworth,
Digest of International Law (1942) p. 212 . Article XII of the Italian
Nationality Law conferred Italian citizenship upon applicant in 1940, as
she was then the minor child of a person reacquiring Italian citizenship
pursuant to the provisions of Article IX. /3/ Thus, the applicant
acquired dual nationality subsequent to her birth, in 1940, in
accordance with Italian law.
At the time applicant and her father acquired Italian nationality,
section 2 of the Act of March 2, 1907, 34 Sta. 1228; 8 U.S.C. 17
provided in pertinent part that any American citizen shall be deemed to
have expatriated himself when he has been naturalized in any foreign
state in conformity with its laws. The issue to be resolved in her
case, therefore, is whether their automatic acquisition of Italian
nationality imposed upon her the necessity of complying with the
provisions of section 401(a) of the Nationality Act of 1940 54 Stat.
1168; 8 U.S.C. 801 or section 349(a)(1) of the Immigration and
Nationality Act.
Section 401(a), which became effective January 13, 1941, provided as
follows:
A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by:
(a) Obtaining naturalization in a foreign state, either upon
his own application or through the naturalization of a parent
having legal custody of such person: Provided, however, That
nationality shall not be lost as the result of the naturalization
of a parent unless and until the child shall have attained the age
of twenty-three years without acquiring permanent residence in the
United States: Provided further, That a person who has acquired
foreign nationality through the naturalization of his parent or
parents, and who at the time is a citizen of the United States,
shall, if abroad and he has not heretofore expatriated himself as
an American citizen by his own voluntary act, be permitted within
two years from the effective date of this Act to return to the
United States and take up permanent residence therein, and it
shall be thereafter deemed that he has elected to be an American
citizen. Failure on the part of such person to so return and take
up permanent residence in the United States during such period
shall be deemed to be a determination on the part of such person
to discontinue his status as an American citizen, and such person
shall be forever estopped by such failure from thereafter claiming
such American citizenship (54 Stat. 1168-1169; 8 U.S.C. 801) * *
*.
This section was superseded on December 24, 1952, by section 349(a)(
1), quoted below, which insofar as it is relevant to the instant case
has been interpreted to make still timely the arrival in the United
States before 25 years of age of a child within the provisions of
section 401(a) who on that date had not yet attained 23 years of age (8
I. & N. Dec. 511):
(a) From and after the effective date of this Act a person who
is a national of the United States whether by birth or
naturalization, shall lose his nationality by --
(1) obtaining naturalization in a foreign state upon his own
application, upon an application filed in his behalf by a parent,
guardian, or duly authorized agent, or through the naturalization
of a parent having legal custody of such person: Provided, That
nationality shall not be lost by any person under this section as
the result of the naturalization of a parent or parents while such
person is under the age of twenty-one years, or as the result of a
naturalization obtained on behalf of a person under twenty-one
years of age by a parent, guardian, or duly authorized agent,
unless such person shall fail to enter the United States to
establish a permanent residence prior to his twenty-fifth
birthday: And provided further, That a person who shall have lost
nationality prior to January 1, 1948, through the naturalization
in a foreign state of a apply for a visa and for admission to the
United States as a non-quota immigrant under the provisions of
section 101(a)(27)(E) * * *
Absent any evidence of his intent to reacquire Italian nationality by
establishing residence in Italy, the resumption of Italian nationality
by the applicant's father under Article IX of the Italian law of June
13, 1912, may be deemed his "naturalization' within the meaning of
section 2 of the Act of March 2, 1907, only if he has voluntarily and
unambiguously manifested acceptance of Italian nationality by a
declaration or overt action. Upon such manifestation during the
effective period of that section, the final constituent element of
voluntary "naturalization' comes into being, and the legal consequences
are loss of nationality under section 2 (9 I. & N. Dec. 660; Int. Dec.
No. 1259). There is no evidence of such manifestation on the part of
the father prior to the repeal of section 2 on January 13, 1941, and,
therefore, no basis upon which to conclude that when section 401(a)
became effective on that date he was a person who had been expatriated
by naturalization in a foreign country within the meaning of the
legislation it superseded. Nor was the applicant herself old enough
prior to that date to have performed any action constituting and
election of Italian nationality on her part, assimilable to an act of
acceptance on the part of her father and capable independently of
effecting her loss of United States nationality (Cf. 1 I. & N. Dec. 476
and 496 and 3 I. & N. Dec. 761).
The second proviso to section 401(a) can scarcely have been aimed at
expatriating a child who during the effective period of the 1907 Act
automatically derived a foreign nationality as a result of the
conferring of such nationality upon his parent by operation of law when
the parent's acquisition of that nationality was not itself a
"naturalization' within the meaning of the 1907 Act. It has been a
long-standing rule, therefore, and one that is here reaffirmed that
under such circumstances the child is not under the necessity of
complying with that proviso (3 I. & N. 761, 765, supra).
With regard to the first provisos to section 401(a) and section 349(
a)(1), in the instant case the applicant's father voted in a political
election in Italy in 1946, an action that if performed prior to January
13, 1941, might be regarded as a manifestation of his acceptance of
Italian nationality sufficient to constitute under the precedents cited
the last element in his naturalization in a foreign country within the
meaning of section 2 of the Act of March 2, 1907. That section had then
been repealed and superseded by the Nationality Act of 1940.
The Nationality Act specifically provided in section 408 that the
loss of nationality thereunder shall result solely from the performance
by a national of the actions or fulfillment of the conditions set out in
that Act (54 Stat. 1171; 8 U.S.C. 808). And the language of section
401(a) rules out loss of nationality thereunder by the applicant's
parent on the basis of acquisition of a foreign nationality by operation
of law by specifically limiting such loss to a naturalization obtained
"upon his own application.' There is no evidence indicating that
applicant's parent at any time on or after January 13, 1941, obtained
Italian nationality upon his own application. Giving the evident
intended effect to section 408, it can only be found that, when he voted
in 1946, he performed an action separately designated as expatriatory in
section 401(e) of the Nationality Act and not that he was naturalized
within the meaning of section 401(a). In view of the foregoing, there
has been no "naturalization' within the meaning of that section and the
applicant is not a person required to comply with the first proviso to
section 401(a) or section 349(a)(1). No discussion is necessary,
therefore, with regard to the timeliness in relation to those provisos
of her entry into the United States when she was 27 years of age, and
favorable action on her application for a certificate of citizenship is
warranted.
ORDER: It is ordered that the application be granted and that a
certificate of citizenship be issued.
(1) When applicant's father became a naturalized citizen of the
United States he lost his Italian Nationality pursuant to the provisions
of Article VIII(1) of the Italian Nationality Law of June 13, 1912,
which provided that "One loses citizenship when he of his own free will
acquires a foreign citizenship and establishes or has established his
residence abroad.'
(2) Article IX of the Italian Nationality Law of June 13, 1912,
provided "He who has lost citizenship . . . may reacquire it . . . (3)
after two years of residence in the Kingdom if the loss of citizenship
has been due to the acquisition of foreign citizenship.'
(3) Article XII of the Italian Nationality Law of June 13, 1912,
provided that "minor nonemancipated children of those who acquire
citizenship become citizens.'
(1) Even though the vessel was touring the United States engaged in a promotional scheme for a motion picture rather than in a "normal commercial maritime operation,' fine lies under section 256, Immigration and Nationality Act, for paying off and discharging 5 alien crewmen without first having obtained the consent of the Attorney General.
(2) Section 256 provides for the imposition of a separate penalty for each crewman who is illegally paid off or discharged, as opposed to a single penalty per vessel regardless of the number of crewmen involved.
IN RE: HMS "BOUNTY' which arrived at the port of Boston, Mass., from foreign, via other United States ports, on August 25, 1962. Alien cewmen involved: Michael Lushington, Hugh Boyd, Ellsworth G. Coggins, Eric S. Hillis and Percy Coffin.
BASIS FOR FINE: Act of 1952 -- Section 256 (8 U.S.C. 1286).
The District Director at Boston, Mass., in a decision dated April 12,
1963, held that the Boston Shipping Corp., as agents for the HMS
"Bounty,' had incurred liability to administrative penalties totaling
$5,000, $1,000 as to each of the alien crewmen (Canadian nationals)
named above, for paying them off and/or discharging them without prior
permission from an immigration officer acting for the Attorney General.
However, said official found present herein factors which, in his
opinion, merited mitigation of the fines to the extent of $2500, $500
per crewman. He then permitted fines in like amount to stand. The
appeal from his decision, which brings the case before this Board for
consideration, will be dismissed.
The HMS "Bounty' is a wooden sailing vessel, a replica of the
original historic vessel of the same name, which was constructed for the
purpose of making a motion picture entitled "Mutiny on the Bounty.' Upon
completion of filming, it was decided to send the vessel on a
promotional tour. Said tour was to include port calls at several ports
on both coasts of the United States.
The first such call was made at Seattle, Wash., on June 22, 1962.
Immigration inspection was then and there accorded the vessel's crew,
with the result that the crewmen here involved were granted D-1
conditional landing privileges. Under the terms thereof, they were
permitted to land in this country for the time the vessel was to remain
in United States ports, but in no event to exceed 29 days; and they
could not be paid off and/or discharged without permission of the
Attorney General, acting through an immigration officer. /1/
The vessel sailed coastwise from Seattle and eventually arrived at
the port of Boston, Mass., on August 25, 1962. From that port, it was
scheduled to sail foreign for France, but these five crew members did
not desire to continue the voyage further. Accordingly, they were
"separated' from the ship, /2/ they were paid off and discharged before
the Canadian Consul at Boston, and they returned to their homes in
Canada.
The facts recited in the foregoing paragraph constitute this case a
classic example of a "pay off or discharge' as those terms are used in
the statute here under consideration. /3/ Therefore, the fines have
properly been ordered imposed unless appropriate permission had first
been obtained.
Appellant's claim that the requisite permission was obtained rests on
an affidavit submitted by the Master. It recites that when the vessel
arrived at the port of Boston, it received a tumultuous welcome and was
met by a large number of visitors and port officials. It states that
one such official, believed to be an immigration officer, was informed
of plans to permit these five crewmen to leave the ship. It concludes
that he informed the Master it was permissible to do so. This
affidavit, however, is unavailing -- for several reasons.
First, since the vessel merely sailed coastwise from Seattle to
Boston no further immigration inspection was required at the latter port
by the regulations. /4/ Second, according to the record no immigration
officer boarded the ship at Boston to make such an inspection, or
otherwise. Third, the regulations spell out a procedure for obtaining
permission to "pay off or discharge' crewmen entirely different from
that followed by the Master. /5/ Fourth, the Service record indicates
that the specified procedure was not followed, and no claim has been
advanced that it was. Fifth, the parties responsible for the vessel's
operation -- including the agents and Master -- are charged with
knowledge of the pertinent regulations. Finally, the record reveals
that the Master is an experienced mariner who presumably had personal
knowledge of them.
We cannot agree with appellant that it would be unconscionable to
permit the fines to stand because this vessel was engaged in an
enterprise of great public appeal rather than in a normal commercial
maritime operation. Factually, we find no logic in this argument since
the ship was touring the United States as a "promotional' scheme which
obviously involved the "profit motive.' Legally speaking, moreover, the
statute applies to "any vessel' so that it includes even privately owned
pleasure craft engaged in no commerce whatsoever. While there have been
cases in which the question of "normal commercial maritime operation'
was discussed, those cases involved the question of "sovereign
immunity,' to wit: public vessels operating solely for the public
purposes of a sovereign nation, /6/ which is not the situation presented
here.
We also reject the contention that this section of law limits the
fine that can be imposed hereunder to $1,000 per vessel no matter how
many crewmen are involved. The decisive factors on this point are that
the statute makes it unlawful to pay off or discharge "any alien
crewman' and provides for the imposition of a penalty "in the sum of
$1,000 for each such violation.' The clear meaning of the quoted
phraseology is that the Congress meant nothing more than that a separate
penalty should be assessed for each crewman who is paid off and
discharged, as opposed to creating a single violation of the statute per
vessel -- no matter how many crewmen were involved. /7/ While there are
no precedents precisely on this point, the fact remains that it has been
generally accepted and recognized, by a long line of administrative and
judicial interpretation, that this section does justify the imposition
of a fine of $1,000 as to each crewman involved. /8/ We so hold.
Finally, the request that the fines be further reduced must be and is
denied. The reason is that the penalty provided for in the statute
cannot be reduced to less than $500 per crewman, and the District
Director has already granted this relief.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) See arirval manifest (Form I-418); Section 252(a)(1),
Immigration and Nationality Act (8 U.S.C. 1282); and 8 CFR 252.1(d)(
1).
(2) See manifest (Form I-418) submitted for the vessel's foreign
departure on August 31, 1962.
(3) U.S. v. Seaboard Surety Co., 239 F.2d 667.
(4) 8 CFR 251.1 and 252.1.
(5) 8 CFR 251.1(d) and (f).
(6) See Matter of SS "Wave Sovereign,' 5 I. & N. Dec. 336.
(7) See Grant Brothers Construction Co. v. U.S., 58 L.ed. 776; and
see also the Kathlambra, 18 F.2d 113.
(8) See the Limon, 14 F.2d 153, and 22 F.2d 270.
An exchange visitor alien who has been granted a waiver of the foreign-residence requirement provided by section 212(e), Immigration and Nationality Act, as amended, is not precluded by section 244(f)(2) from establishing statutory eligibility for suspension of deporation under section 244(a)(1).
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer -- admission as a nonimmigrant student and change of
status to exchange visitor.
The case comes forward pursuant to certification by the special
inquiry officer of his decision dated August 2, 1963 ordering that the
deportation of the respondent be suspended under the provisions of
section 244(a)(1) of the Immigration and Nationality Act, as amended.
Discussion as to Deportability: The respondent is a native and
citizen of China, 32 years old, male, who last entered the United States
on September 19, 1954, at which time he was admitted as a nonimmigrant
student. His status was changed on May 8, 1959 to that of an exchange
visitor and he was subsequently granted until July 16, 1963 to effect
his voluntary departure from the United States. On December 28, 1962
the grant of voluntary departure was rescinded and the respondent
acknowledged that he has remained in the United States thereafter
without authority. Deportability is conceded and is found to be
established as charged in the order to show cause.
Discussion as to Eligibility for Suspension of Deportation: The
respondent was married on April 7, 1957. His wife had entered the
United States on November 3, 1956 as an exchange visitor and is the
beneficiary of a waiver of the two-year foreign residence requirement.
They have two children, approximately four and two years of age, both
native born citizens of the United States. The respondent's wife is a
pediatrician but is presently active only as a housewife. She and the
children are dependent entirely upon the respondent for support. The
respondent is an assistant professor of psychology at Columbia
University College of Physicians and Surgeons, engaged in problems of
wound shock under contract with the Office of the Army Surgeon General,
and earns approximately $12,000 per year. His assets consist of $500 in
savings and personal effect-valued at $2500.
Letters from professional associates and friends, reprints of
respondent's articles in various scientific publications and other
documentary evidence have been submitted. This evidence establishes
that the respondent has been continuously physically present in the
United States since the time of entry, a period of at least the
preceding seven years.
A check of the local appropriate local and federal records have
failed to reveal an arrest or criminal record against the respondent.
Inquiry disclosed that he has no connection with subversive groups.
Affidavits of witnesses and an independent character investigation
establish that he has been a person of good moral character for more
than the preceding seven years. The respondent meets the good moral
character requirement for suspension of deportation as well as the other
requirement of a continuous period of residence of not less than seven
years immediately preceding the date of his application, and the
requirement that his deportation would result in extreme hardship to
himself as well as his spouse and children, the latter of whom are
citizens of the United States.
The respondent is the beneficiary of a visa petition filed in his
behalf by Columbia University on June 11, 1962 approved by the Service
on July 18, 1962 granting him preference status under section 203(a)(1)
of the Immigration and Nationality Act. At the request of the
Department of Defense, based upon his research in the field of
hemorrhagic shock and radiation syndrome for the Office of the Army
Surgeon General, he has been granted a waiver of the foreign residence
requirement for exchange visitors under section 212(e) of the
Immigration and Nationality Act. However, since the first preference
portion of the quota for Chinese persons is oversubscribed presently,
the respondent cannot readily obtain an immigrant visa to otherwise
adjust his immigration status.
The respondent's case is an extremely meritorious one and he
qualifies for suspension of deportation in every respect except for the
apparent bar interposed by section 244(f) of the Immigration and
Nationality Act as amended by the Act of October 24, 1962 (76 Stat.
1247, P.L. 87-885) which provides:
(f) No provision of this section shall be applicable to an
alien who * * * (2) was admitted to the United States pursuant to
section 101(a)(15)(J) or has acquired such status after admission
to the United States; * * *
The respondent acquired the status of an exchange visitor on May 8,
1959. However, he has been granted a waiver of the two-year foreign
residence required for a change of status under section 212(e) of the
Immigration and Nationality Act. There remains to be considered whether
an alien who has an exchange visitor status but who has been granted a
waiver of the foreign residence requirement comes within the bar of
section 244(f) of the Immigration and Nationality Act, as amended.
The primary purpose of the Information and Educational Exchange Act
of 1948 was to promote international good will by mutual exchange of
persons to observe and study on the one hand and to teach important
knowledge on the other. In establishing this program Congress
anticipated that the alien would employ the knowledge and skill, thus
acquired as the result of a stay here, in his own country. He was
declared ineligible for the privilege of suspension of deportation. The
ban against granting suspension of deportation to exchange visitors was
incorporated into section 402(f) of the Immigration and Nationality Act.
The Information and Educational Exchange Act of 1948 was amended on
June 4, 1956 (Public Law 84-555) to provide that no person acquiring
exchange status thereafter would be eligible for an immigrant visa or
for adjustment of status to that of an alien lawfully admitted for
permanent residence unless he had been physically present in a
cooperating country for a period of two years following departure from
the United States, except that such two-year requirement might be waived
by the Attorney General in the case of an alien whose admission to the
United States was found by the Attorney General to be in the public
interest.
Section 201 of the Information and Educational Exchange Act was
repealed by the Mutual Exchange and Cultural Exchange Act of 1961
(Public Law 87-256) and the two-year foreign residence requirement and
waiver provisions in somewhat revised form were incorporated into
section 212(e) of the Immigration and Nationality Act and section 101(
a)(15)(J) was added to include exchange visitors as a specific category
of nonimmigrants. Although section 244(f) of the Immigration and
Nationality Act as amended on October 24, 1962 at first glance would
also appear to bar voluntary departure to the classes of aliens
enumerated therein, such a construction was rejected in favor of an
interpretation allowing such relief in the cases of crewmen. /1/
In commenting on the proposed amendment of section 244 by the Act of
October 24, 1962 the Congressional discussion as stated by Congressman
Feighan stated as follows: "Suspension of deportation will not be
available to alien crewmen and to persons who come to the United States
under the International Educational Exchange Program and are under
obligation to return to their native country for at least two years to
give their country the benefit of their American education and
experience.' /2/ (Emphasis supplied.) From this statement it may be
fairly inferred that section 244(f)(2) was not intended to bar
suspension of deportation to an exchange visitor with respect to whom
the two-year foreign residence requirement had been waived. Any other
interpretation would result in a strange paradox. Section 212(e) as
amended permits the issuance of a visa, as well as the granting of
permanent residence to an exchange visitor with the required waiver.
Suspension of deportation under the Immigration and Nationality Act is
merely one method of adjustment of the status of an alien to that of a
permanent resident in addition to sections 245 of 249 of the Immigration
and Nationality Act. There is no apparent reason for denying adjustment
of status to an applicant for suspension of deportation who has the
required waiver while granting it to an applicant under section 245 or
section 249 of the Act. Where the waiver has been granted in the public
interest, it would appear that Congress, in the same public interest,
would authorize an alien to become a permanent resident through
suspension of deportation if he could not adjust his status in some
other manner.
Suspension of deportation is a remedial provision and any ambiguity
in the restriction of the grant of such relief should be resolved in
favor of the alien. The respondent has been granted a waiver of the
two-year foreign residence period required of one who acquired the
status of an exchange visitor. Inasmuch as he is no longer required to
return to his native country for two years, having been granted the
necessary waiver, he would appear to be eligible for suspension of
deportation and the bar of section 244(f)(2) would not apply in such a
case. The order of the special inquiry officer granting the respondent
the privilege of suspension of deportation under section 244(a)(1) of
the Immigration and Nationality Act will be approved.
ORDER: It is ordered that the order of the special inquiry officer
dated August 2, 1963 granting the alien the privilege of suspension of
deportation be and the same is hereby approved.
(1) Matter of Varga Rodriguez, Int. Dec. 1254.
(2) 20 Congressional Record 22153 (daily edition, October 1, 1962).
An alien agricultural worker who remains in the United States beyond the period for which he was admitted under the provisions of Title V, Agricultural Act of 1949, as amended, is deportable under section 241( a)(2), Immigration and Nationality Act. Note: The alien in this case is also the subject of Int. Dec. No. 1288.
CHARGES:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) -- Failed to comply with conditions of status of agricultural worker under which admitted to the United States.
Lodged: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer after temporary admission as an agricultural laborer.
To simplify the discussion and for administrative convenience, this
case, one of three the special inquiry officer heard and decided
jointly, will be separately considered. (The other cases are Rogelio
Avila-Valdez -- A-13568544 and Jose Salud Guiterrez-Serrato
--A-13569146.) The case is before us by certification. The special
inquiry officer has found the respondent deportable upon the lodged
charge and has granted him voluntary departure. No change will be made
in the special inquiry officer's order.
A full statement of the facts has been made previously. Briefly, the
Service charges that respondent, a 26-year-old single male alien, a
native and citizen of Mexico, was admitted to the United States as an
agricultural worker on May 3, 1962 for a period ending June 14, 1962,
that recontracts, and a provision of the agreement between the Republic
of Mexico and the United States authorized him to remain until January
4, 1963, and that he has remained beyond January 4, 1963 without
permission.
The case was before us previously on appeal from the special inquiry
officer's order sustaining the charge in the order to show cause. We
reopened proceedings because of the conflict found in the fact that
although the order to show cause arraigned the respondent as a
nonimmigrant, the evidence of record revealed that in a collateral
proceeding the Service had ruled that respondent was not a nonimmigrant.
At the reopened hearing, the Service abandoned the charge in the order
to show cause and lodged a new charge which does not allege that the
respondent is a nonimmigrant. The new charge alleges that respondent
entered as an agricultural laborer. The special inquiry officer
sustained the lodged charge finding that the respondent had entered the
United States as an agricultural laborer, and that he had remained in
the United States longer than permitted by the law and regulation
relating to admission of agricultural workers. /1/
Counsel's first contention is that the respondent is not in an
illegal status. His argument is that respondent having been admitted as
a nonimmigrant, and having applied to the District Director for a change
of status to which as a nonimmigrant he was legally entitled, and his
application having been denied on the erroneous ground that he was not a
nonimmigrant, must be regarded as legally in the United States. The
obvious answer to counsel's contention is that since the denial of the
application for a change of status is not subject to further
administrative review and it has not been judicially set aside,
respondent can derive no legal benefit from the fact that he filed the
application.
The question whether respondent is a nonimmigrant is no longer an
issue. The Service withdrew the charge which applies to a nonimmigrant
and substituted the charge that respondent is deportable as an
agricultural laborer who remained longer than permitted. The issues
arising out of the lodged charge are whether respondent is an
agricultural worker, whether he has remained longer than permitted, and
whether an agricultural worker who remains longer than permitted is
deportable.
An issue is raised as to whether respondent entered as an
agricultural worker. At the original hearing, counsel conceded that
respondent had been admitted as an agricultural worker to December 20,
1962; at the reopened hearing counsel denied the additional allegation
which accompanied the lodged charge and which stated that respondent had
been admitted as an agricultural laborer under the Agricultural Act to
January 4, 1963. Is the respondent an agricultural worker? For
immigration purposes, an agricultural worker is a Mexican national
recruited under the provisions of the Agricultural Act of 1949, as
amended ((Agricultural Act), 63 Stat. 1051, as amended, 7 U.S.C.
1461-1468 (1958), as amended, 7 U.S.C. 1461-1468 (Supp. IV); Ex. R-4,
pp. III-IV), pursuant to arrangements between the United States and the
Republic of Mexico to perform services or activities defined by law and
who is admitted for such time and under such conditions as the Attorney
General may specify (Agricultural Act, secs. 501, 505, 508, 7 U.S.C.
1461, 1464, 1467). The arrangements between the United States and the
Republic of Mexico set forth the specific obligations of the employer
and employee, and contain provisions to assure the worker wholesome
working and living conditions and the retention of the fruits of his
labor. These arrangements are embodied in the Migrant Labor Agreement
of 1951, as amended (Agreement) (Ex. R-4, pp. 1-22), the Standard Work
Contract, as amended (Contract) (Ex. R-4, pp. 23-34), and Joint
Operating Instructions (Ex. R-4, pp. 35-51).
We have mentioned that the Agricultural Act provides that admission
of the Agricultural worker is to be for such time and under such
conditions as the Attorney General may specify. The Attorney General
has issued no immigration regulation in regard to time limits, but sets
the time within the following framework: workers are not to be made
available for employment after December 31, 1963 (Agricultural Act, sec.
510, 7 U.S.C. 1461, note (Supp. IV)), no contract of less than six weeks
may be entered into, extensions may be given for a minimum period of 15
days, stay for more than six months is not permitted except that under
certain circumstances stay for up to nine months may be arranged (Ex.
R-4, Agreement, pp. 10, 16; Contract, pp. 29, 31). The Attorney
General has issued an immigration regulation setting the conditions of
admission. The regulation states that admission is to be upon agreement
of the agricultural worker to abide by three conditions; broadly
speaking these conditions are: (1) the alien will engage only in
specified employment, (2) the alien will depart upon the expiration of
the period for which he is admitted, (3) he will carry the Form I-100C
(which is to be issued to him upon admittance) while he is in the United
States and will surrender it when he departs (8 CFR 214.2(k) (Supp.
1963); see Immigration and Nationality Act, sec. 103(a), 8 U.S. C.
1103 (1958)).
The record establishes respondent was admitted as an agricultural
worker. Respondent was issued Form I-100C (Ex. 4) which is issued to
agricultural workers; the form shows he was admitted "for employment as
agricultural worker under Public Law 78 * * *' Agricultural Act .
Respondent denies that he has remained longer than the period for
which he was admitted. The record does not support this denial.
Exhibit 4 reveals that respondent was admitted to June 14, 1962, that
this period was extended on five occasions, and that the last extension
was to December 20, 1962. The Service apparently concedes that the
respondent comes within article 9 of the Contract permitting a worker to
be employed after the expiration of his contract for a period of not
more than 15 additional days without being recontracted. Thus, the
respondent's legal stay in the United States would not have extended
beyond January 4, 1963. There is no evidence presented that an
extension of time was granted beyond January 4, 1963. The claim that
respondent has a right to remain in a legal status because he had filed
an application (which was denied) for a change of status, or because he
may have a visa application pending, or because the Board ordered
reopening of proceedings is patently without foundation.
It is clear then that the period for which respondent was admitted
expired on January 4, 1963. Having remained in the United States beyond
the period for which he was authorized to stay, respondent is in the
United States in violation of 8 CFR 214(k) (Supp. 1963) which provides
that his admission was on condition that he would depart upon the
expiration of the period for which he was admitted. Respondent's
presence after January 4, 1963 is also in violation of the Agricultural
Act for he is no longer maintaining the conditions set by the Attorney
General, which the Agricultural Act requires him to maintain.
Respondent is illegally in the United States.
We find that provisions of the Immigration and Nationality Act may be
used for the expulsion of a Mexican worker illegally in the United
States. The immigration law provides that an alien in the United States
in violation of any law of the United States shall be deported
(Immigration and Nationality Act, sec. 241(a)(2), 8 U.S.C. 1251(a)(2)
(1958)). The procedure for the deportation of an alien in the United
States in violation of law is set forth in section 242 of the
Immigration and Nationality Act, 8 U.S.C. 1252 (8 CFR 242.8-242.21).
This procedure is the "sole and exclusive procedure for determining the
deportability of an alien.' We think it is clear that respondent, a
Mexican worker, in remaining in the United States in violation of the
Agricultural Act and the regulation implementing it, is illegally in the
United States. We think it is clear that his removal is required by
section 241(a)(2) of the Act.
We shall proceed to discussion of issues raised by counsel as to
whether respondent was properly notified of the charge against him, and
whether a preliminary inquiry should not have been made under the terms
of the Agreement between the United States and the Republic of Mexico
before the machinery of the Immigration and Nationality Act could be
utilized to deport respondent.
Provisions of the Immigration and Nationality Act and regulations
concerning the notification of charges require that the alien be given
notice of the nature of the charges against him (Immigration and
Nationality Act, sec. 242(b), 8 U.S.C. 1252(b) (1958); 8 CFR 242.1
(1958); 8 CFR 242.16(d) (Supp. 1963)). The lodged charge is based upon
section 241(a)(2) of the Act which is pertinent part provides for the
deportation of an alien who "is in the United States in violation of
this chapter Chapter 12 of Title 8 -- Immigration and Nationality Act or
in violation of any other law of the United States.' Notice of the
lodged charge informed respondent that he was deportable under section
241(a)(2) of the Immigration and Nationality Act, "in that, after
temporary admission as an agricultural laborer under Title 5 of the
Agricultural Act of 1949, as amended, you have remained in the United
States for a longer time than permitted' (Ex. R-1). Two factual
allegations in addition to those previously set forth in the order to
show cause stated that respondent had been "admitted as an agricultural
laborer pursuant to Title 5, Agricultural Act of 1949, as amended, and
permitted to remain in the United States until January 4, 1963' (the
original allegation had not designated the authority under which
respondent had been admitted and had shown the authorized stay as ending
on December 20, 1962); and that he had "remained in the United States
beyond January 4, 1963, without permission' (the original allegation had
merely stated that respondent had failed to depart) (Exs. 1, R-1).
At the hearing, counsel asked to be informed whether the Service in
using section 241(a)(2) of the Act was charging a violation of the
Immigration and Nationality Act or another law such as the Agreement.
The trial attorney stated that the lodged charge and allegations
accompanying it, put respondent upon sufficient notice; the trial
attorney refused to furnish any further information (pp. 20-22). While
it was error for the trial attorney to fail to answer counsel's inquiry
by pointing out that it was a violation of the Agricultural Act which
was relied upon, we do not believe that counsel was misled or hampered
in his defense. His brief reveals his understanding that the respondent
was "charged by the Service with a violation of the Agricultural Act of
1949, as amended' (p. 11, brief October 10, 1963); and we note that
counsel advanced a defense at the hearing based upon the Agricultural
Act (p. 23). We conclude respondent had proper notice of the charge
against him. /2/
As a further defense counsel contends that although the Service
charged respondent with being deportable for violation of the
Agricultural Act, the special inquiry officer did not find respondent so
deportable, but instead found him deportable as a nonimmigrant under the
Immigration and Nationality Act. Counsel's conclusion that the special
inquiry officer found respondent had been admitted as a nonimmigrant is
deduced from the fact that the special inquiry officer stated that
respondent had been admitted subject to the immigration laws. The
contention is not valid. The special inquiry officer's order reveals
that it was a violation of the Agricultural Act and the regulations
implementing it which was the basis for deportation (pp. 5-6, special
inquiry officer's order of July 17, 1963). We find, therefore, that the
respondent was properly found deportable on the lodged charge. /3/
The defense under the Agricultural Act is based on counsel's belief
that a worker cannot be found to be in the United States in violation of
the Agricultural Act unless he is first given the hearing provided by
article 30 of the Agreement (Ex. R-4, p. 17). In brief, this article
provides that no employer or worker shall be found to have violated the
Agreement without investigation by the Secretary of Labor of a complaint
filed by the employer or worker, and that charges are to be supplied to
the alleged violator who has the right to a hearing. The validity of the
complaint is to be judged by the Secretary of Labor and the Mexican
consul. If they are unable to reach a satisfactory solution, appeal is
provided to the Secretary of Labor and a representative of the Mexican
Government in Washington, D.C. Counsel believes that failure to follow
this procedure before a deportation hearing is started is a violation of
section 405 of the Immigration and Nationality Act which states that the
Immigration and Nationality Act "shall not be construed to repeal,
alter, or amend Title V of the Agricultural Act of 1949, as amended'.
Counsel believes that the holding of a deportation hearing without first
finding a violation of the Agricultural Act under the terms of article
30, amounts to a repeal of article 30.
We do not believe that article 30 applies to a deportation matter.
It appears clear from a reading of the article that it provides a
procedure to determine rights between an employer and employee, that it
concerns problems which would arise between the employer and employee,
that it involves the Department of Labor and the Mexican consul, but
that it does not apply where parties are the Mexican worker and the
Immigration and Naturalization Service and the issue is whether there
has been an immigration violation. There is nothing inconsistent
between article 30 of the Agreement which implements a law having no
reference to the deportation of an alien (other than to make him subject
to the immigration laws) and the provisions of the Immigration and
Nationality Act relating to the deportation of an alien. Therefore,
application of the deportation provisions of the Immigration and
Nationality Act does not constitute a repeal, alteration or amendment of
the Agricultural Act.
The position of the Board concerning section 248 of the Act (8 U.S.
C. 1258 (Supp. IV)) has been set forth in our previous order; further
discussion can be of no benefit.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
(1) The terms "agricultural laborer' and "agricultural worker' are
used interchangeably by the Service and the special inquiry officer.
(2) Since appeals by 13 other respondents, represented by the same
counsel defended by the same brief, and involving the same issues are
pending before us, and since this order is planned to serve as a
precedent for the disposition of the other appeals, we shall, to prevent
unnecessary discussion of the issue before us, now list information on
this point relating to the other appeals.
At the separate hearings on four cases held on July 11, 1963 before
Special Inquiry Officer Leone, counsel stated in three cases that he had
"anticipated' the lodged charge and was ready to defend it
(Becerra-Vasquez -- A-13023737, p. 26; Jacobo Villalobos -- A-13564268,
p. 16; Martinez-Torres -- A-13565183, p. 16), in the fourth case,
counsel raised no issue as to the nature of the charge, but stated he
was ready to proceed, and he did make his defense under the Agricultural
Act (Sanchez-Bonilla -- A-13564262, pp. 13-14).
At the joint hearing on four cases held before Special Inquiry
Officer Myron on the morning of July 17, 1963, counsel merely asked the
trial attorney whether the Service relied upon only the lodged charge
and was told that such was the case (p. 36, Moran-Martinez --
A-13563192; Ochoa-Molina -- A-13560991; Ortiz-Calderon -- A-13563190;
Sandoval-Baron -- A-13565131).
(The joint hearing of respondent and the two other aliens was held
before Special Inquiry Officer Myron, the afternoon of July 17, 1963.)
At the separate hearings on the three cases held on July 23, 1963
before Special Inquiry Officer Mattel, counsel was either informed by
the trial attorney that violation of the Agricultural Act was involved
(Castro-Lares, A-13573053, p. R-4; Diaz-Velasquez, A-13568598, p. R-7)
or indicated his awareness that the Agricultural Act was involved
(Gonzalez-Jaime, a-13567806, R-8-9).
(3) Special inquiry Officer Leone who, on July 11, 1963, heard the
first group of cases and before whom no issue was raised as to what law
was involved, relied upon the violation of the immigration regulation
based on the Agricultural Act. Special Inquiry Officer Myron disposing
of the cases heard the morning of July 17, 1963 specifically found a
violation of the Agricultural Act and the regulations implementing it
(pp. 4-5). Special Inquiry Officer Mattell, found a violation of the
Agricultural Act (p. 6).
A lawful permanent resident, upon return to the United States in July 1956 following a 4-hour absence to Mexico on a sight-seeing trip did not make an entry Rosenberg v. Fleuti, 371 U.S. 449 upon which to predicate a ground of deportation arising out of a conviction of a crime involving moral turpitude commited within 5 years after entry. See Matter of Cardenas-Pineda, Int. Dec. No. 1295.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of crime committed within 5 years of entry, to wit, murder in
the first degree.
An order entered by the special inquiry officer on July 23, 1963
directs the respondent's deportation to the Republic of Korea on the
charge that he has been convicted of a crime involving moral turpitude
committed within five years after entry and sentenced to confinement
therefor for a year or more, to wit, first degree murder (8 U.S.C.
1251(a)(4)). The case has been certified for final decision by the
Board of Immigration Appeals.
The record relates to a native and citizen of the Republic of Korea,
male, unmarried, 23 years of age, who was admitted to the United States
for permanent residence through the port of Seattle, Washington on July
7, 1956. The evidence establishes and the respondent admits that he was
convicted in the Circuit Court for the Eleventh Judicial Circuit, Dade
County, Miami, Florida, of first degree murder and sentenced to life
imprisonment on April 18, 1963. The respondent also admits that in July
of 1959 he went on a sight-seeing trip to Mexico for approximately four
hours accompanied by his father and another person.
The case has been certified for an interpretation of the term "entry'
in light of the Supreme Court decision in the case of Rosenberg v.
Fleuti, 374 U.S. 449, 10 L.ed.2d 1000, June 17, 1963. The Supreme Court
in the Fleuti case had before it the question of whether a resident
alien who returned to the United States in 1956 after a brief visit to
Mexico and at that time was excludable under section 212(a) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)) would be subject to
deportation by reason of an "entry' within the meaning of section
101(a)(13) of the Act (8 U.S.C. 1101(a)(13)). /1/ The Court construed
the "intent' exception to the definition of the term "entry' as meaning
an intent to depart in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence. The following factors
were stated by the Court as indicative of such an intent: (1) the
length of time the alien was absent from the United States; (2) the
purpose of the alien's visit abroad is not contrary to some policy
reflected in our immigration laws; and (3) was it necessary for the
alien to procure travel documents in order to make the trip.
The evidence with regard to the nature of respondent's short visit to
Mexico was fully developed by the trial attorney. The respondent
testified ". . . we entered Mexico just visiting a different country,
sightseeing, sir.' When questioned as to whether he knew that he was
leaving the United States and entering Mexico, the respondent replied ".
. . the only answer I can give you . . . in entering a different
country. No, I didn't have the intention in my mind at that time.' (pp.
13 & 14) The respondent subsequently testified that he knew that he was
entering a foreign country when he visited in Mexico (p. 16); that he
had an "identification card' which said "I was allowed either in Mexico
or Canada, possibly three months with this card' (p. 12); and that he
went through inspection when he entered and departed from Mexico (p.
15).
The special inquiry officer, referring to the factors enumerated by
the Supreme Court as indicative of an "intent' to depart in a meaningful
manner, cancedes that the length of the respondent's absence in Mexico
was short (four hours); that the purpose of the respondent's visit to
Mexico was legitimate, namely, not contrary to some policy reflected in
our immigration laws and that it was an innocent, casual and brief
excursion from the United States. The special inquiry officer
concludes, however, that the respondent's departure was meaningfully
disruptive of his resident alien status because the respondent "knew he
was required to have some form of travel document or identification in
order to come back to the United States /2/ . . . and he (respondent)
knew that he had to be inspected by immigration officers on his return
to this country.' (pp. 4 & 5, special inquiry officer opinion). The
special inquiry officer distinguishes Fleuti on the basis of this
reasoning and finds that the respondent did effect an "entry' within the
meaning of section 101(a)(13) of the Act when he last entered the United
States at Nogales, Arizona in July of 1959.
Contrary to the special inquiry officer, we are unable to distinguish
respondent's case from the Supreme Court holding in Rosenberg v. Fleuti
(supra). Knowledge of the fact that a travel document is required for
presentation to an inspecting immigration officer upon return to the
United States is not the sine qua non of the Supreme Court's reference
to travel document requirements as indicative of an "intent to depart in
a manner which can be regarded as meaningfully interruptive of the
alien's permanent residence.' When the Supreme Court in stating the
several factors relevant to a meaningful departure said "whether the
alien has to procure any travel documents in order to make this trip'
they meant that the procurement of the document is the key to an
"intent' to depart "meaningfully' because as the Supreme Court expressed
it "the need to obtain such items might well cause the alien to consider
more fully the implications involved in his leaving the country.'
(Emphasis supplied.) Furthermore, under the regulations then prevailing
/3/ Fleuti was required to present his alien registration receipt card
(Form I-151) to effect a reentry when he returned from Mexico in August
of 1956 and we presume he had one in his possession for this purpose.
As in the case of this respondent Fleuti did not have "to procure any
travel documents in order to make his trip' to Mexico (10 L.ed.2d at p.
1009).
This respondent has had an alien registration card since his initial
entry for permanent residence in 1956. He did not have to make a formal
application for a travel document authorizing his reentry following a
border crossing into Mexico because under 8 CFR 211.1 (supra /2/ ) his
alien registration card was sufficient for this purpose. According to
his testimony the document he presented upon his return to the United
States (alien registration card) said on its face that the holder
thereof "was allowed either in Mexico or Canada, possibly three months .
. .' (p. 12) It cannot be said under these circumstances that the
respondent's casual and brief excursion beyond our borders was
"intended' as a departure disruptive of his resident alien status.
Accordingly, the respondent did not make an "entry' within the meaning
of section 101(a)(13) of the Immigration and Nationality Act (supra /1/
) when he returned to the United States following a visit in Mexico of
four hours' duration in July of 1959. The charge laid under section
241(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(4))
cannot be sustained because the respondent has not been convicted of a
crime involving moral turpitude committed within five years of his only
"entry' into the United States, namely, his entry for permanent
residence on July 7, 1956. An appropriate order will be entered.
ORDER: The order entered by the special inquiry officer on July 23,
1963 directing the alien's deportation to the Republic of Korea on the
charge stated in the order to show cause dated April 25, 1963 is hereby
withdrawn.
It is further ordered that the proceeding under the said order to
show cause be and the same is hereby terminated.
(1) That portion of section 101(a)(13), Immigration and Nationality
Act (8 U.S.C. 1101(a)(13)) pertinent to this decision reads as follows:
"The term "entry' means any coming of an alien into the United States,
from a foreign port or place or from an outlying possession, whether
voluntarily or otherwise, except that an alien having a lawful permanent
residence in the United States shall not be regarded as making an entry
into the United States for the purposes of the immigration laws if the
alien proves to the satisfaction of the Attorney General that his
departure to a foreign port or place or to an outlying possession was
not intended or reasonably to be expected by him or his presence in a
foreign port or place or in an outlying possession was not voluntary: .
. .' (Emphasis supplied.)
(2) 8 CFR 211.1 reads in part as follows: A valid unexpired
immigrant visa shall be presented by each arriving immigrant alien
except an immigrant who . . .(b) is returning to an unrelinquished
lawful permanent residence after a temporary absence abroad (exceptions
not pertinent here) not exceeding one year and presents a Form I-151
Alien Registration Receipt Card duly issued to him . . .
(3) 8 CFR 211.11 as revised May 15, 1956.
(1) Neither the Board of Immigration Appeals nor the special inquiry officer has authority to adjudicate an application for a waiver of the foreign residence requirement of section 212(e), Immigration and Nationality Act, as amended (Reaffirms Matter of Rosenblatt, Int. Dec. No. 1260.)
(2) Jurisdiction to fix voluntary departure date lies with the district director. If an alien fails to effect voluntary departure within the time accorded him, the district director is vested with the power to deport him expeditiously notwithstanding that an application for relief may be pending, if the district director, after consideration of the bona fides of the application, the length of time adjudication will take, the ability of the alien to depart and return, the probability of the success of the application, and other pertinent factors, decides that the policy of the law will be defeated unless the alien promptly departs.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer -- exchange visitor.
This is an appeal from the order of the special inquiry officer
requiring respondent's deportation upon the ground stated above, denying
his application for adjustment of status to that of a permanent
resident, and granting voluntary departure. Appeal will be dismissed.
Respondent, a 43-year-old married male, an alien, a native and
citizen of Japan entered the United States on June 24, 1958 as an
exchange visitor for a period ending June 30, 1963. He has remained
without authorization. Deportability is conceded. The respondent's
application for adjustment of status to that of a permanent resident
under section 245 of the Act was denied on the ground that he had not
established that an immigrant visa is immediately available to him. A
visa is not available because, respondent having been admitted as an
exchange visitor is not eligible for the issuance of an immigrant visa
until he has been absent from the United States for two years.
The respondent as to absence may be waived; in fact, respondent
filed an application for such a waiver with the District Director prior
to the deportation proceeding, but the application had not been ruled
upon to the time oral argument was heard before the Board. At the
deportation hearing, counsel asked the special inquiry officer to rule
upon the application for the waiver; the special inquiry officer held
that he had no jurisdiction to do this. This is the first issue we
shall discuss.
Counsel contends that the special inquiry officer, having the power
to grant the greater relief (adjustment of status to permanent
residence) must also have the power to grant the lesser relief (waiver
of the requirement that there be an absence of two years) and therefore
should have acted upon the application for the waiver. Counsel is aware
of the fact that in Matter of Rosenblatt, Int. Dec. No. 1260, and other
decisions, the Board held that a special inquiry officer has no
authority to pass upon an application for a waiver of the absence
requirement: however, counsel believes the precedents are
distinguishable because either dicta is involved or the cases would have
required review of a prior determination made by the District Director
on the application for a waiver. In the instant case, counsel points
out that no decision by the District Director had been made upon the
application for the waiver at the time the deportation hearing was held.
We do not find the contention persuasive. In Matter of Rosenblatt,
supra, the alien in deportation proceedings, requested that the special
inquiry officer rule upon an application for a waiver under section
212(e) of the Act. The alien contended, as in the instant case, that
the special inquiry officer could draw authority to make such a ruling
from his power to examine an alien's eligibility for adjustment of
status. An application for the waiver had been denied by the District
Director prior to the deportation proceeding. The Board held that
neither the special inquiry officer nor the Board had jurisdiction to
consider the application or to review a decision made by the District
Director upon such an application. The Board's decision was bottomed,
not upon the fact that an application for the waiver had been previously
denied by the District Director, but upon the fact that an examination
of the law and regulations revealed there was no authority for the
special inquiry officer or the Board to take jurisdiction in the matter,
such authority having been specifically delegated elsewhere. We see no
reason to change the decision we made in Matter of Rosenblatt, supra.
Counsel's first contention must be rejected.
The second issue raised by counsel arises from the fact that the
special inquiry officer having granted respondent voluntary departure,
refused, on the ground that he lacked jurisdiction, to comply with
counsel's request that he couple the grant of voluntary departure with a
provision that the respondent must be permitted to stay in the United
States until there had been a ruling upon his application for an
adjustment of status. This contention is more troublesome for it points
out that despite the fact that a special inquiry officer may have given
a respondent in deportation proceedings voluntary departure, the
District Director may nevertheless order the respondent deported before
a decision is made on the merits of a pending application. Counsel
suggests that justice can be done only if a limitation is placed upon
the District Director's power to deport an alien until the alien's
pending application for adjustment of status is decided. Counsel
suggests that the possibility of abuse stemming from deportation of an
alien before a ruling had been made upon an application which would have
permitted him to become a lawful resident of the United States, requires
that deportation proceedings be held in abeyance until a decision is
made upon a pending application for relief. If, however, deportation
proceedings must be held, counsel contends that either the decision of
the special inquiry officer should be deferred until a ruling is
received upon the application, or the order of the special inquiry
officer finding an alien deportable and granting voluntary departure
should contain a provision preventing deportation before a ruling is
handed down by the District Director upon the application.
The Service representative states that administrative reasons require
that deportation proceedings be processed to a final conclusion giving
the authorities the right to deport the alien, but that the Service has
pursued a lenient policy with respect to the forcible removal of aliens
who have applications pending. He points out that often there is a long
delay which occurs in ruling upon applications for a waiver because
agencies other than the Service are involved. Finally, the Service
representative contends that the Board has no jurisdiction to consider
the issue arising out of the length of time which an alien shall be
permitted to remain in the United States after the special inquiry
officer has found him deportable, when the only issue involved is the
failure of the District Director to pass upon a pending application for
relief.
Although counsel has presented a few situations, some real, some
hypothetical, which in his opinion involved or could involve abuse of
the District Director's power to deport, we do not believe he has
demonstrated that a real problem exists. If there should be an abuse of
discretion, the courts, and this Board (we need not enter into a
question as to our authority to do so at this time) have the power to
see that justice is done. Furthermore, it appears to us that if an
alien, having been found deportable for violation of the immigration
laws, fails to depart in accordance with the provisions of the privilege
of voluntary departure which has been given to him, there should be a
power in the District Director to deport him expeditiously even though
an application for relief may be pending, if the District Director,
after consideration of the bona fides of the application, the length of
time adjudication will take, the ability of the alien to depart and
return, the probability of the success of the application, and other
pertinent factors, decides that the policy of law will be defeated
unless the alien promptly departs. Such power, like all power is
subject to abuse; however, as we have stated, we have not been shown
that it is the policy to abuse this power and it is uncalled-for to
assume that a government official would deliberately abuse this power as
a matter of policy. Furthermore, the Service representative has assured
us that the power is leniently used. We believe the appeal should be
dismissed without prejudice to reconsideration if the application for
the waiver is favorably acted upon.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed without prejudice to reconsideration if the application for
the waiver is favorably acted upon.
A marriage by proxy in Mexico, following a divorce obtained in
absentia in Mexico to terminate a prior marriage, is not valid under the
immigration laws and will not sustain a visa petition to accord nonquota
status on behalf of the second spouse.
The petitioner filed a visa petition to obtain nonquota status for
the beneficiary as his spouse, and on May 11, 1962 the petition was
approved by the District Director of the Service in New York City. On
November 23, 1962 the petitioner was informed of the intention of the
Service to revoke approval of the petition, and on February 1, 1963 an
order of revocation was entered. The case is before us on the
petitioner's appeal from that decision.
The petitioner has established that he is a native-born citizen of
the United States. He was first married to Amelia Casalone on September
24, 1950 at New York City, New York. On April 30, 1960 he obtained a
divorce from her in a Mexican court. The petitioner and his first wife
were not in Mexico at that time. On April 19, 1962 the petitioner
married the beneficiary at Washington, D.C. After the Service informed
the petitioner concerning the intention to revoke the approval of the
visa petition, the petitioner and the beneficiary were married by proxy
in Mexico on January 16, 1963. The sole issue to be determined is
whether the beneficiary is the spouse of the petitioner as required by
section 101(a)(27)(A) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(27)(A)).
We have carefully reviewed the entire record. On January 31, 1963
the petitioner wrote to the District Director of the Service enclosing a
certificate concerning the Mexican marriage on January 16, 1963. This
evidence was not before the District Director at the time his decision
of February 1, 1963 was rendered. However, we have given consideration
to that marriage and to the petitioner's letter addressed to this Board
on June 15, 1963 enclosing a photostatic copy of the original Mexican
marriage certificate of January 16, 1963.
The petitioner no longer relies on his marriage to the beneficiary at
Washington, D.C. on April 19, 1962 but instead on the proxy marriage in
Mexico on January 16, 1963. He has stated that the marriage has been
consummated. He contends that the validity of his marriage is to be
determined by the law of the place where it was contracted; that his
proxy marriage in Mexico is valid in that country; and that a marriage
that is valid where contracted is valid everywhere unless contrary to
public policy.
The controlling decision concerning Mexican divorces is Matter of P ,
4 I. & N. Dec. 610, decided by the Acting Attorney General on March 18,
1952. In that case, the Acting Attorney General had stated that the
rule to be applied was: "that the validity of a marriage is governed by
the law of the place of celebration.' There, the parties to a marriage
mutually agreed that it should be terminated, and the wife went to
Mexico for the purpose of instituting divorce proceedings after which
she returned to the United States. The Mexican divorce was granted in
1947 and a few days thereafter the woman remarried. In 1951, the man
was married in Germany and subsequently filed a visa petition for his
wife. He was in the armed forces of the United States and his superior
officers had advised him that the Mexican divorce was legal. We
ascertained that Mexican divorce decrees had apparently been accepted as
valid by German authorities. Under the circumstances, we held that the
validity of that petitioner's marriage in Germany should be recognized.
The case of this petitioner presents an entirely different factual
situation. In Matter of P , supra, the parties had mutually agreed that
the marriage should be terminated, and we stated that we were impressed
with the evident good faith of the parties. In the case before us, it
is not clear that the first wife had any actual knowledge concerning the
institution of the Mexican divorce proceeding. As indicated in the
District Director's order of February 1, 1963, it appears that, by
reason of the Mexican divorce, the petitioner's subsequent marriage to
the beneficiary at Washington, D.C., is not recognized as valid in the
District of Columbia. We believe it is obvious that Matter of P does
not sanction such a procedure as was resorted to in this case, that is,
the expedient of a proxy marriage in Mexico for the purpose of curing a
marriage which was invalid under the laws of the District of Columbia.
Accordingly, we hold that the petitioner has not established that the
beneficiary is his lawful spouse within the meaning of 8 U.S.C.
1101(a)(27)(A). It follows that the action of the District Director in
revoking approval of the visa petition was correct, and the appeal will
be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
The retention provisions of section 301(b), Immigration and Nationality Act, requiring continuous physical presence in the United States for at least 5 years between the ages of 14 and 28, do not operate to deprive an individual of United States citizenship until he has had a reasonable opportunity to come to the United States as a U.S. citizen after learning of such claim to citizenship.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(20)
-- Immigrant without visa.
The case comes forward pursuant to certification by the special
inquiry officer of his decision dated June 10, 1963, finding the
applicant to be an alien and excludable as an immigrant not in
possession of proper documents.
The facts of the case are not in dispute. The record relates to a
native of Mexico, single, who seeks admission into the United States as
a United States citizen. He was born in Mexico on June 24, 1935. His
father was a native and citizen of Mexico who never resided in the
United States, but his mother was born in Ysleta, Texas, and is a
citizen of the United States. She resided in the United States for
various periods prior to the birth of the applicant. The applicant's
parents married in Mexico on October 15, 1932, and he is the legitimate
issue of that marriage. The applicant entered the United States for the
first time as a citizen on January 7, 1963, in possession of a United
States citizen's identity card issued to him at the American Consulate
at Juarez, Mexico, on the same date. Previously he had entered and
remained in the United States on different occasions as a nonimmigrant
agricultural worker from September 1955 to December 1955, September 1956
to December 1956, September 1957 to January 1958, May 1958 to August
1958, September 1959 to December 1959, and September 1960 to September
1961. The last two periods have been corroborated by the Service and
there is no reason to doubt the applicant's testimony as to the dates he
came to the United States as a nonimmigrant worker.
The applicant testified that he went to the American Consulate in
February 1962 to inquire about an immigrant visa and at that time
learned for the first time that he might be a United States citizen
through his mother. Prior to that date he had never known he might have
a claim to United States citizenship nor had he ever discussed the
possibility with a United States Government official. At the end of
December 1962, the applicant received a letter from the American
Consulate in Juarez, Mexico, which informed him that he could be issued
a document as a citizen of the United States and that it would be
necessary for him to proceed immediately to the United States to live.
The applicant's claim to United States citizenship rests upon section
1993, Revised Statutes, as amended by the Act of May 24, 1934, through
his mother who is a citizen of the United States and who had been
present in the United States prior to his birth. Under section 201(g)
of the Nationality Act of 1940, the applicant was required to reside in
the United States before his sixteenth birthday; but under sections
301(b) and (c) of the Immigration and Nationality Act of 1952, he could
regain United States citizenship by coming to the United States prior to
his twenty-third birthday and by being continuously physically present
in the United States for at least five years, providing that such
physical presence followed the attainment of the age of 14 years and
preceded the age of 28 years. Section 16 of the Act of September 11,
1957, states that absences from the United States of less than twelve
months in the aggregate during the period for which continuous physical
presence in the United States is required shall not be considered to
break the continuity of such physical presence. The applicant here
reached his twenty-third birthday on June 24, 1958, at which time he had
been in the United States for four different periods as an agricultural
worker. However, there was an absence in excess of twelve months from
August 1958 until September 1959 which broke the continuity of his
residence and the time prior thereto could not be computed for the
purposes of complying with the physical presence requirements of section
301(b) of the Act.
The Department of State in a memorandum (Ex. 6) expresses the opinion
that the evidence of record establishes that the applicant was never
aware of his possible claim to United States citizenship through his
mother prior to January 16, 1962, on which date his mother applied for a
United States citizen's identification card at the Consulate. On the
basis of the Attorney General's opinion of May 24, 1962 (Matter of C S ,
Int. Dec. No. 1281), it was concluded that the applicant had applied at
the Consulate for a determination of his United States citizenship
within a reasonable period after learning of his possible claim to such
citizenship; and that under the circumstances he might properly be
issued limited documentation valid for a period to enable him to proceed
forthwith to the United States to begin compliance with the retention
provisions of section 301(b) of the Immigration and Nationality Act.
Matter of C S , Int. Dec. No. 1218, involved a native-born Cuban,
born May 31, 1933, who acquired United States citizenship through his
father under revised section 1993. The applicant did not know of his
citizenship until many years later in 1959 and voted in a Cuban
political election on November 3, 1958, while unaware of his United
States citizenship. The Board of Immigration Appeals relied on the case
of Rogers v. Patokoski, 271 F.2d 858 (9th Cir. 1959), which held, on
closely similar facts, that voluntary acts abroad of voting and serving
in the armed forces of a foreign country did not result in expatriation
where the individual was unaware of his United States citizenship. /1/
The Attorney General compared the decisions in Perri v. Dulles, 206 F.2d
886 (3rd Cir. 1953), and Petition of Acchione, 231 F.2d 845 (3rd Cir.
1954), which held that the two-year period established by section 401(a)
of the Nationality Act of 1940, during which a dual national must return
to the United States or forfeit his American citizenship, did not run
until he became aware of his United States citizenship. The court in
Perri v. Dulles, supra, held that for constitutional reasons the
two-year period of limitations must also be regarded as not beginning to
run until the plaintiff learned that he had a claim to American
citizenship; for to provide that a citizen "shall be forever estopped'
from claiming citizenship by his failure to return to the United States
at a time when he was fully unaware of his citizenship would certainly
be to deprive him of it arbitrarily and without his knowledge, much less
his concurrence. The Attorney General stated that the presumption on in
section 349(b) is addressed only to the question of whether the asserted
act of expatriation was committed voluntarily or under duress, and that
it had no application to a case such as the present in which the acts
were performed voluntarily but without the knowledge of the individual's
United States citizenship. The Attorney General cited the Supreme Court
holding that where a deprivation of the person's right of citizenship is
involved, the facts and the law should be construed as far as reasonably
possible in the favor of the citizen (Nishikawa v. Dulles, 356 U.S. 129
(1958)). He refused to attribute to Congress an intention that United
States citizenship of an individual should be forfeited by reason of
actions taken at a time when he was unaware of his citizenship.
It is believed that the language of the Attorney General in Matter of
C , Int. Dec. No. 1218, is broad enough to include the present case of
the applicant. Section 301(b) of the Immigration and Nationality Act is
not a provision relating to expatriation but it does involve a
forfeiture of a claim to United States citizenship upon failure to meet
the prescribed conditions. In this respect it is similar to the
provisions of section 401(a) of the Nationality Act of 1940 that a dual
national return to the United States within the two-year statutory
period or suffer the loss of citizenship, which has been construed not
to run until the individual became aware of his claim to United States
citizenship. /2/ The Attorney General has endorsed the holding in those
cases and it appears to be but a logical extension to hold that the
forfeiture provisions of section 301(b) of the Immigration and
Nationality Act requiring continuous physical presence in the United
States between the ages of 14 and 28, do not operate to deprive an
individual of United States citizenship until he has had a reasonable
opportunity to come to the United States as a United States citizen
after learning of such claim to citizenship. Under the circumstances of
this case, which clearly show that the applicant did not become aware of
his possible claim to United States citizenship until February 1962 when
he was so informed by officials at the American Consulate, was
documented as a citizen by December 1962 and then proceeded immediately
to the United States, it is concluded that citizenship has not
terminated under section 301(b). The decision of the special inquiry
officer will be reversed.
ORDER: It is ordered that the decision of the special inquiry
officer dated June 10, 1963, he reversed and that the applicant be
admitted as a United States citizen.
(1) Matter of C A , Int. Dec. No. 1175 (1961).
(2) Perri v. Dulles, 206 F.2d 586, 591 (3d Cir. 1953); Petition of
Acchione, 213 F.2d 845 (3d Cir. 1954).
Since the stepparent-stepchild relationship created by virtue of the
petitioner's marriage in 1952 to the father of the beneficiary (latter
then 13 years of age) was discontinued and brought to an end when said
marriage was legally terminated by divorce in 1957 with custody of the
beneficiary awarded the father, and both petitioner and father have
subsequently remarried other persons, the petitioner is not now the
"parent' of the beneficiary within the meaning of section 101(b)(2),
Immigration and Nationality Act, and, therefore, ineligible to petition
for third preference quota status on his behalf as her stepson. Matter
of C , 8 I. & N. Dec. 592, distinguished.
The District Director of Immigration and Naturalization at Los
Angeles, California on June 17, 1963 entered an order denying the visa
petition filed by the petitioner on January 7, 1963 to accord the
beneficiary third preference status as provided in section 203(a)(3) of
the Immigration and Nationality Act. The case has been certified to
this Board for final decision in accordance with the applicable
regulations. The petitioner in her petition to classify status of an
alien for the issuance of an immigrant visa, which was subscribed and
sworn to at San Pedro, California on January 4, 1963, deposed that she
is a native and citizen of Yugoslavia, lawfully admitted to the United
States for permanent residence at Chicago, Illinois on April 6, 1960.
The beneficiary was born in Yugoslavia on February 15, 1939. He has
been living in Canada since October 1962. On examination of the record
we find that the beneficiary was 13 years of age when the petitioner
married the beneficiary's father on July 31, 1952. The petitioner
separated from the beneficiary's father on October 27, 1956 and their
marriage was terminated by divorce on December 3, 1957, at which time
custody of the beneficiary was awarded to his father with whom he has
since resided. The petitioner testified that no issue was born from her
marriage to the beneficiary's father. The petitioner testified that
both she and the beneficiary's father had each remarried on two
occasions since being divorced on December 3, 1957.
Under section 101(b)(1)(B) of the Immigration and Nationality Act the
term "child' means an unmarried person under 21 years of age who is a
stepchild, whether or not born out of wedlock, provided the child has
not reached the age of 18 years at the time the marriage creating the
status of stepchild occurred. Section 101(b)(2) of the Act defines the
term "parent,' "father,' or "mother' as meaning a parent, father, or
mother only where the relationship exists by reason of any of the
circumstances set forth in section 101(b)(1) of the Act. Hence, under
the pertinent statutes the petitioner and the beneficiary acquired the
status of "mother' and "child,' respectively, when the petitioner
married the beneficiary's father on July 31, 1952.
The District Director's conclusion that the petitioner was not the
beneficiary's parent or mother at the time she executed and filed on his
behalf the petition to accord him preference quota status under section
203 of the Immigration and Nationality Act and his reasons therefor are
concurred in by this Board. In Matter of C , 8 I. & N. Dec. 592, this
Board held that a married stepdaughter, 45 years of age, was eligible on
petition for fourth preference quota status as a "daughter' within the
meaning of section 203(a)(4) of the Act, as amended, provided there
existed an original relationship of "stepparent' and "stepchild' validly
created in accordance with the provisions of section 101(b)(1)(B) of the
Act, as amended. In Matter of C , supra, the marriage between the
beneficiary's mother and the petitioning stepfather was in existence
when the petition was filed on behalf of the beneficiary and at the time
of the Board's decision on March 4, 1960. In other words, the
relationship established by reason of section 101(b)(1)(B) of the Act
does not cease to exist when the stepchild marries or reaches 21 years
of age provided the marriage that created the status of stepchild is in
existence. In Matter of C , supra, there was a reuniting of a family
unit that had been in existence since the beneficiary was seven years
old.
The facts in the instant case are readily distinguishable from those
present in Matter of C , supra. In the instant case the evidence
establishes that the relationship between the petitioner and the
beneficiary lapsed on October 27, 1956 when the petitioner separated
from the beneficiary's father. In this connection, it is noted that the
petitioner in her application for an immigrant visa, subscribed and
sworn to before a United States Consular officer at Oslo, Norway on
March 31, 1960, deposed she had been living and employed in Oslo, Norway
since 1956. The relationship ceased to exist in fact on December 3,
1957 when the petitioner's marriage to the beneficiary's father was
dissolved pursuant to a decree of divorce. The relationship between the
petitioner and beneficiary that came into being by reason of the
petitioner's marriage to the beneficiary's father in 1952 was one of
"affinity,' as distinguished from consanguinity.
Consanguinity or blood relationship is incapable of dissolution.
"Affinity' is generally defined to be the relationship by marriage
between a husband and his wife's blood relatives, or between a wife and
her husband's blood relatives. Hence, it has been held that upon
dissolution of a childless marriage by divorce and remarriage of wife or
husband, "affinity' between divorced husband and wife's children of a
former marriage is extinguished. When the marriage is dissolved, and
there are no children of the marriage, society is not served or
benefited by the continuance of the fiction when the cause has ceased
(cf. Brotherhood of Locomotive Firemen and Enginemen v. Hogan, et al.
and authorities cited, 5 F.Supp. 598).
The petitioner herein has testified that no issue resulted from her
marriage to the beneficiary's father and that she and the beneficiary's
father have each remarried twice since their divorce in December 1957.
The evidence of record shows the beneficiary's father was awarded
custody of him at the time of the aforementioned divorce and that the
beneficiary thereafter resided with his father until at least October
1962. The relationship which came into being between the petitioner and
the beneficiary by virtue of the petitioner's marriage to the
beneficiary's father in 1952 was discontinued and brought to an end when
the aforementioned marriage was legally terminated by divorce in
December 1957. Moreover, the beneficiary's father's two remarriages
created additional stepmothers of the beneficiary. The statute requires
that the petitioner be the "parent' at the time of the filing of the
petition. In this case the petitioner cannot meet this statutory
requirement and on the basis of all the evidence present in this record
together with the authorities cited, it is our considered opinion that
the petitioner is not the "parent' of the beneficiary and as a
consequence thereof may not petition for issuance of an immigrant visa
on his behalf. Clearly, it cannot be held that a family unit is being
reunited in this case. Upon full consideration of all the evidence of
record, the findings of fact, conclusion of law and the order entered by
the District Director of Immigration and Naturalization on June 17, 1963
are hereby approved. Hence, the following order will be entered.
ORDER: It is ordered that the order entered by the District Director
of Immigration and Naturalization at Los Angeles, California on June 17,
1963, denying the petitioner's petition to accord the beneficiary third
preference status as provided in section 203(a)(3) of the Immigration
and Nationality Act be and the same is hereby approved.
(1) Liability to fine as to an alien crewman inspected and denied landing privileges, as to whom permission was later granted the agent to take him ashore for medical treatment conditioned upon his being under guard at all times and returned to the vessel but who eluded his guard and is still at large, properly lies under subsection (a)(3) of section 254, Immigration and Nationality Act.
(2) Proceedings under section 254(a)(3) of the Act require personal service of notice to deport on the party charged with liability to fine.
IN RE: M/S Panaghia Theoskepasti, which arrived at the port of New York from foreign on February 8, 1963. Alien crewman involved: Aristidis Muskatas.
BASIS FOR FINE: Act of 1952 --- Section 254 (8 U.S.C. 1284).
The District Director at New York has ordered an administrative
penalty of $600, $1,000 mitigated to the extent of $400, imposed upon
the vessel's agents. Said official predicates his action on a Notice of
Intention to Fine (Form I-79) stating that the section of the law
involved is 254 of the Immigration and Nationality Act (8 U.S.C. 1284).
He charges a violation thereof, in the following language:
. . . failure to detain on board the vessel at all times an
alien crewman (Aristidis Mustakas) who had not been granted a
conditional permit to land temporarily in the United States.
It appears upon the record before us that the following material
facts exist without substantial controversy. Aristidis Mustakas, a
native and national of Greece, was serving as a crewman aboard this ship
at the time of its above-described arrival in the United States.
Immigration inspection, which was then accorded its crew members,
resulted in the refusal of conditional landing privileges to him. Under
the statute, therefore, the vessel's agents, inter alia, had the
absolute duty of detaining him on board the ship and deporting him from
the United States thereon. However, the Service later gave the agents
permission to take the crewman ashore for medical treatment, on
condition that he be kept under guard at all times and returned aboard
the vessel. The ship's second officer was assigned the task of
accompanying the crewman to the doctor and bringing him back to the
ship, but the latter eluded his guard en route to the doctor's office.
Insofar as the record shows, he is still at large in this country.
As to crewmen arriving aboard vessels in United States ports, section
254(a) of the Immigration and Nationality Act (8 U.S.C. 1284) imposes
three separate and distinct, though closely related, duties which the
parties named in the statute, including the vessel's agents, are charged
with the responsibility of meeting. Failure to perform these duties
subjects those parties, agents included, to the penalty specified in the
statute.
Subsection (1) requires crewmen to be detained on board an arriving
vessel until an immigration officer has completely inspected them. It
does so without the necessity of individual notice. The reason is that
the law itself, without more, serves as notice.
Subsection (2) provides that crewmen must be detained on board after
inspection, unless and until they are issued landing permits. Again,
there is no requirement of individual notice. The reason, likewise, is
that the statute itself serves as notice to continue the detention until
such time as an immigration officer lifts it by issuing a conditional
landing permit, or otherwise. When and if that is done, the terms of
the permit and/or the other conditions attached to the crewman's landing
constitute full notice to all, agents included, of the limitations
placed thereon. While the permit or other authorization may not be
furnished the agents, the statute makes them responsible nevertheless.
Subsection (3) necessitates the deportation of crewmen, either before
or after they are permitted to land temporarily, if such action is
required. This provision of the statute is the logical result sought to
be accomplished by subsections (1) and (2) thereof, to the end that the
intent of the Congress in enacting this legislation, to wit: the close
control of crewmen and the prevention of aliens from using the seaman's
route to gain easy access to this country, might be effectuated.
Clearly, as to a crewman required by the statute to be detained on
board until inspection and not thereafter granted a conditional landing
permit by the examining immigration officer, then, as in cases of
subsections (1) and (2) the law itself, without more, serves as notice
to deport. To hold otherwise would be to reach an absurd result. But
if the requirement of deportation is imposed after the crewman has been
granted a conditional landing permit and his detention lifted, then
notice of a personal nature is essential. (Matter of SS "Marilena,' 7
I. & N. Dec. 453; Matter of M/V "Arnfinn Stange,' 8 I. & N. Dec. 639.)
In the unreported case of the SS. "Atlantic Unity,' (PHI-10/
99.161), decided by this Board on July 9, 1959, we were confronted with
a situation substantially similar to the one now before us for
consideration. Therein, the boarding immigration officer refused
conditional landing privileges to an alien crewman, but the Service
later consented to his removal from the ship for hospitalization. Such
consent was given upon the responsible parties agreeing in writing to
the following conditions: that upon release from the hospital, the
crewman would be promptly removed from the United States without expense
to the Government; that he would be under guard after his release from
the hospital until his deportation; and that the foregoing arrangements
would not relieve the responsible parties from liability to fine
proceedings and deportation costs if the crewman failed to so depart
from the United States. These conditions were not met and the crewman
gained his enlargement in the United States, although he was eventually
taken into custody by Service officers.
The proceedings in the foregoing case were based on a charge of
"failure to deport' in violation of section 254(a)(3) of the Immigration
and Nationality Act. We upheld the fine imposed by the District
Director therein, thus indicating the appropriate provision of the
statute to be relied on in substantially similar situations when there
has been a "failure to detain and deport.' In this instance, however,
section 254(a)(3) was not used. Therefore, the appeal will be
sustained.
ORDER: It is ordered that the appeal be and the same is hereby
sustained.
(1) Where an oath of allegiance is taken during minority, nationality loss under section 2, Act of March 2, 1907, occurs as of the date after attaining majority and prior to January 13, 1941, of the performance of an act confirmatory of the oath of allegiance taken during minority, unless precluded by the proviso to section 2 relating to expatriation during World War I.
(2) Alleged mandatory service from April 2, 1939, to June 19, 1939,
in the Italian army by a dual national after attaining majority was
involuntary and cannot be regarded as confirmatory of an oath of
allegiance taken during monority in the absence of evidence to establish
that such service was voluntarily performed and in view of the
well-known ruthlessness of the Fascist regime which, even as early as
1935, would hardly have tolerated resistence to its draft laws by an
admitted national of Italy.
The above-named has applied for a certificate of citizenship,
claiming to have acquired citizenship at birth in Italy on September 7,
1939, to a citizen father and an alien mother.
The pertinent statute in effect when the applicant was born was
section 1993, R.S., as amended by the Act of May 24, 1934, providing
that:
Any child hereafter born out of the limits and jurisdiction of
the United States, whose father or mother or both at the time of
the birth of such child is a citizen of the United States, is
declared to be a citizen of the United States; but the rights of
citizenship shall not descend to any such child unless the States
father or citizen mother, as the case may be, has resided in the
United States previous to the birth of such child. In cases where
one of the parents is an alien, the right of citizenship shall not
descend unless the child comes to the United States and resides
therein for at least five years continuously immediately previous
to his eighteenth birthday, * * *.
The latter part of this section concerning retention of citizenship
was changed by the provisions of section 201(g) of the Nationality Act
of 1940 (54 Stat. 1138-39), effective 1/13/41, and these in turn were
affected by section 301(b) and (c) of the Immigration and Nationality
Act, effective December 24, 1952 (8 U.S.C. 1401), quoted below:
Any person who is a national and citizen of the United States
at birth under paragraph (7) of subsection (a), shall lose his
nationality and citizenship unless he shall come to the United
States prior to attaining the age of twenty-three years and shall
immediately following any such coming be continuously physically
present in the United States for at least five years: Provided,
That such physical presence follows the attainment of the age of
fourteen years and precedes the age of twenty-eight years.
Subsection (b) shall apply to a person born abroad subsequent
to May 21, 1934: Provided, however, That nothing contained in
this subsection shall be construed to alter or affect the
citizenship of any person born abroad subsequent to May 24, 1934,
who, prior to the effective date of this Act, has taken up a
residence in the United States before attaining the age of sixteen
years, and thereafter, whether before or after the effective date
of this Act, complies or shall comply with the residence
requirements for retention of citizenship specified in subsection
(g) and (h) of section 201 of the Nationality Act of 1940, as
amended.
The record discloses that the applicant entered the United States on
January 18, 1959, when 19 years of age. No issue with regard to
applicant's retention of United States citizenship arises out of the
fact that he was over 16 years of age when he came to the United States,
the taking up of physical presence in this country prior to 23 years of
age still being timely for such purposes under section 301(b).
The applicant's father was born on January 28, 1918, in Trenton, New
Jersey, of Italian parents. He resided in the United States until 1920,
when his father took him to Italy. In 1953, he emigrated to Canada, and
on May 27, 1958, he was admitted to the United States as an alien, in
possession of an immigrant visa. On November 8, 1937, when only 19
years of age, he voluntarily enlisted in the Italian army for a period
of two years, and took an oath of allegiance in connection with such
military service. This volunteer status in the Italian army was
terminated on October 10, 1938. He was recalled to military service on
April 2, 1939, and discharged on June 19, 1939, "for end of enlistment.'
He was again recalled to active duty in the Italian army on June 21,
1941, and was discharged on November 28, 1944. He voted in Italy in
political elections in 1946, 1947, and 1948.
The question presented is whether the applicant's father was a
citizen of the United States at the time of the applicant's birth.
The father was a dual national at birth, having acquired United
States citizenship by virtue of the XIVth Amendment to the Constitution,
and Italian citizenship under the Italian Nationality Law of 1912, which
recognizes the principle of jus sanguinis. The expatriation statute in
effect at the time of the applicant's birth was section 2 of the Act of
March 2, 1907, providing in pertinent part:
That any American citizen shall be deemed to have expatriated
himself * * * when he has taken an oath of allegiance to any
foreign state. * * * And provided also that no American citizen
shall be allowed to expatriate himself when this country is at
war.
As pointed out above, the applicant's father took such an oath of
allegiance in connection with his entry into the Italian armed forces
when he was 19 years of age. It has long been settled by both
administrative practice and judicial decision that a citizen by birth,
who has not yet attained his majority, cannot expatriate himself under
the Act of March 2, 1907, by taking an oath of allegiance to a foreign
state (Perri v. Dulles, 206 F.2d 586; U.S. ex rel Baglivo v. Day, 28
F.2d 44; Augello v. Dulles, 220 F.2d 344). However, a minor may by
clear and unequivocal acts after reaching his majority indicate a desire
to confirm an oath of allegiance taken during his minority and thereby
complete his loss of nationality under that Act (DiGirolamo v. Acheson,
101 F.Supp. 380; Matter of L , 2 I. & N. Dec. 789; Matter of W , 4 I.
& N. Dec. 22).
In analogous situations, the Service has followed the "relation back'
theory in fixing the date upon which nationality was lost. Thus, it had
been held that an act manifesting acceptance of a foreign nationality
previously involuntarily acquired related back to the date of
acquisition of foreign nationality, thereby resulting in loss of
nationality as of the earlier date (Matter of V , 3 I. & N. Dec. 671).
Similarly, where persons who had acquired both United States and foreign
nationalities during minority elected the foreign nationality, the act
of election related back to the attainment of majority (Matter of G , 1
I. & N. Dec. 329). In Matter of S , 8 L. & N. Dec. 604, where an oath
of allegiance, not expatriating because taken during a period when the
United States was at war, was subsequently confirmed, nationality was
determined to have been lost as of July 2, 1921, the date of termination
of the war period.
This "relation-back' principle has recently been reconsidered. In a
case involving acceptance of a foreign nationality previously acquired
by operation of law (Matter of DiP , Int. Dec. No. 1215), the Board of
Immigration Appeals ruled that the retroactive feature should be
modified, stating as follows:
There is, therefore, no longer any justification for indulging
in the fiction that the act showing acceptance of Italian
nationality invariably also shows a voluntary acceptance of
Italian nationality as of the first possible moment such
acceptance could be made. In the interval within which it was
possible to make the choice of becoming an Italian national and
the actual making of the choice, the individual may have been
indifferent, undecided, or even hostile to the acceptance of
Italian nationality.
In Matter of Piconc, Int. Dec. No. 1259, also involving acceptance of
a foreign nationality previously acquired, the Attorney General held
that the Board of Immigration Appeals had correctly ruled that
expatriation should no longer be held to relate back, but should date
from the act of acceptance.
Although these two cases involve acceptance of a foreign nationality
involuntarily acquired by operation of law, their rationale should be
equally applicable to the instant case. "The significance of the act of
acceptance does not lie primarily in its value as proof of previous
intent, for such value is often doubtful, but rather in its value as a
manifestation of present intent.' (Matter of Picone, supra). Further,
acceptance of a foreign nationality previously acquired, election of
nationality by minors possessing dual nationality, and confirmation of
an oath of allegiance taken during war time, were all regarded in the
same posture in applying the "relation back' theory. It would be
anomalous to hold that this doctrine should be abandoned only with
respect to foreign nationalities involuntarily acquired, and the rule
with regard to oaths of allegiance taken during disability remain
unchanged. It must, therefore, be concluded that under section 2 of the
Act of March 2, 1907, nationality is lost as of the date after majority
upon which an act confirmatory of the underage oath of allegiance is
performed, unless that effect is inhibited by the proviso to section 2
relating to expatriation during World War I.
Next we must determine what constitutes a confirmatory act in such
instances. Such an act has been characterized as one which indicates a
continued allegiance to the foreign state (Matter of L , supra).
Clearly, subsequent military service performed after attaining majority
is of such a nature, particularly since the recognition of the duty of
military service to the country of origin is inconsistent with the duty
of an American citizen to this country (See U.S. ex rel De Cicco v.
Longo, 46 F.Supp. 170). Voting is also regarded as a confirmatory act
of an underage oath of allegiance (Matter of L , 2 I. & N. Dec. 789).
Prior to the applicant's birth, the father served a second period of
military service from April 2, 1939, to June 19, 1939, after he had
attained majority. He has testified that this service was mandatory and
was regarded as a continuation of his original two-year enlistment. Did
he thereby effectively confirm the oath of allegiance in conformity with
the foregoing?
It must be remembered that no conduct results in expatriation unless
the conduct is engaged in voluntary (Nishikawa v. Dulles, 356 U.S.
129). There must be consideration of the circumstances attending the
service in the foreign army and the reasonable inferences to be drawn
therefrom (Acheson v. Maenza, 202 F.2d 453, citing Okimura v. Acheson,
342 U.S. 99 and Murata v. Acheson, 342 U.S. 900). Factual doubts are
resolved in favor of citizenship (Alata v. Dulles, 221 F.2d 52, and
cases cited). Considering the father's testimony in connection with the
well known ruthlessness of the Fascist regime, which even as early as
1935, would hardly have tolerated resistance to its draft laws by an
admitted national of Italy (See Acheson v. Maenza, supra) and the
absence of any testimony to establish that such period of service was
voluntarily performed, it must be concluded that it was involuntary and
cannot be regarded as confirmatory of the oath of allegiance taken
during minority.
The father's third period of military service from June 21, 1941, to
November 8, 1944, and his voting in Italian elections in 1946, 1947, and
1948 are worthy of note. Since these occurred subsequent to the
applicant's birth, they cannot have any impact upon his status. They
are mentioned for the sole purpose of illustrating an additional
development of the expatriation laws. Although a questionable claim of
duress has been advanced as to the voting, it may be assumed, arguendo,
that such actions were voluntary and, as stated above, would generally
be regarded as confirmatory acts of an oath of allegiance taken during
minority.
On January 13, 1941, the Nationality Act of 1940 (54 Stat. 1137)
became effective. In addition to repealing section 2 of the Act of
March 2, 1907, this statute set forth prospective grounds of
expatriation. It provided further that loss of nationality shall result
solely from the performance of the acts or fulfillment of the conditions
specified in the Act. Examination of such acts and conditions discloses
no provision with respect to confirmation of an oath of allegiance taken
while a minor. Moreover, inasmuch as section 2 of the Act of 1907 was
repealed prospectively by the Nationality Act of 1940, the Attorney
General has ruled that the 1907 Act affected only cases involving acts
that occurred during the period between 1907 to 1941 (Matter of Picone,
supra). It follows that where an oath of allegiance is taken during
minority, nationality can be lost under the 1907 Act only if a
confirmatory act is performed after majority and prior to January 13,
1941. The third period of the father's military service and his voting,
all having occurred subsequent to January 12, 1941, cannot therefore be
considered in this aspect.
In light of all of the foregoing, it is found that the applicant's
father was not expatriated prior to the applicant's birth and was a
citizen of the United States when the applicant was born.
ORDER: It is ordered that the application for a certificate of
citizenship be and the same is hereby granted.
Respondent, a 27-year-old Yugoslav crewman, has not established that because he deserted his vessel he will be subject to physical persecution within the meaning of section 243(h), Immigration and Nationality Act, if deported to Yugoslavia, since the penalties for such desertion are reprimand, fine and loss of wages earned (but ordinarily not jail.)
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant (crewman) -- remained longer.
On April 29, 1963, the special inquiry officer, after finding that
the respondent has failed to establish that he would be subject to
physical persecution if deported to Yugoslavia, authorized the privilege
of voluntary departure for him, with the provision for his deportation
to Sweden, alternatively to Yugoslavia, on the charge contained in the
order to show cause in the event of his failure to so depart. The
appeal from that decision, which brings the case before this Board for
consideration, will be dismissed.
The record relates to a 27-year-old male alien, a native and citizen
of Yugoslavia, who last entered the United States on or about September
21, 1962. He was then admitted as a crewman for the period of time his
vessel was to remain in port, but in no event to exceed 29 days. He has
remained in this country since the expiration of the temporary period of
his admission without authority. Accordingly, his deportability on the
above-stated charge is established. It is also conceded.
The special inquiry officer has granted the respondent's request for
voluntary departure. In this connection, the respondent has testified
that he has never been arrested or had any difficulty with the police.
There is no evidence of record indicating that he has been other than a
person of good moral character during the past five years. He is
married to a naturalized citizen of the United States, who testified in
his behalf in the course of the deportation proceedings. The record
confirms the respondent's testimony that he surrendered himself
voluntarily to the Immigration Service. He has asserted that he is
ready and willing to leave the United States at his own expense rather
than be deported. The special inquiry officer was satisfied that, if
faced with the alternative of deportation, the respondent would depart
from the United States to some country of his choice. For these
reasons, we agree with the special inquiry officer that voluntary
departure is merited in these premises. His action in this respect,
therefore, is affirmed.
The only issue remaining to be resolved here is whether the
respondent has met the burden resting upon him in this proceeding of
establishing that he would be subjected to physical persecution if
deported to Yugoslavia. For the reasons hereinafter stated, we find
that he has not. Therefore, the appeal will be dismissed.
Generally speaking, physical persecution, the likelihood of which
authorizes a stay of deportation under this section of the law, means
confinement, torture, or death inflicted on account of race, religion or
political viewpoint. /1/ The main thrust of respondent's argument here,
ignoring the questions of race and religion, is that he will be
subjected to persecution because of his political viewpoint. In
essence, his claim is that he has openly expressed opposition to
communism, Yugoslav style, by persistently refusing to join the party;
and, at least on his last four voyages, by discussing with fellow crew
members the good points of the capitalistic system and the weaknesses of
dictatorships. We, however, agree with the special inquiry officer that
the record, showing that respondent was able to speak as he did and
resist all overtures to join the Party, without detriment to his career,
does not support the respondent's position.
For about three years prior to becoming a crewman, respondent was an
office worker, sailed on a small river boat, and served in the Yugoslav
navy. After his discharge, he sailed as a cadet officer for two years,
and then took an examination for the merchant marine. He was qualified
for this by the training he had received in the naval academy. During
his years as a crewman, he rose to the position of second navigating
officer.
In our opinion the respondent's progress careerwise, as set forth
above, belies any claim to persecution because of opposition to
communism. As a matter of fact, respondent has testified that the worst
that would happen to him for his refusal to join the Party and his
viewpoint would be assignment to ships destined to the Indian Ocean, and
denial of scholarships for higher education.
It also has been judicially determined that economic proscription so
severe as to deprive a person of all means of earning a livelihood may
amount to physical persecution. /2/ However, the respondent concededly
does not base his claim to physical persecution on utilitarian
sanctions. In his own words: "He was doing rather well for himself at
the time he jumped ship and gave up a career with considerable potential
* * *.' /3/ This aspect of the case, then, speaks for itself and
requires no further comment.
It has further been ruled that imprisonment for illegally deserting a
vessel is a criminal sanction reconcilable with generally accepted
concepts of justice, and not physical persecution within the purview of
this section of the law. /4/ The court later modified this ruling,
however, to the extent of holding that an alien threatened with long
years of imprisonment, perhaps even a life sentence, for attempting to
escape a communist dictatorship would be entitled to a stay of
deportation on the ground of physical persecution. /5/ And still
subsequently it decided that possible incarceration for one (1) or two
(2) years resulting from illegally deserting a ship is not physical
persecution. /6/
In our opinion, the facts of this record, applied in the light of the
foregoing precedents, do not call for reversal of the special inquiry
officer. The respondent has submitted an affidavit /7/ by a qualified
expert on Yugoslav law. /8/ Specifically, the affidavit points out (p.
4) that the abandonment of his ship by a Yugoslav crewman is,
theoretically, a disciplinary offense punished pursuant to Article 48 of
the "Decree Concerning the Crews of the Merchant Marine of September 17,
1949.' It further sets forth that the penalties for such ?? thereunder
are reprimand, fine, and loss of earned wages, but ordinarily not jail.
This, certainly, does not support a claim of possible long imprisonment
for "jumping ship.'
Respondent's attempts to nevertheless bring himself within the scope
of the Sovich case ( /5/ , ante), on the theory that his conduct aboard
ship, as hereinbefore described, would bring him within Article 118 of
the Yugoslav Code of Criminal Procedure providing for imprisonment up to
12 years in the case of a person who "represents the social political
conditions in the country maliciously and untruthfully,' is mere
conjecture on his part. The success of his career as a merchant
mariner, as outlined above, deprives such an assumption of any validity
whatsoever. As a matter of fact, as indicated previously, he has
himself stated that the worst that could happen to him would be
assignment to ships destined to the Indian Ocean and the denial of
scholarships for higher education.
Finally, on this point, the respondent was not persecuted during all
the years that he lived in Yugoslavia or served aboard its ships. His
mother and sister still live in Yugoslavia and no showing has been made
that they have been subjected to physical persecution either. Again,
these matters speak for themselves.
Actually, what the respondent seeks on appeal is a delay in the time
for his voluntary departure until he can legalize his status by taking
advantage of a nonquota visa petition filed by his citizen wife and
approved by the Service on May 20, 1963. /9/ In effect, then, the
respondent desires an extension of the time for his voluntary departure.
But this is a matter properly for the consideration of the District
Director having jurisdiction over respondent's place of residence, not
this Board. Accordingly, and in view of the foregoing, the special
inquiry officer's decision of April 29, 1963, is hereby approved.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Blazina v. Bouchard, 286 F.2d 507 (C.A. 3, 2/2/61).
(2) Dunat v. Hurney, 297 F.2d 744 (C.A. 3, 1/24/62).
(3) 1st two sentences, last Paragraph , p. 6 -- Brief on Appeal.
(4) Diminich v. Esperdy, 299 F.2d 244 (C.A. 2, 12/29/61); cert.
den. 4/9/62-82 S.Ct. 875.
(5) Sovich v. Esperdy, 31 L.W. 2585, 13 Ad.L.2d 619 (C.A. 2, 5/15/
63).
(6) Zupicich v. Esperdy, C.A. 2, 6/28/63, 319 F.2d 773.
(7) Exhibit 3.
(8) Branko M. Peselj, Esq. -- member of the Yugoslav bar and a
practicing attorney in that country (1931-1945) -- research assistant,
Free Europe, Inc., in charge of the office of the Library of Congress
working on various international, legal, social and political problems
(1950-1955) -- member of D.C. bar and local practicing attorney (since
1955) -- special attorney, U.S. Dept. of Justice, Office of Alien
Property, Foreign Law Section (1956-1958) -- USIA, Voice of America,
Yugoslav Service (present) -- Adjunct Professor of Law, Georgetown
Univ., lecturing on Socialist Law and the Socialist Legal System
(present) -- publisher of, inter alia, THE SOCIALIST CHARACTER OF
YUGOSLAV LAW, "Review' Vol. 1, No. 2, London, 1961; and "Contemporary
Croatia in the Yugoslav Federation: Its Constitutional Status and
Socioeconomic Position,' Journal of Croatian Studies, Vol. 11 (1961) pp.
80-133.
(9) He asserts that immigration procedures via the United States
Embassy in Dublin, Ireland, have been initiated.
While an applicant for suspension of deportation who is exempt from the requirement of any specified period of continuous physical presence as provided by section 244(b), Immigration and Nationality Act, as amended, is also exempt from the necessity of establishing good moral character for the period coextensive with the physical-presence period, he must establish good moral character between the date the filed his suspension application and the date it is finally adjudicated. Conduct prior to the filing date can be considered in determining whether good moral character has been established during the period in question.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry under section 212(a)(20) -- No immigrant visa.
The special inquiry officer on June 18, 1963 entered an order
granting the respondent's request that his deportation be suspended
under the provisions of section 244(a)(1) of the Immigration and
Nationality Act and directed that the case be certified to this Board
for final decision in accordance with the applicable regulations. The
respondent, a 28-year-old married male, native and citizen of China, was
first admitted to the United States at San Francisco, California on
March 24, 1948 under the name of Louie Chung Hing as the United States
citizen son of Louie Sheuck Yu, a native-born citizen of the United
States. The respondent last entered the United States at Travis Air
Force Base on or about May 16, 1960 as a member of the United States
Armed Forces. Deportation proceedings were instituted against the
respondent on February 14, 1962.
Hearings in deportation proceedings were held at Seattle, Washington
on March 6 and March 26, 1962, at which time the respondent and counsel
admitted the truth of the factual allegations set forth in the order to
show cause and conceded deportability on the charge stated therein. The
respondent was not a citizen of the United States on the occasion of his
initial admission at San Francisco, California in March 1948 or when he
last entered the United States as a member of the armed forces in May
1960. The decision of the special inquiry officer directing that the
respondent be deported from the United States to Hong Kong or in the
alternative to Formosa became final when no appeal was taken therefrom.
The evidence of record clearly establishes that the respondent is
subject to deportation under the provisions of section 241(a)(1) of the
Immigration and Nationality Act, in that, at the time of entry he was
within one or more of the classes of aliens excludable by the law
existing at the time of such entry, to wit, aliens who are immigrants
not in possession of a valid unexpired immigrant visa, reentry permit,
border crossing card, or other valid entry document and not exempted
from the possession thereof by said Act or regulations made thereunder,
under section 212(a)(20) of the Immigration and Nationality Act.
The respondent's motion requesting that the proceedings be reopened
for the purpose of affording him an opportunity to prosecute an
application for suspension of deportation under the provisions of
section 244 of the Immigration and Nationality Act as amended by the Act
of October 24, 1962 was granted by the special inquiry officer on
January 25, 1963. For the reasons hereinafter set forth, the special
inquiry officer's decision of June 18, 1963 granting the respondent's
application for suspension of deportation under section 244 of the
Immigration and Nationality Act, as amended, will be approved. The
evidence adduced at the reopened hearing held at Seattle, Washington on
February 1, 1963 establishes that the respondent was born in Hong Kong,
British Crown Colony, on June 8, 1935; that he attended primary school
in Hong Kong until he was 12 years of age, at which time arrangements
were made by his father, then a resident of the United States, to have
the respondent enter the United States as the son of one Louie Sheuck
Yu, a native-born citizen of the United States. The respondent's
testimony indicates that after his admission to the United States he
retained his assumed identity of Louie Chung Hing; that he completed
high school in the United States and joined the Washington State
National Guard in 1956.
The respondent enlisted in the Regular Army of the United States on
September 7, 1957. He served continuously therein until his honorable
discharge therefrom on May 16, 1960, a period of two years and eight
months, at which time he was transferred to the United States Reserve
Corps. While a member of the armed forces of the United States
stationed in Guam, the respondent secured leave and went to Hong Kong,
British Crown Colony, where he was married on January 30, 1959 to one
Tso Lai Jen, a native and citizen of China. (Ex. 7) A son, now two
years of age, was born of this union in Hong Kong, British Crown Colony.
The respondent's petition for the issuance of a nonquota immigrant visa
to his wife subscribed and sworn to before a United States Consular
Officer at Hong Kong, British Crown Colony, on February 6, 1959 failed
to receive favorable consideration because the respondent was unable to
submit any evidence in support of his claim that he was a United States
citizen and he refused to submit to blood grouping tests. The
respondent when questioned under oath by an officer of the Service at
the office of the American Consulate in Hong Kong, British Crown Colony,
on June 29, 1959 reiterated his false claim of being a citizen of the
United States and deposed that his father was Louie Sheuck Yu, a
native-born citizen of this country.
The respondent's application requesting that his deportation be
suspended under sections 244(a)(1) and 244(b) of the Immigration and
Nationality Act was subscribed, sworn to and submitted for consideration
at the Seattle, Washington office of the Service on February 1, 1963.
Section 244(b) of the Immigration and Nationality Act as amended by the
Act of October 24, 1962 provides that the requirements of continuous
physical presence in the United States specified in paragraphs (1) and
(2) of subsection (a) shall not be applicable to an alien who has served
for a minimum period of 24 months in an active duty status in the armed
forces of the United States and, if separated from such service, was
separated under honorable conditions. As previously noted, the
respondent served honorably in the United States Armed Forces on an
active duty status for a continuous period of two years and eight
months. This Board held in Matter of P , A-11402870, decided June 19,
1963, that an applicant who is exempt from the requirements of any
specified period of continuous physical presence as provided in section
244(b) of the Immigration and Nationality Act is also exempt from the
necessity of establishing good moral character for the period
coextensive with the physical presence period; that the alien in such
case must establish good moral character between the date of the filing
of his application for suspension of deportation and the date that it is
finally adjudicated and the alien's conduct prior to the date of filing
can be considered in determining whether good moral character has been
established during the period in question.
The only manner in which the respondent's immigrant status can be
adjusted is by suspension of deportation. He is ineligible for
adjustment of status under section 245 of the Immigration and
Nationality Act because the quota for Chinese persons is pre-empted in
all categories for an indefinite period and he cannot quality for the
creation of a lawful record of admission under section 249 of the Act.
The record reflects the respondent has never been affiliated with any
subversive or proscribed organizations. Except for traffic arrests, the
respondent has no criminal record in the United States or elsewhere.
Independent character investigations conducted by the Service are
entirely favorable to the respondent's application for the discretionary
relief of suspension of deportaiton. He has maintained an excellent
employment record and his present employer describes him as a
conscientious person of good character and reputation, without
objectionable traits or bad habits. The respondent's fraudulent
admission to the United States in March 1948 as a citizen thereof and
his retention of the assumed identity under which he was admitted to the
United States in 1948 as well as his continuing to claim to be a citizen
of the United States until sometime after his discharge from the United
States Armed Forces in May 1960 are acts which should not be charged
against the respondent inasmuch as he was only a child 12 years of age
when his natural father, then a resident of the United States, arranged
to have him admitted to the United States as the citizen son of Louie
Sheuck Yu, a United States citizen.
The respondent has been a resident of the United States since he was
12 years old, a period of more than 15 years. His military record in
the United States Army is excellent. Moreover, he speaks good English
and enjoys a good reputation among associates and employers. Persons
who have known the respondent for many years attest that he is a person
of good moral character and loyal to the United States. Clearly, his
deportation from the United States would result in extreme hardship to
himself. On the basis of all the evidence in this record, we find that
the respondent has established good moral character and is statutorily
eligible for the discretionary relief of suspension of deportation under
section 244(a)(1). For the reasons hereinbefore set forth, no change
will be made in the order of the special inquiry officer granting
suspension of deportation.
ORDER: It is ordered that the deportation of the alien be suspended
under the provisions of section 244(a)(1) of the Immigration and
Nationality Act.
It is further ordered that if the Congress takes no action adverse to
the order granting suspension of deportation, the proceedings be
cancelled, and the alien, if a quota immigrant at the time of entry not
then charged to the appropriate quota, be so charged as provided by law.
It is further ordered that in the event Congress takes action adverse
to the order granting suspension of deportation, these proceedings shall
be reopened upon notice to the alien.
An alien admitted to the United States upon presentation of a nonquota immigrant visa procured by fraud is statutorily eligible for adjustment of status under section 245, Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at time of entry under section 212(a)(20), immigrant, no
visa.
This case comes forward on appeal from an order entered by the
special inquiry officer on June 3, 1963, denying the respondent's
application requesting that his immigrant status be adjusted to that of
a permanent resident as provided in section 245 of the Immigration and
Nationality Act and directing that he be deported from the United States
to Syria on the charge contained in the order to show cause. The
respondent, a 43-year-old married male, native and citizen of Syria,
first entered the United States at El Paso, Texas on November 29, 1955,
at which time he had in his possession and presented for inspection
nonquota immigrant visa issued in the name of Aldo Lutfi at the American
Consulate in Juarez, Mexico. The aforementioned nonquota visa was
issued to the respondent on the basis of his claimed birth in Brazil,
South America. The respondent last entered the United States at Miami,
Florida on February 22, 1958, at which time he had in his possession a
reentry permit issued in the name of Aldo Lutfi on March 16, 1956. The
record clearly reflects he is a native and citizen of Syria and his true
and correct name is Abdul Wahab Ghazal.
Deportation proceedings were instituted against the respondent on
June 9, 1960. Upon conclusion of the hearing held in deportation
proceedings, the special inquiry officer on July 19, 1960 entered an
order directing that the respondent be deported from the United States
in the manner provided by law on the charge set forth in the order to
show cause. During the deportation hearing held at Miami, Florida, in
July 1960, the respondent designated Brazil as the country to which he
wanted to be deported. A further recital of the remaining facts in this
case is not deemed necessary inasmuch as they have been fully and
adequately discussed by the special inquiry officer in his decisions of
July 19, 1960 and June 3, 1963.
The only question for us to resolve in this proceeding is whether the
respondent is eligible to have his immigration status adjusted under
section 245 of the Immigration and Nationality Act. The special inquiry
officer has concluded that he is ineligible to be accorded permanent
resident status under section 245 of the Act and his reasons therefor
are set forth in detail in his decision of June 3, 1963. There is no
legal basis for the special inquiry officer's conclusion that the
respondent is ineligible to be accorded permanent resident status under
section 245 of the Immigration and Nationality Act. Section 245 of the
Immigration and Nationality Act as amended provides that "the status of
an alien, other than an alien crewman, who was inspected and admitted or
paroled into the United States may be adjusted by the Attorney General,
in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if * * *.'
The facts in this case are readily distinguishable from those in
Matter of Da Silva, Int. Dec. No. 1268, decided by this Board on
February 21, 1963. In the cited case the alien had been lawfully
admitted to the United States for permanent residence and he thereafter
became deportable because of convictions of crimes involving moral
turpitude after entry. In matter of Da Silva, supra, we held that an
alien lawfully admitted for permanent residence, who subsequently became
deportable because of convictions of crimes involving moral turpitude,
is statutorily ineligible for adjustment of status under section 245 of
the Immigration and Nationality Act, as amended. In the instant case
the nonquota visa presented by the respondent at the time of his initial
admission to the United States was procured by fraud. It was issued in a
name other than his own and upon his falsely claiming that he was born
in Brazil. Hence, the respondent was never lawfully admitted to the
United States for permanent residence because the visa with which he
effected entry was procured by fraud and he was not entitled to the
nonquota status specified in his immigrant visa. As previously noted,
section 245 of the Act as amended provides that the status of any alien,
other than an alien crewman, who was inspected and admitted into the
United States may be adjusted by the Attorney General, * * *. The
respondent in the instant proceeding was inspected and admitted into the
United States in November 1955 and at the time of his last admission on
February 22, 1958. Hence, we conclude he is statutorily eligible to
have his immigrant status adjusted under section 245 of the Immigration
and Nationality Act.
Upon full consideration of all the evidence of record and counsel's
representations in oral argument, we have concluded to remand the case
to the special inquiry officer in order that he may reconsider or
consider anew the respondent's application for adjustment of status
under section 245 of the Act, Accordingly we will so order.
ORDER: It is ordered that the appeal be sustained.
It is further ordered that the case be remanded to the special
inquiry officer for further proceedings in accordance with the
provisions of the foregoing opinion.
A lawful permanent resident, upon return to the U.S. following an innocent, casual absence to Mexico for a few hours to visit relatives did not make an entry upon which to predicate a ground of deportation Rosenberg v. Fleuti, 374 U.S. 449 (1963) . (See also, Matter of Yoo, Int. Dec. No. 1305.)
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable as alien convicted of crime involving moral turpitude, theft.
Lodged: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable as alien who admits commission of crime involving moral
turpitude, theft.
The case comes forward pursuant to certification by the special
inquiry officer of his order dated June 28, 1963 terminating the
proceedings.
The record relates to a native and citizen of Mexico, 25 years old,
male, married, who was admitted to the United States for permanent
residence as a nonquota immigrant on June 25, 1958. Although the record
of conviction shows that the respondent was convicted on January 18,
1962, it was found that the respondent was in fact convicted on November
22, 1961 in the 34th Judicial District Court, El Paso, Texas, upon his
plea of guilty on the charge of theft of property of the value of $50
and over and received a suspended sentence for a period of three years.
Although the charge in the order to show cause was abandoned because of
the decision in Matter of L R , 7 I. & N. Dec. 318 (Attorney General
1957) the lodged charge based upon the admission of the commission of
the crime because of the plea of guilty was sustained. For the purposes
of this case, we shall consider the lodged charge as sustained and shall
pass on to a consideration of the primary issue raised by the
certification.
The respondent had the status of a resident alien in the United
States, having been admitted as a nonquota immigrant on June 25, 1958.
Following that admission he resided in the United States and has
continued to reside in this country until the present time. His wife is
a United States citizen and he has three children all of whom are United
States citizens. He has had the same employment in the United States
since his entry as an immigrant. Following the date of his admission as
an immigrant, the respondent has made brief visits to Mexico.
Subsequent to his plea of guilty the respondent has made visits of brief
duration not exceeding a few hours to visit relatives in Mexico,
returning thereafter to his home and family here in the United States.
Inasmuch as the respondent experienced no difficulty in entering the
United States upon the occasion of each return, it is assumed for the
purpose of this discussion that he presented the required document,
namely, a Form I-151 Alien Registration Receipt Card.
The Supreme Court in the recent case of Rosenberg v. Fleuti, 374 U.
S. 449, 10 L.ed.2d 1000 (June 17, 1963), considered the definition of
the term "entry' as set out in section 101(a)(13) of the Immigration and
Nationality Act in connection with the case of a resident alien who
returned to the United States after a brief visit in Mexico and who it
was contended was excludable as an alien afflicted with psychopathic
personality under section 212(a)(4) by reason of the fact that he was a
homosexual. As defined in section 101(a)(13) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(13), "the term "entry' means any
coming of an alien into the United States, from a foreign port or place
or from an outlying possession, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in the United States
shall not be regarded as making an entry into the United States for the
purposes of the immigration laws if the alien proves to the satisfaction
of the Attorney General that his departure to a foreign port or place or
to an outlying possession was not intended or reasonably to be expected
by him or his presence in a foreign port or place or in an outlying
possession was not voluntary; * * *'
The court reviewed the history of the judicial definition of the term
"entry' as expressed most restrictively in U.S. ex rel. Volpe v. Smith,
289 U.S. 422, and as relaxed by the holdings in Di Pasquale v. Karnuth,
158 F.2d 878 (New York) and Delgadillo v. Carmichael, 333 U.S. 338;
/1/ and referred to the House and Senate Committee Reports preceding
enactment of the bill containing the definition. /2/ The court quoted
the decisions in Di Pasquale v. Karnuth, and Delgadillo v. Carmichael,
supra in which it was recognized that the "interests at stake' for the
resident alien are "momentous' and that "the stakes are indeed high and
momentous for the alien who has acquired a residence here.' Combining
these statements with the more general observation appearing in
Delgadillo that "deportation can be the equivalent of banishment or
exile' it was held that the congressional protection of returning
resident aliens in section 101(a)(13) was not to be woodenly construed.
The court therefore concluded that it effectuates congressional purpose
to construe the intent exception to section 101( a)(13) as meaning an
intent to depart in a manner which can be regarded as meaningfully
interruptive of the alien's permanent residence. It enumerated the
major factors to whether such intent can be inferred as the length of
time the alien is absent; the purpose of visit, as for example to
accomplish some object which itself is contrary to some policy reflected
by the immigration laws; and whether the alien has to secure any travel
documents in order to make his trip. The court reached the conclusion
that an innocent, causual and brief excursion by a resident alien
outside this country's borders may not have been "intended' as a
departure disruptive of his resident alien status and therefore may not
subject him to the consequences of an "entry' into the country on his
return.
In the instant case, the respondent, a permanent resident alien, made
an innocent, casual and brief excursion to Mexico for a few hours. On
the occasion of each absence he was going to visit relatives in Mexico.
On its face, we cannot distinguish the present case from the holding in
Rosenberg v. Fleuti. /3/ We conclude that the respondent did not
"intend' to depart in the sense contemplated by section 101(a)( 13) and
the deportation order cannot stand. The order of the special inquiry
officer terminating the proceedings will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated June 28, 1963 terminating the proceedings be and the same is
hereby affirmed.
(1) Followed in Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947)
and Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948).
(2) H.R. No. 1365, 82nd Cong., 2d Sess. 32, 1952; S.R. No. 1137,
82nd Cong., 2d Sess. 4 (1952).
(3) 374 U.S. 449, 10 L.ed.2d 1000.
Absent an affirmative showing of lack of judicial jurisdiction, the order of the trial judge, Records Court, Michigan, entered March 19, 1962, granting respondent's motion for new trial, following conviction and sentence, and dismissing the cause nolle prosequi, which for all purposes under Michigan law set aside the conviction, is effective to remove the ground of respondent's deportability under section 241(a)( 11), 1952 Act, based on such conviction on October 15, 1959, in the same court, of addition to unlawful use of narcotic drugs.
CHARGE:
Order: Act of 1952 -- Section 241(a)(11) 8 U.S.C. 1251(a)(11) --
Convicted of violation of a law relating to the illicit possession of
narcotic drugs, to wit: unlawful use and addiction to unlawful use of
narcotic drugs.
Respondent, a native and national of Canada, 58 years old and
divorced, was convicted on October 15, 1959 in the Recorder's Court,
Detroit, Michigan of addiction to unlawful use of narcotic drugs. She
was a nurse at Doctors Hospital in Detroit and used her position to
convert the drugs to her own use. /1/
Subsequently the Service brought these deportation proceedings, which
the special inquiry officer originally terminated, distinguishing
between illicit possession of narcotics as specified in the order to
show cause and unlawful use of narcotics under the statutory provisions
in Michigan. The examining officer appealed, contending that the
conviction for unlawful use encompassed unlawful possession. We
sustained the position of the examining officer in our order of November
20, 1961, which directed deportation on the charge contained in the
order to show cause, citing Matter of H U . /2/
Respondent then commenced an action in the United States District
Court, Eastern District of Michigan against the District Director, which
was dismissed on March 21, 1962, on stipulation, because of respondent's
motion pending before this Board for reopening of the deportation
proceedings. We granted oral argument on that motion on February 28,
1962. Counsel for respondent did not appear for oral argument, but
submitted a supplementary petition in support of the petition for
rehearing.
The supplementary petition called our attention to an order dated
March 19, 1962 of the Recorder's Court which granted respondent's motion
for a new trial and dismissed the cause on motion of the Assistant
Prosecuting Attorney. Counsel for respondent contended, and continues
to contend, that such action in the trial court completely removed the
basis of the deportation proceedings.
We granted the motion for reopening and reconsideration. Following
the reopened hearing the special inquiry officer again terminated the
proceedings and certified the case to us for final decision, pursuant to
our order.
We now must determine whether the respondent is still deportable
under the provisions of section 241(a)(11) of the Immigration and
Nationality Act despite the trial court's removal of the conviction upon
which the order to show cause is solely based.
The special inquiry officer contends that there is a marked
procedural difference between the manner in which respondent's
conviction was set aside and the California procedure which the Attorney
General had under consideration in Matter of A F . /3/ He states that
the action of the trial judge here is a judicial act as opposed to
expungement in California, in which the court's action is ministerial,
and concludes that the present record of the Recorder's Court must be
given full faith and credit. /4/
Respondent filed her motion in the trial court more than two years
after conviction, and apparently after satisfactory completion of
probation. Except for alleging that respondent would not have pleaded
guilty, and the court would not have accepted such plea, if it had been
realized that upon conviction she would be liable to deportation, the
motion does not in any way challenge the proceedings in the state court.
No prejudicial error is alleged; no newly discovered evidence is
offered.
Whatever on this record the requirements of full faith and credit may
be, it is evident the action of the trial court may be disregarded, as
the Service urges, only if the court exceeded it power under state law,
or if its action, regardless of whether proper under state law, is
ineffective in the federal proceedings, because of a federal standard
based upon overriding national interest. It is also evident that if the
action of the trial court is given effect the deportation proceedings no
longer have any basis. /5/
Michigan statutory law provides that the court in which the trial of
any indictment shall be had may grant a new trial to the defendant for
any cause for which by law a new trial may be granted or when it shall
appear to the court that justice has not been done, and on such terms or
conditions as the court shall direct. /6/ Another statutory provision,
moderately limiting this authority forbids the granting of a new trial
where there has been only harmless error as to any matter of pleading or
procedure. /7/ There is no indication that any such factor is involved
here.
Respondent's motion for leave to file a delayed motion for a new
trial was directed toward the discretion of the trial court, which has
been held to be inherent in Michigan. /8/ The court record shows only
that the motion for new trial was heard and granted and that the cause
was dismissed on motion of the Assistant Prosecuting Attorney. The
record, does not set forth any basis on which the prosecution entered a
nolle prosequi. /9/
It might be argued that the action of the trial court here was
divisible, granting of the new trial being a judicial act and dismissal
of the proceedings on the prosecuting attorney's nolle prosequi
ministerial. A Michigan statute states, however, that the prosecution
must obtain leave of the court of jurisdiction before entering a nolle
prosequi. Such provision indicates the court had discretion. Thus the
dismissal would also be a judicial act. In any event, we are
principally concerned with the effect of the granting of the new trial
which, if we are to be bound thereby, in itself effectively removed the
conviction for the purposes of these proceedings. Proper granting of a
new trial generally vacates the judgment and places the defendant back
in the position occupied prior to trial. /10/ This is the rule in
Michigan. /11/
Respondent moved for a new trial partially to obtain an opportunity
to change her plea of guilty. /12/ The privilege of withdrawing a plea
of guilty after sentencing involves setting aside the judgment of the
court and is not favored. The Supreme Court of Michigan so ruled in
affirming a denial of a motion for leave to withdraw a plea of guilty
and for a new trial. The defendant had expected a lighter sentence than
the trial court imposed. The court endorsed the view of a California
court that, where the defendant knows his rights and the consequences of
his act of pleading guilty, the mere fact that he hoped, or believed, or
was led by counsel to believe that he would receive a shorter sentence
or milder punishment by pleading guilty than after trial and conviction,
does not warrant the trial judge's exercise of discretion in favor of
permitting the change of plea. /13/
The same court also affirmed denial of a motion for a new trial based
upon refusal of the trial court to allow withdrawal of a plea of guilty
before sentencing when, through the sentencing of a codefendant, the
defendant has reason to expect a heavier sentence than previously
anticipated. /14/ Michigan law, therefore, indicates that a new trial
will not ordinarily be granted when its purpose is to afford an
opportunity to change a plea of guilty because the resulting punishment
is greater than anticipated. If, therefore the trial judge granted a
new trial to respondent merely to enable her to avoid deportation, he
would apparently have acted contrary to the way in which he could
properly act under the law of his state in an issue confined to
punishment lawfully imposed by the court but substantially beyond the
defendant's expectation. /15/
Counsel for respondent relies mainly upon the power of a Michigan
trial court judge to act as the judge did here. As authority he cites
only Attorney General v. Recorder's Judge, also cited by the special
inquiry officer. /16/
The Service Representative questions the authority of the trial judge
under state law to remove the conviction, likening such action to an
expungement or pardon. He refers to People v. Fox. /17/ In Fox the
Michigan Supreme Court overruled the particular trial judge who tried
respondent. A sentence of life imprisonment for robbery had been partly
served when the trial court reduced the sentence. The Supreme Court
held that the trial court's jurisdiction had ended with pronouncement of
the sentence, and that to permit the power to reduce the sentence under
the circumstances would infringe on the pardoning power of the governor
and violate the jurisdiction of the parole board. That case did not
involve a new trial, however, and is not authority for any such
restriction on the power of the trial court when, as here, a new trial
has been granted.
The Service Representative also contends that deportation of
narcotics offenders is an area in which the Federal Government has the
predominant interest, that the trial court acted solely to circumvent
the federal statute, and that the court had no jurisdiction over the
matter for this purpose.
It is clear that Congress has attempted to circumscribe the power of
trial judges to affect deportation proceedings involving narcotic
violations. /18/ Counsel for respondent asserts that Michigan judges
would act properly and with restraint where a conflict with federal law
is indicated. Congress, however, has indicated unwillingness to accept
any judicial recommendations with respect to deportation of narcotic
offenders. /19/
Respondent's motion in the trial court, in addition to contending
that in view of the deportation proceedings the consequences of her plea
of guilty were more severe and far reaching than she or the court
realized, asserted that the court never had notice of the deportation
proceedings and had no opportunity to place in its files and record
within the 30-day statutory period following the court's sentence a
recommendation for or against her deportation. Due to the statutory
proscription such references in her motion for a new trial could not
have been given effect by the court. /20/
Moreover, for the same reason, a pardon would be ineffective against
respondent's deportation. The granting of a nolle prosequi after
verdict has been likened to a pardon. /21/ The prosecution's act of
granting a nolle prosequi in respondent's case, if granted only to
defeat her deportation would have something of the effect of a pardon,
although technically because of the intervening grant of a new trial the
nolle prosequi was not entered after judgment.
Congress in setting up the statutory rules covering deportation has
not specifically dealt with new trials, or other proceedings to reopen
or otherwise affect final judgments, the results of which could affect
deportability. Elsewhere in the statute Congress considered the effect
of the power of a court to correct, reopen, alter, modify or vacate its
judgments or decrees and did not infringe upon that power. /22/ That
provision, however, which relates to revocation of naturalization, arose
to overcome the effect of Bindczyck v. Finucane. /23/
The Supreme Court held in Bindczyck that section 338 of the
Nationality Act of 1940, the predecessor to section 340 of the
Immigration and Nationality Act, was the exclusive procedure to cancel
citizenship based upon evidence outside the record revealing fraudulent
or illegal procurement. The Court upheld a United States district
court's judgment declaring plaintiff to be a citizen of the United
States, thus overruling a Maryland court which had on motion of the
Government set aside its own order of naturalization on the ground it
was obtained by fraud.
Because of the special history of section 340(j) of the Immigration
and Nationality Act and the different situations encompassed by that
section and section 241(b) of the Act, Congress' silence on new trials
and similar proceedings in the latter provision permits no inference
that Congress did or did not intend to make such procedures ineffective
in proceedings under section 241(a)(11), along with pardons and judicial
recommendations against deportation. Congress, even when legislating
upon matters in which the federal interest is very high, rarely occupies
a field completely.
Although several cases have been decided both administratively and
judicially on the general proposition of the effect of further criminal
proceedings, other than strictly review proceedings, upon orders of
deportation which have been based upon the results of the prior
proceedings, all may be distinguished from the instant case on
substantial grounds.
In our order of May 3, 1962 reopening these proceedings we stated
that the procedure setting aside the conviction here might be
distinguishable from the procedure which the Attorney General had under
consideration in Matter of A F . /24/
The Attorney General specifically limited that holding to the effect
of state laws of the nature of the California statutes considered in his
opinion upon deportation proceedings brought under section 241(a)( 11).
He disapproved Matter of D , which also involved a narcotic conviction.
/25/ Later, however, he upheld a decision of this Board terminating
deportation proceedings in which a California conviction for a
nonnarcotic offense was expunged under the procedure authorized by
section 1203.4 of the State's Penal Code. /26/ It is clear therefore
that the rule in Matter of A F is to be narrowly applied.
We agree with the special inquiry officer and respondent's counsel
that there are substantial differences between expungement of a
conviction under statutory provisions like those in California and the
procedures followed in respondent's case. The latter were not based
upon special, defined statutory authority, peculiar to a small number of
jurisdictions. The trial judge and the prosecuting attorney exercised
powers which are recognized in Michigan as inherent in their positions,
and which have been so recognized in a number of jurisdictions.
Michigan statutes do not place much restriction on these powers.
The trial judge's granting of a new trial was clearly a judicial act,
performed in the exercise of his discretion. His dismissal of the cause
on the prosecuting attorney's nolle prosequi was probably a judicial act
under Michigan law. Even if ministerial, however, it would not appear
to impair the effect on the deportation proceedings of the granting of a
new trial.
Respondent's completion of her period of probation before the grant
of a new trial may have been a factor influencing the judge and
prosecuting attorney, but the action which they took could have been
taken at any time. Unlike the California procedure, absence of any
pending probationary period was not a necessary condition for the action
taken. Apparently respondent's conviction could not now be used for any
purpose in Michigan, whereas in California the conviction remains
available for certain purposes. Thus even though both expungement in
California and granting of a new trial coupled with dismissal of the
action remove the record of conviction, cases involving the California
procedure are not necessarily controlling here. We do not appear to
have in respondent's case a technical expungement which the Attorney
General found ineffective for deportation purposes in Matter of A F .
The special inquiry officer refers to two decisions of this Board
which have considered the Michigan procedure, both involving nonnarcotic
convictions, Matter of P and Matter of H . /27/ In Matter of H we
distinguished Matter of A F on the basis that the latter is confined to
narcotic cases. /28/ Matter of H thus has limited precedent value for
respondent's case, but does indicate the procedure of granting a new
trial may be effective in defeating deportation proceedings, where
Congress has not imposed, directly or indirectly, an overriding federal
standard.
The special inquiry officer believes that it is immaterial whether
the court acted solely to enable respondent to avoid deportation, citing
Matter of P and Matter of H . /29/ He notes, however, the somewhat
contrary effect of a later decision in which the Attorney General
pointed out, in a nonnarcotic case, that the court granted coram nobis
to correct a constitutional defect in the prior decision and not solely
to obtain an opportunity to recommend against deportation. /30/ The
Attorney General upheld the validity of such recommendation at the
retrial as made at "the time of first imposing judgment or passing
sentence.' /31/
The Attorney General was not squarely confronted with the question
whether a court's action taken solely to enable a delayed recommendation
against deportation is effective. In Matter of S , also a nonnarcotic
case, we specifically answered that question. /32/ The court vacated a
conviction, accepted a new plea and resentenced the defendant,
recommending for the first time against deportation. The court based
its action solely on its previous unawareness that the defendant was
subject to deportation, and its belief that this added penalty would
constitute "manifest injustice' under the New Jersey statute authorizing
its procedure. We held that under these circumstances the court's
recommendation was ineffective and the second conviction still supported
deportation.
Both of these decisions referred to U.S. ex rel. Piperkoff v.
Esperdy. /33/ The Court of Appeals for the Second Circuit there found
that the New York court granted coram nobis solely to repair an earlier
omission to recommend against deportation. The court concluded that
section 241(b) of the Immigration and Nationality Act establishes a
federal standard for determining what constitutes the first entry of
judgment or passing of sentence, which the trial court's action did not
meet.
Reading Matter of A F in the light of these three recent cases under
section 241(b) of the Immigration and Nationality Act presents a strong
argument that any judicial action to set aside a narcotic conviction
solely for the purpose of enabling avoidance of deportation would be
ineffective. To hold otherwise might permit a court to do by
indirection what it could not do directly. The law is far from clear
here on the federal question, however. Cases which concern the specific
statutory provisions for judicial recommendations against deportation
obviously differ from those, like respondent's, which can be brought
within the statute only by implication. We have pointed out some of the
more important distinguishing factors in respondent's case. A careful
reading of the cases reveals additional ones.
The Supreme Court in Pino v. Landon rejected the view of the Court of
Appeals that a federal standard attaches to the term "convicted' for the
purposes of section 241(a)(4) of the Immigration and Nationality Act.
/34/
The Attorney General pointed out in Matter of G that the
Massachusetts procedure considered in Pino v. Landon revoked the
sentence but did not disturb the finding of guilt, while the California
procedure which he considered in Matter of A F , and again in Matter of
G , went further by setting aside the plea or finding of guilt. The
Michigan procedure goes still further since the conviction is set aside
for all purposes so far as the State is concerned, whereas in California
the record of the prior conviction may be used for limited purposes.
In Giova v. Rosenberg the Court of Appeals for the 9th Circuit ruled
that it had no jurisdiction to review an order of this Board denying a
motion to reopen deportation proceedings. /35/ The court stated that it
was tempted to discuss the merits of the case, but could not reach the
rationale behind Pino v. Nichols, page 243, or the effect of the
Attorney General's holding in Matter of A F , or this Board's decisions
in Matter of B and Matter of G , because the Court could not give an
advisory opinion. /36/ Such statement, however, indicates the court's
probable nonconcurrence with at least some of the reasoning behind these
holdings.
We are not at all sure that the Attorney General would extend his
ruling in Matter of A F to cover a situation like respondent's even
though her case also involves a narcotics violation. Thus it is
questionable whether respondent's case falls within the ambit of Matter
of A F and Piperkoff, as the Service Representative urges, even if, as
he assumes, the Recorder's Court acted solely to defeat respondent's
deportation. /37/
Moreover, we are unable to follow the Service Representative in this
assumption. Respondent's counsel has pointed out that considerations
other than respondent's liability to deportation may have moved the
court and the prosecution. No reason is given for the portion of the
order either granting a new trial or dismissing the case. There is no
indication that the trial court based its action even in part upon
respondent's motion. However desirable we might consider a detailed
record setting forth the reasons for the court's action, a judge in
Michigan does not appear to be under any compulsion to provide one.
/38/
With due regard for the fact that there is a strong federal interest
here, and that the only evidence of the reasons for the court's action
points to the impact of the federal statute, we are unable to rule that
the Michigan court acted without sufficient authority. There is nothing
to indicate that the court exceeded its authority under state law, which
bestows broad discretionary powers. It is not clear that there is a
federal standard applicable here which requires that conflicting state
action be disregarded. Insofar as these matters are in doubt the doubts
should be resolved in favor of the respondent. /39/
We consider that there should be a clear indication that a particular
application of a trial court's authority is ineffective before we
disregard it. Our reasoning on this point is similar to that which we
applied in Matter of H in disposing of the Service's contention that no
effect should be given to the second sentence of the court and
consistent with the position we have generally taken in this type of
case. /40/ We shall approve the decision of the special inquiry
officer.
ORDER: It is ordered that the decision of the special inquiry
officer terminating the deportation proceedings be and hereby is
approved.
(1) C.L. '48 sec. 335.154, Mich. Stat. Ann. sec. 18.1124.
(2) 7 I. & N. Dec. 533.
(3) 8 I. & N. Dec. 429. The Attorney General held that, in view of
the clear national policy evidenced by the history of paragraph (11)
subsection (a) of section 241 of the Immigration and Nationality Act and
subsection (b) of that section, as amended, it is immaterial that
pursuant to a state statute such as section 1203.4 of the California
Penal Code, as amended, or section 1772 of the Welfare and Institutions
Code of that State, the verdict of guilty has been set aside and the
criminal charge dismissed.
At the time the Attorney General's opinion, Arellano-Flores'
conviction had not in fact been expunged. Subsequently his probation
was terminated and his conviction expunged. We denied a motion to
reopen. A declaratory judgment action to review the deportation
proceedings followed. The District Court, Southern District of
California affirmed the Attorney General in an unreported decision dated
12/15/60. Arellano-Flores did not appeal, but sought to relitigate the
same issues on writ of habeas corpus, which was denied by the same
District Court. That decision has been affirmed. Arellano-Flores v.
Rosenberg, 310 F.2d 118 (C.A. 9, 11/9/62). The Court of Appeals did not
reach the merits of the petitioner's contention that the deportation
proceedings had been voided by the state proceedings removing his
conviction.
(4) 28 U.S.C. 1738.
(5) Without conceding that judicial rules of evidence are applicable
in administrative deportation proceedings we note that the certified
copy of the court record and of the moving papers may not comply with
rule 44 of the Federal Rules of Civil Procedure. Chung Young Chew v.
Boyd, 309 F.2d 857 (C.A. 9, 10/30/62). The papers lack a certificate
that the attesting officer, the clerk of the court, has legal custody of
the original record, unless the Judge's certificate, which identifies
the attesting officer as the clerk of the court, the court as a court of
record and the seal as the seal of the court, is deemed substantial
compliance with the custody provision.
We need not rule on this point, however. The copy of the court
record was received without objection by the Service. The Service
itself submitted the copy of the moving papers. Counsel for respondent
declined to do so and in fact objected to admission of the moving papers
but only as irrelevant. Under these circumstances any question of
admissibility of the records on grounds of competence has been waived.
Counsel did not renew this objection on appeal. In any event,
however, we consider the copy of the motion relevant for whatever light
it might throw on the basis for the court's action.
(6) C.L. '48 sec. 770.1, Mich. Stat. Ann. sec. 28.1098. Statutory
provisions pertaining to indictments apply equally for informations. C.
L. '48 sec. 767.2, Mich. Stat. Ann. sec. 28.942.
(7) C.L. '48 sec. 769.26, Mich. Stat. Ann. sec. 28.1096.
(8) The time for filing such motion as a matter of right had long
expired. C.L. '48, sec. 770.2, Mich. Stat. Ann. sec. 28.1099. Attorney
General v. Recorder's Judge, 341 Mich. 461, 67 N.W.2d 708 (1954);
People v. Hurwich, 259 Mich. 361, 243 N.W. 230 (1932); People v. Nick,
360 Mich. 219, 103 N.W.2d 435 (1960); People v. Andrews, 360 Mich.
572, 104 N.W.2d 199 (1960).
(9) A Michigan statute provides that the prosecution shall set forth
the basis for entering a nolle prosequi. C.L. '48, sec. 767.29, Mich.
Stat. Ann. sec. 28.969. Statutes to the same effect have been
interpreted in Colorado as mandatory and in Texas as directory. Van
Gundy v. O'Kane, 142 Colo. 114, 351 P.2d 282 (1960); Ex parte Rusk, 128
Tex.Crim. 135, 79 S.W.2d 865 (1935); Ex parte Kinsey, 152 Tex. Crim.
425, 214 S.W.2d 628 (reh. den. 1948). No interpretation of this
provision by the Michigan courts has been found.
Counsel for respondent said at oral argument that the Michigan
prosecutor can make a motion to dismiss any proceedings pending before a
court and upon that motion in the proceedings are dismissed. He cited
no authority however.
In passing we might mention that there is some evidence that the
prosecution in Michigan has broad power to nol. pros. In an early case
the Michigan Supreme Court adopted the procedure, highly unusual at the
time, of remanding the case to a circuit court with direction that a
nolle prosequi be entered. Such judicial assumption of the
prosecution's power indicates that Michigan courts would be likely to
take a liberal view of the exercise of that power by the prosecution.
People v. Gaige, 23 Mich. 93 (1871).
(10) Matter of G , 1 I. & N. Dec. 96; Matter of H , Int. Dec. No.
1159 (7/26/61); 24 C.J.S. Crim. Law sec. 1426.
Counsel for the Service points out that here there was in fact no new
trial and no new plea. These of course were obviated by the dismissal
of the proceedings. If the prosecution or the court had acted beyond
its powers in dismissing the action we would be faced with the question
whether the granting of the new trial and the dismissal were divisible
or interdependent. We have not found that either exceeded its authority
in this respect, however.
(11) People v. Huffman, 315 Mich. 134, 23 N.W.2d 236 (1946).
(12) Respondent's allegations in support of withdrawal of her plea of
guilty are the only ones in her motion upon which the court could have
effectively acted.
(13) People v. Goldman, 245 Mich. 578, 223 N.W. 124 (1929).
(14) People v. Case, 340 Mich. 526, 65 N.W.2d 803 (1954).
(15) A trial court has no obligation, moreover, in accepting a plea
of guilty to warn a defendant about possible deportation. U.S. ex rel.
Durante v. Holton, 228 F.2d 827 (C.A. 7), reh. den., cert. den. 351 U.
S. 763 (1956).
(16) Supra 8.
(17) 312 Mich. 577, 20 N.W.2d 732 (1945).
(18) Matter of A F , supra 3.
(19) Sec. 301(c) Act of 7/18/56 amending sec. 241(b) of the
Immigration and Nationality Act, 70 Stat. 575.
(20) Sec. 241(b) of the Immigration and Nationality Act, as amended.
(21) State of Louisiana ex rel. Butler v. Moise, 48 La.Ann. 109
(1895).
(22) Section 340(j) of the Immigration and Nationality Act, 8 U.S.C.
1451(j).
(23) 342 U.S. 76 (1951).
(24) Supra 3.
(25) 7 I. & N. Dec. 670.
(26) Matter of G , Int. Dec. No. 1119 (1/17/61).
(27) 3 I. & N. Dec. 187 and supra 10.
(28) Matter of G , supra 26.
(29) Supra 27 and 10.
(30) Matter of P , Int. Dec. No. 1142 (5/24/61).
(31) Section 241(b) of the Immigration and Nationality Act.
(32) Int. Dec. No. 1206 (4/19/62).
(33) 267 F.2d 72 (C.A. 2, 1959).
(34) 349 U.S. 901 (1955). The case involved the finality of a
conviction under unique procedure. Cf. Hernandez-Valensuela v.
Rosenberg, 304 F.2d 639 (C.A. 9, 1962).
(35) 308 F.2d 347 (C.A. 9. 1962).
(36) Matter of B , 7 I. & N. Dec. 166 and Matter of G , 5 I. & N.
Dec. 129 concerned respectively an amnesty and extinction of a record of
conviction under Italian law. Pino v. Nichols, 215 F.2d 237 (1954),
reversed per curiam sub nom. Pino v. Landon, supra /34/ , states at page
243 that the meaning of the word "convicted' with respect to the
deportability of aliens is a federal question to be determined in the
light of the policy behind section 241(a)(4) of the Immigration and
Nationality Act.
(37) In Matter of H , supra 10, we distinguish Piperkoff from a
situation involving a new trial. As we have noted, however, Matter of H
was not concerned with a narcotics violation.
(38) Rule 47 of the Michigan Court rules calls for the filing of a
concise statement of the judge's reasons for denying a motion for a new
trial, but makes no such provision if the motion is granted. 24 Mich.
S.B.J. 47.
(39) Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).
(40) Cf. Matter of G , supra 26.
THE IMMIGRATION AND NATURALIZATION SERVICE MOVES THE BOARD OF
IMMIGRATION APPEALS FOR RECONSIDERATION of its order of January 15,
1963, approving the decision of the Special Inquiry Officer.
Respondent is a native and national of Canada, a divorced female, age
58. On October 15, 1959, in the Recorder's Court of the City of
Detroit, Michigan, she plead guilty to unlawful use of narcotic drugs.
She was sentenced to two years imprisonment and placed on probation. On
November 20, 1961, the Board found her deportable under section 241(
a)(11) by reason of this conviction, and ordered deportation.
On February 16, 1962, counsel for the respondent filed in the
Recorder's Court for the City of Detroit, Michigan, a "Motion for a New
Trial, Notice of Motion and Affidavit in Support of Motion.' The motion
recited as the reasons for requesting a new trial that the conviction
was more far-reaching in its consequence than realized at the time,
inasmuch as it was not known that deportation proceedings would be
instigated based upon the conviction; that the court was not informed
of the deportation proceedings; that the court had never had an
opportunity to make a recommendation either for or against the
deportation of the defendant from the United States within the
thirty-day period following the sentence; and, that the defendant and
the court did not anticipate that the plea and conviction would be as
severe in effect in causing the defendant to be separated from and
deprived of her family and home in this country.
The affidavit in support of the motion also cited as the sole reason
for the motion, that the deponent was being penalized in excess of the
original sentence contemplated by the court, in that a warrant for
deportation had issued requiring her deportation, and that if she had
known of the contemplated action by the Immigration Service she would
not have pleaded guilty and the court would have stated that the
sentence was not to be the basis of a deportation proceeding. A
certified copy of the order of the Recorder's Court states, "On the 19th
day of March 1962. Motion for new trial heard and granted on motion of
Assistant Prosecuting Attorney William Flanigan, the court orders said
cause be and the same hereby dismissed.' Insofar as shown by the record,
this reflects the entire proceeding in the Recorder's Court.
Following rehearing and introduction of the above evidence in the
instant deportation case, the proceedings were terminated by the Special
Inquiry Officer on the ground that the action of the Recorder's Court
must be given full faith and credit, and the criminal conviction no
longer exists as a basis for deportation. The Board has sustained this
ruling.
It should be pointed out initially that the motion for new trial
erroneously asserted a capability in the court to make a recommendation
against deportation. Section 241(b) expressly is inapplicable in the
case of any alien charged with being deportable under subsection 241(
a)(11). This provision was added by section 301(c) of the Act of July
18, 1956. It reflects the concern of the Congress over court decisions
/1/ holding that a pardon or judicial recommendation against deportation
relieved a narcotic offender of deportability. Since July 18, 1956,
this is not the case.
In this connection also, as noted by the Attorney General in Matter
of A F , 8 I. & N. 429, 445, the history of section 241(a)(11) is
convicting that Congress did not intend that aliens convicted of
narcotic violations should escape deportation.
Traffic in narcotics has been a continuing and serious federal
concern. Congress has progressively strengthened the deportation
laws dealing with aliens involved in such traffic. Thus, . . .
in 1940 the deportation statute was amended to eliminate the
requirement that in addition to a conviction there must be a
sentence. At the same time the statute was extended to
convictions for violation of State as well as Federal statutes.
And, since the 1956 amendment an alien may no longer escape
deportability by proffering a pardon.
Significantly, the Act of July 18, 1956, increased the severity of
the statute as to narcotic offenders by making the deportation
provisions applicable to those convicted for possessing narcotics as
well as conspiracy to violate the narcotic laws.
There exists no provision for expungement under Michigan law, and
even if such provision did exist, under the rule in Matter of
Arellano-Flores, 8 I. & N. 429 (262 F.2d 667) such expungement would not
relieve of deportability. In this connection the Attorney General has
said:
In the face of this clear national policy, I do not believe
that the term "convicted' may be regarded as flexible enough to
permit an alien to take advantage of a technical "expungement'
which is the product of a state procedure wherein the merits of
the conviction and its validity have no place. I believe that
Congress intended the inquiry to stop at the point at which it is
ascertained that there has been a conviction in the normal sense
in which the term is used in Federal law. . . . Of course, if the
conviction is still subject to reversal by the usual processes of
appellate scrutiny, the statute is not satisfied. But beyond this
I do not think the inquiry can extend, consonant with the
congressional purpose and policy. . . . Moreover, to follow the
Board's view would make the deportability of the alien depend upon
the vagaries of state law. . . .' (Id. at 446)
As noted in the oral argument before the Board, and commented on in
the decision of January 15, 1963, no Michigan authority has been
specified as authorizing the procedure in this case, after a conviction
and after the sentence had been served. While the moving papers are
designated "Motion for a New Trial' the record of the proceedings in the
Recorder's Court do not establish that there was in fact a new plea or
trial. The order reflects only that the motion for new trial was heard
and granted, and that on motion of the prosecuting attorney the cause
was dismissed. On the present record there was no rehearing on the
merits nor does it appear that the alien was even present.
However, assuming arguendo that the procedure before the Recorder's
Court was in the nature of a coram nobis proceeding, and that there was
in effect something in the nature of a new trial or proceeding,
nevertheless it would be without force and effect as to this proceeding
it the sole basis for vacating the judgment was to defeat a Federal
mandate as to deportability. Piperkoff v. Esperdy, C.A. 2, 267 F.2d 72.
/2/ Here, the moving papers in the Recorder's Court recited one cause,
and one cause only, for the action, namely, to relieve of deportability.
Despite the fact that this was specifically made an issue in the course
of oral argument before the Board, counsel alleged no other or different
ground for the action taken, nor does the record leave any serious room
for speculation. /3/
The decision has chosen to treat the Recorder's Court proceeding as
the granting of a new trial and the entry of a nolle prosequi by the
prosecutor. As noted above, there is a serious question as to the
validity or propriety of this action under the Michigan law, or of the
jurisdiction of the court to take the action, particularly in connection
with the issue of a punishment lawfully imposed by the court but
substantially beyond the defendant's expectation (dec. p. 8, and cases
cited). If the court acted beyond its jurisdiction, then clearly its
action need not be given full faith and credit. (Matter of H , Int.
Dec. No. 1170.)
However; again assuming the action valid in the State of Michigan as
a nolle prosequi, and completely effective within that state as wiping
out the conviction, nevertheless it cannot wipe out the conviction for
immigration purposes if a state judicial process was resorted to solely
to relieve of deportability under the Federal statute. It is to be
noted that in Piperkoff, supra, the court assumed for purposes of the
case that under the law of New York it was proper for the court to
vacate the earlier judgment as it did. That did not affect the outcome
of the deportation proceedings.
A similar question was presented in Matter of S , Int. Dec. No.
1206. There a county court acted under a New Jersey statute reading, ".
. . to correct manifest injustice, the court, after sentence, may set
aside the judgment of conviction and prevent the defendant to withdraw
his plea.' The court permitted the vacating and setting aside of the
plea of guilty and sentence, for a conviction forming the basis of the
deportation proceeding.
The Board pointed out:
The difficulty arises not with the jurisdiction of the state
court to grant the motion to vacate but the attempt of the state
court to invade an area to which Congress has seen fit to erect or
impose a federal standard. . . . The "manifest injustice'
referred to . . . was . . . the specifically stated reason that
the court was not aware (at the time of first sentencing that the
defendant was subject to deportation as an alien, did not consider
that the defendant was faced with additional penalty of
deportation and that it would be manifestly unjust to subject the
defendant to the additional penalty. . . .
Pointing to Matter of Plaut, Int. Dec. No. 1142, supra, the Board
then held that the recommendation against deportation made at the time
of re-sentencing, was not effective to relieve of deportability within
the federal mandate set forth in section 241(b) of the Immigration and
Nationality Act, since the vacating of the first judgment was solely to
defeat the congressional mandate.
The analogy is obvious. No basis exists for applying a more
ameliorative rule to a narcotics conviction than to the ordinary
criminal conviction. On the contrary, no deportation provision in the
Act evidences a clearer restrictive congressional intent than section
241(a)(11). /4/ The successive amendments of the narcotics provisions
of the statute to make them more stringent, reflect the constant and
increasing concern of the Congress in this area. In harring narcotic
offenders from section 241(b) relief the Congress has said firmly and
unequivocally that an alien in the category of this alien, shall be
deported. The purpose and intent of the statute, and the desire of the
Congress, cannot be frustrated by an action of a state court aimed
purely and solely at defeating federal mandate.
It is no solution to say that the Congress in the statute barred
pardons or judicial recommendations, but did not deal with the area of
new trials or a possible nolle prosequi. The Congress obviously could
not foresee every device to which resort might be had, to avoid the
effect of the statute. By the same token a state court proceeding
attacking the prior conviction on valid grounds having nothing to do
with immigration, or only incidental thereto, obviously must be given
full faith and credit. But this is not the situation where the
overriding national interest has been expressed in a federal statute and
the action of the state court is for the sole purpose of defeating that
federal statute.
In summary, by express language of the statute, a pardon would not be
effective to defeat deportation. Similarly, a recommendation against
deportation by the sentencing court would have no effect. Under
Arellano-Flores, supra, expungement under lawful state process would be
without effect. Under Piperkoff, a new trial granted solely for the
purpose of relieving of deportability under section 241(a)(4) by
vacating judgment and imposing a new sentence would be without effect.
No logical basis for distinction as to a narcotic conviction presents
itself. Under Matter of S , Int. Dec. No. 1206, a setting aside of
conviction under lawful state process, if done for the sole purpose of
defeating deportation, even as to a nonnarcotic offender, would be
without effect. Again, no basis for distinction as to the narcotic
offender exists in view of the firmly expressed intent of the Congress
that the narcotic offender be treated even more stringently than the
ordinary criminal. In the light of these rulings and even assuming the
state court to have jurisdiction to take the action it did, the one
additional step required here occasions no difficulty. It is submitted
that where motion for new trial is granted after conviction and
sentence, and the case then nolle prossed, that action also would have
no effect on the deportation proceedings if done solely to defeat these
deportation proceedings.
Motion is made that the Board reconsider and withdraw its order of
January 15, 1963, approving the decision of the Special Inquiry Officer,
and that the alien be found deportable as charged.
(1) De Luca v. O'Rourke, 213 F.2d 759, C.A. 8, 1954; Ex parte
Robles-Rubio, 119 F.Supp. 610 (N.D. Calif., 1954).
(2) Cf. Matter of Plaut, Int. Dec. No. 1142, where in addition to
seeking the writ because the conviction could result in deportation, the
respondent also indicated an abuse of due process in that he had not
been represented by counsel and did not understand the charges against
him at the time of first conviction -- and where the Attorney General
ruled the action of the court in setting aside the conviction must be
recognized since it might have rested on some basis other than relieving
deportability.
(3) The Board so found on almost identical facts in Matter of S ,
Int. Dec. No. 1206 and Matter of H , Int. Dec. No. 1170.
(4) H. Rep. 2546, 84th Congress, 2nd Session.
The Service moves for reconsideration of our order of January 15,
1963, which affirmed the special inquiry officer's order that the
deportation proceedings be terminated. We adhere to our previous
decision.
The Service motion, as well as our decision of January 15, 1963, sets
forth the facts. We shall not restate them.
The Service continues to assume that the trial judge in granting
respondent's motion for a new trial (and probably also in granting the
prosecuting attorney's motion for dismissal) acted solely to defeat
respondent's deportation. Since the Service has submitted no evidence
which shows clearly the basis for the judge's action, this assumption is
essential to its argument.
As we pointed out in our prior decision, even though respondent's
motion for a new trial appears to be directed only against the
deportation proceedings, we cannot assume, with the Service, that the
court acted solely to enable respondent to avoid deportation. There is
no inescapable inference that the court considered only what appears in
respondent's motion. Thus the Service has failed to meet its burden of
proof at the initial point in its contentions. The motion, as well as
the case against respondent, really fails here. Moreover, the Service
motion, in essence, merely reasserts the argument which the Service has
previously made in the case. /1/ On either basis we might summarily
deny the motion. We go on to answer the Service's objections, however,
because of the importance of the issues here.
We acknowledged in our prior decision that, assuming the trial judge
acted solely to defeat deportation, the Service's argument that a
federal standard prevails here has a certain force. We still found that
argument insufficient as a basis for respondent's deportation. The
argument has gained no additional force in its restatement. In fact it
has suffered. Subsequent to its formulation, the Court of Appeals for
the Third Circuit overruled one of our decisions on which the Service
relies.
The law does not establish that an overall federal standard would
nullify the trial court's action here if that action were taken solely
to defeat deportation. Of course there is a limited "federal standard'
in deportation cases which rest upon convictions in state courts. The
Court of Appeals for the Second Circuit has so recognized for an
application of section 241(b) of the Immigration and Nationality Act in
U.S. ex. rel. Piperkoff v. Esperdy. /2/ The Attorney General so
recognized for certain narcotic cases in Matter of Arellano-Flores. /3/
We see no grounds for extending the standard found by the Attorney
General to the situation presented by respondent's case.
We have at least twice rejected quite similar arguments, vigorously
advanced by the Service, advocating holding ineffective a state court's
action which otherwise would relieve of deportability. /4/
The concluding reasoning urged by the Service motion suggests that
under Arellano-Flores expungement under lawful state process would be
without effect, that under Piperkoff a new trial granted solely for the
purpose of relieving of deportability under section 241(a)(4) by
vacating judgment and imposing a new sentence would be without effect,
and that under Matter of S a setting aside of the conviction under
lawful state process, if done for the sole purpose of defeating
deportation, would be without effect. /5/ The Service then suggests
that the one additional step required here occasions no difficulty --
granting of a motion for new trial after conviction and sentence, with
the case then nolle prossed, also should have no effect on deportation
proceedings if done solely to defeat those proceedings.
Unfortunately for the foregoing reasoning, the grounds set forth in
our decision in Matter of S have been judicially overruled. /6/ Thus
the Service's argument breaks down at a crucial point. Even before the
Court of Appeals reversed Matter of S , however, we were unwilling to
take the step from our reasoning in that case to a similar action in
respondent's case. Our order of January 15, 1963 distinguished
Piperkoff and Matter of S , as well as Matter of Arellano-Flores.
The Service says Piperkoff and Matter of S should not be
distinguished on the grounds that they concerned nonnarcotic offenses.
In those cases, however, the claims of nondeportability were based upon
judicial recommendations against deportation. In view of the amendment
of section 241(b) that issue cannot be present in a narcotics case. /7/
The Service thus tries to reason analogously from situations which could
not themselves be reproduced in a case like that of respondent. We
think the gap between the cases is too great to be bridged by analogy,
although the Service, in its preoccupation with Congress' restrictive
measures against alien narcotics offenders, bridges it easily.
The Service in effect says judicial and administrative decisions have
disregarded certain procedures of the courts whose sole purpose was to
enable a recommendation against deportation. Congress has made the
deportation provisions for narcotics violators more stringent than for
other criminal aliens. Therefore in amending section 241(b) of the Act
to make it inapplicable to persons deportable under section 241(a)( 11),
Congress intended any judicial process, even though otherwise a valid
exercise of the court's authority, to be without effect, if designed
solely to prevent deportation of an alien convicted of a narcotics
violation.
This conclusion does not necessarily follow, however. It overlooks
the effect of any judicial authority in areas which Congress has not
specifically restricted. It also fails to appreciate that a federal
standard for the term "conviction' in deportation cases has been found
only to a very limited extent. /8/
Our prior decision pointed out that Congress has limited to pardons
and judicial recommendations against deportation its prohibition against
measures preventing deportation of alien narcotics violators. The
Service says this approach is no help. We quite agree. The statute
does not give any specific aid here. The statutory language should not
be readily extended, however. We cannot assume that Congress intended
that any procedure lying ordinarily within the power of the courts,
which a court deems warranted in a particular case, should be nullified
if the court's action obstructs the deportion provisions of the statute
and is designed solely for that purpose. Statutory deportation
provisions should be construed strictly against the Government.
Moreover, a court has reversed an attempt by us to disregard judicial
action in a case squarely within section 241(b). /9/
In addition to arguing that there is a controlling federal standard
here, the Service again questions the authority of the trial court to
grant a new trial and then to dismiss the proceedings on the prosecuting
attorney's motion. The motion states that no Michigan authority has
been specified as authorizing the procedure in this case, after a
conviction and after the sentence had been served. It notes that we
commented in our order of January 15, 1963 on this fact, which the
Service had brought out at oral argument.
We think the Service's failure to specify any authority which
indicates the court exceeded its jurisdiction is more significant. We
made a diligent search of Michigan authorities and discovered no
indication that the trial judge lacked authority either to grant the
motion for new trial or, on motion of the prosecuting attorney, to
dismiss the proceedings without holding a new trial. In fact our review
of Michigan law indicates that the trial judge here probably acted
within his authority. /10/ In any event, the court's action may not be
held ineffective merely because its authority to so act might be
questionable. Lack of jurisdiction must be affirmatively shown.
Therefore, the motion also fails because of the Service's failure to
show that the trial court exceeded its authority.
The further consideration which we have given to this matter in
response to the Service motion for reconsideration leads us to deny that
motion insofar as it seeks reversal of our order of January 15, 1963 and
entry of an order of deportation.
ORDER: It is ordered that the motion for reconsideration and
withdrawal of our order of January 15, 1963, which approved the decision
of the special inquiry officer terminating these proceedings, and for
entry of an order of deportation be and hereby is denied.
It is further ordered that these proceedings be terminated in
accordance with the order of the special inquiry officer, dated July 9,
1962, approved by our order of January 15, 1963.
(1) The Service cites only two judicial decisions which we did not
consider in our prior decision. Those decisions form part of the
background for the amendment to section 241(b), Immigration and
Nationality Act. Respondent's case does not specifically concern
section 241(b), however. That section is useful here only for
discussion purposes -- to point out limitations and distinctions --
especially in considering whether the amendment thereto aids in creating
a controlling federal standard here.
(2) 267 F.2d 72 (C.A. 2, 1959), cited by the Service.
(3) 8 I. & N. Dec. 429.
(4) Matter of G , Int. Dec. No. 1119, approved by the Attorney
General; Matter of H , Int. Dec. No. 1159.
(5) Matter of Arellano-Flores, supra /3/ ; U.S. ex. rel. Piperkoff
v. Esperdy, supra /2/ ; Matter of S , Int. Dec. No. 1206.
The Service notes Arellano-Flores v. Hoy, 262 F.2d 667 (C.A. 9, 1958)
cert. den. 362 U.S. 921, as a parallel citation for Matter of
Arellano-Flores. That case, however, occurred prior to the expungement
of conviction which led to the Attorney General's decision in
Arellano-Flores. The Attorney General's opinion in Matter of G. ,
supra /4/ demonstrated the inapplicability of Arellano-Flores v. Hoy to
his decision in Matter of Arellano-Flores. Our order of January 15,
1963 gives the subsequent judicial history of the Arellano-Flores case.
We noted also in our prior decision that in Giova v. Rosenberg, 308 F.
2d 347 (C.A. 9, 1962) the court indicates that it questions the
soundness of Matter of Arellano-Flores.
The Service refers to Matter of H , Int. Dec. No. 1170, along with
Matter of S , as an instance in which we have found that the court acted
to defeat deportation. In Matter of H , we did mention that it was
difficult to conclude from the record that the conviction was not
vacated because it made the respondent liable to deportation. Our
decision, however, turned upon our conclusion that the justice court did
not have authority under its own state law to vacate the judgment of
conviction. Moreover, although we reversed the special inquiry officer,
we approved his opinion that there was no controlling federal standard
and that Piperkoff was inapplicable.
(6) Sawkow v. Immigration and Naturalization Service, 314 F.2d 34
(C.A. 3, 1963). This case is a further indication that the principle in
Piperkoff has restricted application.
(7) The motion notes in its opening discussion that section 241(b) is
inapplicable here.
(8) Discussing the Government's contention that, if a judgment of
conviction is vacated for the purpose of avoiding deportation, a
subsequent recommendation against deportation is ineffective, the court
in Sawkow says, "This argument misses the mark, for no contention is
made that the state court either exceeded its jurisdiction or abused its
discretion in vacating the plea of non vult together with the judgment
of conviction, and subsequently dismissing the indictment. Thus, the
action of the state court is concededly valid. That being so, the
original judgment is as much a nullity as if the grand jury had never
returned an indictment.' Supra /6/ at 37.
(9) Sawkow v. Immigration and Naturalization Service, supra. /6/
(10) Compare People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959).
The Supreme Court of Michigan reversed an order denying a new trial.
The appellant had been originally sentenced on a plea of guilty to three
years' probation. Before the probationary period expired appellant was
convicted of another offense in New York. (The terms of the Michigan
probation provided for appellant to leave Michigan and to reside with
his father in New York.) Almost ten years thereafter appellant moved for
a new trial in the Michigan proceeding with leave to withdraw his plea
of guilty. Appellant was then still serving his New York sentence.
Although pointing out that Michigan courts do not look with favor upon
long-delayed motions for new trials, the court said that under Michigan
law there is no final time limitation upon the power of the trial court
to grant a motion for new trial -- such motions being within the
inherent power of the court where leave to file the motion is first
obtained. The court cited People v. Hurwich, 259 Mich. 361, 243 N.W.
230 (1932), which we cited in our order of January 15, 1963, and People
v. Burnstein, 261 Mich. 534, 246 N.W. 217 (1933).
Urgent need within the contemplation of section 203(a)(1),
Immigration and Nationality Act, does not exist when the beneficiary's
services as a cantor, to be performed only during Sunday and holy-day
ceremonies, are needed by petitioner church on less than a full-time
basis and the beneficiary, in order to sustain himself and his family
will be required to engage in additional unrelated work.
The petitioner is a church located in Perth Amboy, New Jersey, with a
parish consisting of 420 families. The services of the beneficiary are
sought as a precantor during Sunday and holy day ceremonies.
The beneficiary is a 34-year-old native and citizen of Greece, who is
married and has three children. He has the equivalent of a high school
education. The sole document presented in support of his qualifications
is a priest's certificate stating that the beneficiary had served as a
precantor for St. Demetrios Church in Tripolis, Greece, for six years.
During this period, from 1954 to 1960, he was also employed as a leather
worker. In 1960, the beneficiary immigrated to Canada where he was
employed in restaurants, cleaning establishments and leather shops. His
passport reflects his occupation as a tanner.
The petitioner originally stated that one cantor is presently
employed on a part-time voluntary basis, receives a percentage of the
ceremony fees and tips, and is employed full-time in another field of
endeavor. The petitioner stated that this individual was elderly, in
poor health, and that the services of the beneficiary were desired to
replace him; that it was impossible to find cantors in the United
States; that the beneficiary's wages would be determined by the Board
of Trustees and would probably be between $100 and $200 a month, and
that the beneficiary would have to seek other employment to supplement
these earnings in order to support his family adequately.
On September 12, 1962, the District Director denied the petition on
the ground that it had not been established that the beneficiary's
services were urgently needed in the United States. The petitioner was
informed on that date that the case had been certified to the Regional
Commissioner. On October 31, 1962, the Regional Commissioner entered an
order approving the decision of the District Director denying the
petition. Thereafter, on January 22, 1963, the petitioner was informed
that the case was being certified for review to the Deputy Associate
Commissioner, Travel Control, Central Office. The case is now before us
pursuant to this certification.
On January 29, 1963, after having received the latter notice of
certification, the petitioner submitted a statement dated January 12,
1963, again expressing the urgent need for the beneficiary's services as
a "cantor' and stating that the church now had two cantors, one of whom
was disabled, and the other 76 years-of-age. This statement also
alleges that the remuneration for the position is now $3,200 annually,
plus free living quarters and tips.
In determining whether an urgent need exists for the beneficiary's
services within the meaning of the statute, a reasonable interpretation
must be applied. In the usual case, the petitioner seeks the services
of the beneficiary on a full-time basis, and the beneficiary derives his
livelihood from the services rendered for the petitioner. Such a
petition normally would be approvable where it is shown that the
beneficiary possesses the requisite skills, that the petitioner has an
urgent need of the beneficiary's skills because of the latter's
qualifications, and that the services rendered would benefit the
national economy, cultural interests or welfare of the United States
prospectively.
Where a petitioner requires a beneficiary's services on less than a
full-time basis and the beneficiary will have to work elsewhere to
sustain himself, a finding ordinarily may not be made that his services
are "needed urgently' within the contemplation of section 203(a)(1) of
the Immigration and Nationality Act. An exception to this rule may be
made if it is established that the services which a beneficiary will
perform for persons or organizations other than the petitioner require
the same skills and qualifications, and that the beneficiary will be
employed on what may be considered a full-time basis and will receive
sufficient compensation to sustain himself and family from the work
performed for the petitioner and the related work performed for others.
In the instant case, it has not been established that the beneficiary
will devote his services full-time to the services to be performed for
the petitioner or in related pursuits, or that he will derive sufficient
income from such employment without the necessity of engaging in
unrelated work in order to sustain himself and his family. The
petitioner has, in fact, indicated that the beneficiary will have to
engage in such unrelated work to supplement the income which he will
receive from the petitioner for the work the beneficiary will perform on
Sundays and holy days only. The record clearly shows that there is only
a part-time need for the services of the beneficiary in the field for
which his services are sought. It is concluded that an urgent need for
the beneficiary's services has not been established within the meaning
of the statute, and that the visa petition was properly denied.
It is ordered that the decision of the Regional Commissioner be
sustained and the petition denied.
When parailel deportation and extradition proceedings are pending, the outstanding order of deportation will be withdrawn and further deportation proceedings held in abeyance during the pendency of extradition proceedings, since further deportation proceedings would serve no useful purpose and the outstanding order of deportation might unnecessarily and improperly complicate the extradition proceedings.
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at entry -- No immigrant visa (8 U.S.C. 1182(a)(20)).
Lodged: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer than permitted as a nonimmigrant.
Respondent is a former president of the Republic of Venezuela. Early
in 1958 revolutionary forces terminated his incumbency as president. He
left his homeland at that time.
Our decision of September 8, 1959, affirmed the special inquiry
officer's order directing respondent's deportation on the charge that he
had remained in this country as a nonimmigrant longer than permitted.
Respondent has not designated a country to which he would prefer to be
sent if deported. /1/
Subsequent to our prior order respondent applied for the benefits of
section 243(h) of the Immigration and Nationality Act. The case comes
here now on respondent's motion to reopen the proceedings to afford him
a hearing on that application and on the Service motion to withdraw the
deportation order. /2/ We conclude that the Service motion should be
granted.
Respondent last arrived in the United States at West Palm Beach,
Florida on March 28, 1958. He then possessed a Venezuelan diplomatic
passport and a nonimmigrant visa issued on February 10, 1958 at our
Embassy in Santo Domingo. /3/ The Service initially paroled respondent
but on January 7, 1959 admitted him as a temporary visitor. Respondent
is 49 years old. His wife and four minor children are with him in this
country. Only respondent is under proceedings at this time, however.
The Consul General of Venezuela in Miami informed the Service by
letter of June 5, 1958 that the Venezuelan government had cancelled the
diplomatic passports of respondent and his wife and children (Ex. 4).
On August 24, 1959 the Venezuelan Consul in Miami filed a complaint
in the District Court for the Southern District of Florida seeking
respondent's extradition to Venezuela. A district judge, sitting as a
magistrate in extradition proceedings, found probable cause that
respondent had committed in Venezuela certain financial crimes which are
covered by the Treaty of Extradition between Venezuela and this country.
/4/ He committed respondent to the custody of the United States Marshal
to await the Secretary of State's action. /5/ Respondent then brought
habeas corpus proceedings, which the District Court dismissed. The
Court of Appeals affirmed that decision and the Supreme Court denied
certiorari. /6/ The extradition proceedings now await the Secretary of
State's decision whether to issue a warrant of extradition.
The Service contends that the extradition proceedings and Immigration
proceedings are exclusive and independent of each other. Both the
Service motion and the argument of respondent's counsel point out that
if respondent's removal takes place under extradition proceedings while
there is outstanding an order of deportation, the deportation order will
be executed. /7/ The Service further points out that in the event of
extradition any immigration proceedings will be mooted and terminated.
Therefore, the Service contends, the outstanding deportation order
serves no useful purpose at this time and may introduce complications.
The Service also argues that, if the Secretary of State fails to
issue a warrant of extradition, resumption of deportation proceedings
would enable extending to respondent all rights and privileges under the
deportation laws and regulations, including adjudication of his
application under section 243(h). Thus, the Service urges, the motion,
in seeking to eliminate the possibility of execution of the deportation
order without affording respondent his full rights and privileges under
the laws pertaining to deportation, is beneficial to respondent.
Respondent contends that the Service motion, if granted, would not
benefit him but would deprive him of his right to an adjudication at
this time of his application under section 243(h). He apparently would
risk the possibility of deportation through extradition in order to
obtain such an adjudication. Respondent thus prefers to rest his case
for avoiding return to Venezuela upon the Attorney General's ruling in
deportation proceedings rather than the Secretary of State's ruling in
the extradition proceedings. We are to determine whether to grant
either of the motions before us and if so which one.
We find that we need not determine whether withdrawal of the
deportation order would be beneficial or detrimental to respondent.
Therefore, we do not decide whether extradition would execute an
outstanding order of deportation. If granting the Service motion would
benefit respondent by preventing deportation shorn of some of its
procedural safeguards, such benefit would be, for our purposes, a side
effect. We base our decision on the grounds that, in view of the
extradition proceedings, further deportation proceedings would serve no
useful purpose and may unnecessarily and improperly complicate the
extradition proceedings.
As we have seen, the Service motion states that deportation and
extradition proceedings are exclusive and independent of each other.
Respondent asserts that the Service actions so far in these proceedings
have not demonstrated the two are mutually exclusive and independent.
Both the Service and respondent are correct to some extent. The two
procedures are independent in the sense that the proceedings under each
are separate and distinct and that a decision in one is not necessarily
dependent upon the findings in the other. Though for different
purposes, they are related in their effect of removing a person from the
country. /8/ Where the proceedings are parallel, therefore, one should
be cognizant of the other.
We may properly comment upon the pending extradition proceedings only
to the extent that references to those proceedings are necessary to our
decision in the matter before us. We note that, essentially, respondent
seeks to avoid extradition and deportation on the same ground. He
contends that the present political climate in Venezuela is decidedly
adverse to him and therefore he should not be returned to Venezuela at
this time.
Respondent apparently perceives that pursuing his section 243(h)
application and his defense to extradition simultaneously may offer
procedural advantages to him. He points to the established regulations
and procedures and the avenues for judicial review which appertain to an
application filed pursuant to section 243(h). Although not suggesting
that he would not receive due process of law at the hands of the
Secretary of State, respondent says that there are no regulations
governing the Secretary of State's action and that the procedures are
less tested and more nebulous than those in deportation proceedings.
At oral argument respondent's counsel suggested that a favorable
conclusion to respondent's section 243(h) application should prevail
over a ruling by the Secretary of State to grant extradition. This
suggestion can mean only that the Secretary of State, in his discretion,
should defer to the grant of the benefits of section 243( h). There is
no legal basis for the granting of such an application to take
precedence over the Secretary of State's issuance of a warrant of
extradition. If anything, in practice, the reverse would be true.
Treaties and statutes of Congress form part of the supreme law of the
land and are of equivalent effect. Except to the extent that a treaty
and a federal statute may be inconsistent, neither prevails over the
other. If inconsistent, the expression of the Congressional will which
is later in time prevails. /9/ Nullification of a treaty by implication
is not favored, however. /10/
Here there is no inherent inconsistency between, on the one hand, our
Treaty of Extradition with Venezuela and the statutory provisions for
extradition and, on the other, the statutory provisions of deportation,
including withholding of deportation on the basis of impending physical
persecution. Any inconsistency which might result would arise only from
divergent applications of those provisions by different government
officials. Statutes should be interpreted and applied, however, so as
to render them harmonious and to give maximum effect to the provisions
of each.
A decision by the Secretary of State granting extradition will
terminate any deportation proceedings in whatever posture they might be
at the time. Thus, although pending section 243(h) proccedings might
support a request for reconsideration of the Secretary's decision, or
for some form of judicial relief, failing either of those remedies the
243(h) proceedings would be effectively terminated. The same result
would obtain if respondent had successfully prosecuted such application
to a conclusion. Since the granting of the stay would not necessarily
bar extradition, the stay of deportation might be abruptly terminated.
The Treaty requirement that Venezuela will try respondent only for
the crimes specified in the warrant of extradition (for which the judge
has already found probable cause) and the express prohibition against
trial or punishment for a political crime or offense distinguish the
extradition proceedings from these. /11/ Only if Venezuela should,
because of overriding political considerations, dishonor its obligations
under the Treaty would the factors to be considered in the two
proceedings merge. Moreover, if the Secretary of State considers
whether Venezuela might physically persecute respondent, his conclusion
on the overall likelihood of physical persecution might differ from a
decision by the special injury officer, or by us, granting withholding
of deportation.
The withholding of deportation authorized by section 243(h) of the
Act may terminate at any time the Attorney General deems that
deportation may be effected without subjecting the alien to physical
persecution. Therefore, issuance of a warrant of extradition here might
be considered basis for terminating any stay of deportation granted
under section 243(h). In a sense the language of the Treaty and of the
statutory provisions involved in respondent's case would all have been
given effect. But the 243(h) proceedings would actually have served no
useful purpose from the point of view of the determination of
respondent's case.
As the Service motion and argument point out, such proceedings would
serve only to complicate the extradition proceedings. We think they
should not be made available for the purpose of bolstering up
respondent's argument before the Secretary of State or providing a
diversionary and distracting element in the overall proceedings
involving respondent, which are already extensive. Orderly procedure
requires deferral of any proceedings under section 243(h) until a final
decision is rendered in the extradition case. Procedures under that
section will be available to respondent if the extradition proceeding
terminates in his favor, and if otherwise warranted at that time. We,
therefore, deny respondent's motion solely on the grounds that it is
inappropriate at this time.
Respondent contends that we lack authority to withdraw the
outstanding deportation order. /12/ The statutory provisions for
deportation say that aliens in certain categories in the United States
shall be deported upon the order of the Attorney General. Neither the
statute nor the regulations limits the Attorney General's discretionary
authority in the timing the the entry of such an order.
Respondent's counsel concedes that we have authority to withdraw an
order of deportation in certain instances where the grounds for
deportation have been eliminated or where certain applications for
relief, such as suspension of deportation and voluntary departure, are
to be granted. /13/ He also concedes that entry of the deportation
order could have been deferred in the first place.
Our general authority extends to exercising whatever discretion and
authority -- appropriate and necessary for the disposition of the case
-- the law confers upon the Attorney General in the matters before us
for determination. /14/ We do not doubt we have the discretionary power
to withdraw the order of deportation if we deem such action warranted.
Only one argument of any force supports counsel's contention that, in
respondent's case, entry and withdrawal of the deportation order is
improper (although entry of the order might properly have been deferred
in the first place). We consider such force is slight here. Counsel
contends that the six-month period during which respondent might have
been taken into custody under the present order has run. Thus, he
argues, future reinstatement of that order after withdrawal would open
up a new opportunity for respondent's confinement. We do not examine
the legal basis for this contention. Assuming that counsel's statement
of the situation is correct, we think the possibility he envisages is
remote. If the deportation order is withdrawn, perhaps circumstances
will not necessitate future reinstatement of deportation proceedings.
If such proceedings are reinstated, perhaps a final order of deportation
will not be entered. If a final order of deportation is entered,
perhaps respondent will not be taken into custody under that order.
On the other hand, while the deportation order is outstanding
respondent remains entitled to pursue his section 243(h) application.
We have concluded that the deportation proceedings should not, during
the pendency of the extradition proceedings, be reopened to enable
respondent to be heard on that application. Withdrawal of the order of
deportation removes the basis for the section 243(h) application.
There is only a vague possibility that respondent might in the future
be prejudiced through consequences flowing from a reinstatement of the
order of deportation. Against that possibility is the more immediate
possibility of complicating the extradition proceedings if the
deportation order remains in effect. Respondent may confine to the
proceedings before the Secretary of State his argument that on political
grounds he should not be extradited to Venezuela. If successful there,
it is unlikely that he would have to argue further that his deportation
to Venezuela should be withheld. But, if necessary, he could have full
opportunity to present his case. The concurrent treaty and statutory
procedures applicable to respondent may thus be given their maximum
effect.
We decide here only a limited phase of the overall proceedings
involving respondent. In the perspective of the entire applicable
statutory and treaty provisions, however, orderly procedure requires
withdrawal of the deportation order as well as deferral of further
proceedings pertaining to deportation. We see nothing in the matters of
more immediate concern to us which requires a different ruling. We
shall grant the Service motion.
ORDER: It is ordered that respondent's motion to reopen the
deportation proceedings to afford him an opportunity to be heard on his
application for the benefits of Section 243(h) of the Immigration and
Nationality Act be and hereby is denied.
It is further ordered that the Service motion to withdraw the order
of September 8, 1959, directing respondent's deportation, and to hold in
abeyance the deportation proceedings be and hereby is granted.
It is further ordered that the order of September 8, 1959, directing
respondent's deportation be and hereby is withdrawn and that any further
deportation proceedings be held in abeyance during the pendency of the
proceedings under the provisions of the Treaty of Extradition between
Venezuela and the United States and applicable statutory provisions
pertaining to extradition.
(1) When the special inquiry officer heard respondent's case, the
regulations did not provide, as now, for the special inquiry officer to
determine the place of deportation.
(2) Respondent has also filed in the District Court, Southern
District of Florida a petition for a mandatory injunction, seeking
adjudication of his application.
(3) Then Ciudad Trujillo.
(4) 43 Stat. 1698, T.S. No. 675 (1923).
(5) 18 U.S.C. 3186.
(6) Jimenez v. Aristeguieta, 311 F.2d 547 (C.A. 5, 1962), cert. den.
sub nom. Jimenez v. Hixon, 373 U.S. 914 (1963).
Litigation connected with the extradition proceedings has been
extensive. The judicial phase of the principal action terminated with
an order of the magistrate dated June 16, 1961, committing respondents
to the custody of the United States Marshal, and an order of June 23,
1961, certifying the record to the Secretary of State with the judge's
findings. Earlier in that proceeding, another judge had denied
respondent's motion for a protective order against the taking of certain
depositions. Respondent attempted an appeal, but the Court of Appeals
for the 5th Circuit held that it had no jurisdiction of an appeal from
an interlocutory or final order of a magistrate in an extradition
proceeding. Jimenez v. Aristeguieta, 290 F.2d 106 (C.A. 5, 1961) --
criticized, 61 Mich.L.Rev. 383 (1962).
There have been various collateral proceedings in addition to the
habeas corpus proceedings cited above. Aristeguieta v. Jimenez, 274 F.
2d 206 (C.A. 5, 1960, per curiam) and First National City Bank v.
Aristeguieta, 287 F.2d 219 (C.A. 2, 1960), cert. granted 365 U.S. 840
(1961) -- denials of motions to quash subpeoneas duces tecum. Jimenez
v. Aristeguieta, 314 F.2d 649 (1963) -- denial of bail.
(7) Counsel for the Service indicated at oral argument that he is
unwilling to concede merit in respondent's argument that extradition
with a final order of deportation outstanding would be in effect a
self-executing deportation without an opportunity for respondent to be
heard on his application for a stay of deportation. The Service
representative pointed out, however, that granting the Service motion
would avoid the situation respondent contemplates. Compare section
101(g), Immigration and Nationality Act, 8 U.S.C. 1101(g).
(8) Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893).
(9) Fong Yue Ting v. United States, supra /8/ ; Ex parte Gin Kato,
270 F. 343 (D.C., 1920); In re Giacobbi, 32 F.Supp. 508 (1939), aff'd
sub nom U.S. ex rel. Giacobbi v. Fluckey, 111 F.2d 297 (C.A. 2, 1940).
(10) United States v. Domestic Fuel Corp., 71 F.2d 424 (Cust. & Pat.
App. 1934).
(11) The magistrate found that the evidence did not establish
probable cause for the charges of murder and participation in murder as
accessory before the fact. He also found that the financial crimes were
not of a political character -- hence not barred by Article III of the
Treaty.
(12) In none of the cases cited by respondent to show that the
Attorney General has a duty to deport after entry of a final order of
deportation was an extradition proceeding pending along with the
deportation proceeding.
(13) The Attorney General has held an outstanding order of
deportation may be withdrawn to grant suspension of deportation. Matter
of B , 6 I. & N. Dec. 713.
(14) 8 CFR 3.1(d).
(1) Respondent, a lawful permanent resident of the United States, who in 1956 when he was 16 departed with his mother and stepfather to Germany where the latter was assigned to a tour of military duty and in 1959 when he was 19 returned to the U.S. with his parents, again under military orders of his stepfather, did not upon his return make an entry within the meaning of section 101(a)(13) of the Immigration and Nationality, since he was an unemancipated minor under the legal compulsion to follow and accompany his parents and his departure to and presence in a foreign place was not voluntary nor intended by him.
(2) Therefore, respondent's return to the United States in 1959 does not constitute an entry on which to predicate a ground of deportation under section 241(a)(4) of the Act on the basis of his conviction on March 25, 1960, of a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Crime within five years after entry -- Atrocious assault and battery.
The case comes forward on appeal by the trial attorney from the
decision of the special inquiry officer dated December 19, 1962
terminating the proceedings.
The record relates to a native and citizen of Germany, 23 years old,
male, single, who originally entered the United States for permanent
residence on January 9, 1954. On March 25, 1960 in the County Court of
Ocean County, New Jersey, the respondent was convicted of atrocious
assault and battery with a knife committed on December 21, 1959, as more
fully set forth in the indictment and was sentenced to confinement in
the Bordentown Reformatory for an indeterminate term. On August 24,
1960 the special inquiry officer found the respondent deportable as
charged as one who committed a crime involving moral turpitude within
five years after his last entry and was sentenced to confinement for a
year or more within five years after his alleged last entry on August
31, 1959. On January 17, 1962 counsel for the respondent filed a motion
for reopening and reconsideration on the grounds (1) that there was not
sufficient proof upon which the special inquiry officer could properly
determine the question of the respondent's entry or reentry into the
United States; (2) that the respondent did not enter or reenter the
United States within five years of the commission of the crime of
atrocious assault and battery on December 21, 1959; and (3) that the
respondent desired to produce proof that his entry into the United
States was not an entry pursuant to the definition of section 101(a)(13)
of the Immigration and Nationality Act. On January 25, 1962 the special
inquiry officer granted the motion to reopen and on November 16, 1962
granted the government's motion to reopen in connection with an
application for adjustment of status under section 245 of the
Immigration and Nationality Act.
According to respondent's birth certificate he was born on February
18, 1940 (Ex. 3) at Schweinfurt, Germany although his testimony is to
the effect that he was born February 18, 1942 (p. 17). We will accept
the birth certificate as being the correct date of birth. His father
was killed in the Second World War and his mother married a United
States citizen, a sergeant in the United States Army in October 1953.
The respondent, his mother and stepfather came to the United States in
January 1954 when the respondent was admitted for permanent residence.
He resided with his stepfather and mother. In August or September 1956
the respondent's stepfather was assigned to a new tour of duty in
Germany and the respondent and his mother were included in the orders
and accompanied the respondent's stepfather to Germany (Ex. 5). The
respondent lived with his stepfather and mother, went to high school and
to the University of Maryland Extension Branch and returned to the
United States in August or September 1959 when his stepfather was
transferred to this country under military orders. The respondent was
16 years of age at the time he departed and 19 years of age when he
returned. During all this period he was an unemancipated minor, in the
custody and subject to the control of his stepfather. It is believed
that the New Jersey statute and New Jersey cases cited by the trial
attorney confirm the conclusion that the respondent, as an unemancipated
infant, was under a duty to obey the order of his parents, in this case
the stepfather.
The issue in the case is whether the respondent made an entry into
the United States upon his return from Germany. The term "entry' is
defined in section 101(a)(13) of the Immigration and Nationality Act, 8
U.S.C. 1101(a)(13) as follows:
The term "entry' means any coming of an alien into the United
States, from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise, except that an alien
having a lawful permanent residence in the United States shall not
be regarded as making an entry into the United States for the
purposes of the immigration laws if the alien proves to the
satisfaction of the Attorney General that his departure to a
foreign port or place or to an outlying possession was not
intended or reasonably to be expected by him or his presence in a
foreign port or place or in an outlying possession was not
voluntary: . . .
In commenting on the exception contained in the latter portion of
this definition, the framers of the legislation explained that "however,
for the purpose of determining the effect of a subsequent entry upon the
status of an alien who has previously entered the United States and
resided therein, the preciseness of the term "entry' has not been found
to be as apparent.' More recently, the courts have departed from the
rigidity of that rule and recognized that an alien does not make an
entry upon his return to the United States from a foreign country where
he had no intent to leave the United States (DiPasquale v. Karnuth, 158
F.2d 878 (2d Cir. 1947)) nor did not leave the country voluntarily
(Delgadillo v. Carmichael, 332 U.S. 388 (1947)); the bill defines the
term "entry' as precisely as practicable, giving due recognition to the
judicial precedents. Thus any coming of an alien from a foreign port or
place or an outlying possession into the United States is to be
considered an entry, whether voluntary or otherwise, unless the Attorney
General is satisfied that the departure of the alien, other than a
deportee, from this country was unintentional or was not voluntary. /1/
In the case of DiPasquale v. Karnuth, /2/ it was held that no "entry'
within the contemplation of the immigration laws had been made by an
alien who returned to the United States as soon as practicable following
an unintended and unwitting departure which occurred when the train upon
which he was traveling between points in the United States crossed the
international border without the alien's knowledge, and indeed while he
was sleeping. The case of Delgadillo v. Carmichael, /3/ involved a
Mexican alien who had made a legal entry into the United States in 1923,
resided here until 1942 when he shipped out as a member of the crew of
an American merchant ship which was torpedoed and the alien was then
taken to Cuba where he remained for one week and then was returned to
the United States. Deportation was sought on the ground that he had
been sentenced to imprisonment for one year or more because of
conviction of a crime involving moral turpitude committed within five
years after his alleged entry in 1942. The Supreme Court reversed the
Ninth Circuit Court of Appeals, following with approval the construction
placed upon the word "entry' by DiPasquale v. Karnuth, /4/ holding that
the alien in that case did not make an entry within the meaning of the
immigration laws; refusing to attribute to Congress a purpose to make
his right to remain here dependent on circunstances so fortuitous and
capricious as those which existed in that case; in effect, holding that
where an alien's departure to or presence in a foreign country was
involuntary, no entry was, in law, made upon the alien's return to the
United States.
The court in Carmichael v. Devaney, /5/ held that a resident of the
United States who served in the United States Maritime Service during
the Second World War and who returned to the United States after his
ship had entered several foreign ports, did not make an "entry' within
the immigration laws when returning to the United States because it was
not his voluntary act but the exigencies of war in which he was a
participant that brought him to foreign ports. To like effect it has
been held that an alien who, while residing in the United States, is
inducted into the Armed Forces and during his tour of duty serves in a
foreign country is regarded as being physically present in this country
during all of the time. And that his return to this country as a member
of the Armed Forces does not constitute an entry. /6/
It is true that the facts in the present case differ from those
existing in the cited cases which led to the present definition of the
term "entry' as used in section 101(a)(13) of the Immigration and
Nationality Act. However, the facts are substantially similar to those
existing in U.S. ex rel. Valenti v. Karnuth. /7/ That case involves a
schoolboy of 16 in an American public school who went with his teacher
and the class for a picnic to a Canadian beach. The court held that in
the decisions on the subject of departure and reentry of an alien, there
is a necessary implication that the acts of the alien were at all times
voluntary and free from restraint of any kind, and that there was entire
liberty on his part to leave or not to leave, to reenter or not to
reenter, as he pleased. The court held that the minor schoolboy in that
case could not possess the freedom of action to decide whether or not he
would go; he was not a free agent acting entirely of his own volition;
he was under compulsion as if he were in the schoolroom and was not
voluntarily departing from and reentering the country within the meaning
of the statute; on the contrary, he was under compulsion both when he
left for and when he returned from such picnic. The compulsion under
which the relator may be presumed to have acted serves to distinguish
his case from cases where the departure was purely voluntary.
It is contended that the Valenti case has been repudiated in U.S. ex
rel. Dombrowski v. Karnuth, 19 F.Supp. 222 (W.D.N.Y., 1937) and Drachmos
v. Hughes, 26 F.Supp. 192, 194 (W.D.N.Y., 1937). However, neither of
those cases involves a minor and the same answer may be made in the case
of U.S. ex rel. Betty v. Day, 23 F.2d 489, in which the reentry of the
relator did not occur during minority. The principle of the Valentic
case, i.e., voluntariness, has been followed in a number of
administrative decisions. /8/
In the present case the respondent departed with his mother and
stepfather, who was in military service and under order to Germany when
he was 16 years of age and returned when he was 19 years of age. It has
been shown that the respondent was an unemanicipated minor, under the
custody and control of his parents, and he had no choice nor was he
asked whether he would depart. Under the law in the State of New Jersey
it was incumbent upon the minor respondent to obey the directions of his
parents and he was obliged to follow and accompany his stepfather when
the stepfather so directed. We do not reach the question of whether the
respondent's stepfather's departure under military orders was a factor
in the case. What is important is that the respondent was under a legal
compulsion to follow and accompany his parents. Being under such
compulsion, his case appears to be undistinguishable from U.S. ex rel.
Valenti v. Karnuth. /9/ It is believed that the respondent has
established that he falls within the exception set forth in section
101(a)(13) of the Immigration and Nationality Act in that his departure
to a foreign place was not intended by him or his presence in a foreign
place was not voluntary. It is concluded that at the time of his last
return on August 31, 1959, the respondent had not in contemplation of
law made a reentry. Of course, as regards his original entry on January
9, 1954, the definition of the term "entry' eliminates the question of
voluntariness. The appeal will be dismissed.
ORDER: It is ordered that the appeal of the trial attorney from the
decision of the special inquiry officer dated December 19, 1962
terminating the proceedings be and the same is hereby dismissed.
(1) 2 U.S. Code Cong., and Adm. News, 82nd Cong., 2d Sess., p. 1683.
(2) 158 F.2d 878 (2d Cir. 1947).
(3) 332 U.S. 388 (1947).
(4) See 2.
(5) 170 F.2d 239 (9th Cir. 1948).
(6) Matter of J M D , 7 I. & N. Dec. 105.
(7) 1 F.Supp. 370 (N.D.N.Y., 1932).
(8) Matter of T , 4 I. & N. Dec. 235 (1951); Matter of P , 5 I. & N.
Dec. 220 (1953); Matter of C , 5 I. & N. Dec. 370 (1953); unreported
Matter of C N , A-8410653 (September 30, 1960 motion to reconsider
denied January 27, 1961).
(9) 1 F.Supp. 370 (N.D.N.Y., 1932).
(1) An applicant for suspension of deportation within the provisions of section 244(b), Immigration and Nationality Act, as amended, is exempt from the requirement of any specified period of physical presence.
(2) While such an applicant is also exempt from the necessity of establishing good moral character for the period coextensive with the physical-presence period, he must establish good moral character between the date he filed his application and the date it is finally adjudicated. Conduct prior to date of filing can be considered in determining whether good moral character has been established during the period in question.
(3) In computing the 24-month period of active-duty status under section 244(b) of the Act, as amended, annual active training duty as a member of the Reserves can be credited to active-duty service but unused accrued leave cannot be so credited.
CHARGE:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) --
Failed to comply with conditions of admission -- student.
The special inquiry officer granted suspension of deportation and
certified his order to the Board for final decision. The order will be
approved.
The issue concerns the effect of military service in the United
States on the necessity of an applicant for suspension of deportation
establishing that he has seven years continuous physical presence in the
United States.
Respondent, a 25-year-old, single, male alien, a native and citizen
of the Philippines, was admitted to the United States as a student on
October 5, 1957. He has not attended school since June 14, 1962; he is
clearly deportable on the charge in the order to show cause.
On March 11, 1959, the respondent was inducted into the Army of the
United States at Oakland, California; he was on active duty until
February 28, 1961, when he received an honorable release to the
Reserves. He is obligated to serve in the Reserves until March 10,
1965. He attended the annual active duty for training required of
Reserves from June 17 to June 30, 1962.
Respondent is applying for suspension of deportation under section
244(a)(1) of the Immigration and Nationality Act as amended by Public
Law 87-885, October 24, 1962, 87 Stat. 1247 (8 U.S.C.A. 1254 (Supp.
1962)) which provides for suspension of deportation of an alien who:
(1) is deportable under any law of the United States except the
provisions specified in paragraph (2) of this subsection; has
been physically present in the United States for a continuous
period of not less than seven years immediately preceding the date
of such application, and proves that during all of such period he
was and is a person of good moral character;
Respondent, who has not been in the United States for seven years,
believes that the requirement as to length of residence is waived by
section 244(b) of the Act which provides:
The requirement of continuous physical presence in the United
States specified in paragraphs (1) and (2) of subsection (a) of
this section shall not be applicable to an alien who (A) has
served for a minimum period of twenty-four months in an
active-duty status in the Armed Forces of the United States and,
if separated from such service, was separated under honorable
conditions, and (B) at the time of his enlistment or induction was
in the United States.
The exemption from physical presence in the United States can be read
in two ways: It can mean that a total presence of seven years in the
United States is required but that the presence need not be a continuous
one; it can also mean that seven years presence in the United States is
not required. We believe that the second premise was intended by
Congress and that the necessity for any definite period of presence has
been eliminated.
Representative Walter who handled the legislation made the following
statement on the floor of the House concerning the section:
The inclusion in the benefits of this legislation of aliens who
served honorably for a stated period of time in the Armed Forces
of the United States represents the incorporation into a permanent
statute of a policy traditionally adhered to by the Congress in
the enactment of private relief bills for the alien servicement or
ex-servicemen. (108 Cong.Rec. 22153 (daily ed. October 12,
1962.))
Since it was the purpose of Congress to minimize the number of
private relief bills for alien servicemen -- a purpose which can best be
accomplished by taking a broad view of the legislation, and since
remedial legislation should be broadly interpreted, we hold that it was
the intent of Congress to eliminate any specified period of residence in
the United States for a person who has the necessary honorable service
in the Armed Forces.
This conclusion brings us to the question whether the respondent had
honorable service "for a minimum period of twenty-four months in an
active-duty status.' The military report of the respondent's transfer
from active duty (Form DD-214) reveals, induction on March 11, 1959,
release to the Reserves on February 28, 1961, credit with a total active
service of 1 year, 11 months, and 20 days, and a lump-sum payment for 47
days accrued leave. Respondent has also supplied evidence that he
complied with a Reserve obligation by attending annual active duty for
training (ANACDUTRA) from June 17 to June 30 (Ex. 2). We find that the
accrued 47 days of leave during his active military service may not be
used to compute the period of active-duty, but that the service from
June 17-30, 1962, can be used for such purpose.
The definitions of pertinent terms follow:
"Active duty' means full-time duty in the active military
service of the United States. It includes duty on the active
list, full-time training duty, annual training duty, and
attendance, while in the active military service, at a school
designated as a service school by law or by the Secretary of the
military department concerned (10 U.S.C. 101(22)).
"Active service' means service on active duty (10 U.S.C. 101(
24)).
"Inactive-duty training' means -- (A) duty prescribed for
Reserves by the Secretary concerned under section 206 of title 37
or any other provision of law; and (B) special additional duties
authorized for Reserves by an authority designated by the
Secretary concerned and performed by them on a voluntary basis in
connection with the prescribed training or maintenance activities
of the units to which they are assigned.
It includes those duties when performed by Reserves in their
status as members of the National Guard (10 U.S.C. 101(31)).
Leave taken prior to discharge or separation from the service
will be considered as active military service but unused accrued
leave settled and compensated for under the Armed Forces Leave Act
of 1946, as amended, will not be considered as active military
service (AR 630-5, Sec. III par. 22(a)2).
We can thus see that the accrued leave cannot be credited as
active-duty service but that it is proper to utilize the annual training
duty. Respondent therefore has the required period of military service
of the requisite character.
Our conclusion that Congress eliminated any specified period of
physical presence for the qualified serviceman requires consideration of
the question whether the exemption also eliminated the necessity for
establishing good moral character for a specified period. In a somewhat
similar situation regarding naturalization benefits awarded to
servicemen, the court held that elimination of the specified period of
residence which had been referred to in the general requirement that
good moral character be established for a fixed period, eliminated for
the serviceman, the obligation of establishing good moral character
except for the period from the time of filing the application for
benefits to the time of final adjudication. (Conduct prior to the date
of the filing could be considered as bearing upon the question of
whether good moral character within the requisite period had been
established.) (In Re Petition for Naturalization of Suey Chin, 173 F.
Supp. 510, 512-3, S.D.N.Y. (1959); see also Yuen Jung v. Barber, 184
F.2d 491, 9th Cir. (1950).) It appears to us a similar rule must apply
here. In the instant case, affidavits of friends, service
investigations, check of records of police and the Federal Bureau of
Investigation has failed to reveal any derogatory information.
Respondent is considered a person of good moral character and loyal to
the United States. We believe that respondent has established good
moral charactor. No change will be made in the order of the special
inquiry officer granting suspension.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
In determining loss of citizenship under section 349(a)(4)(A), Immigration and Nationality Act, evidence of employment under the government of a foreign state or a political subdivision thereof should be established by properly authenticated documents which refer to the pertinent portion of the constitution, laws, and regulations of that foreign state.
EXCLUDABLE: Act of 1952 -- Section 212(a)(20) 8 U.S.C. 1182(a)(20)
-- Immigrant without visa.
This is an appeal from the order of the special inquiry officer
excluding the applicant upon the ground stated above.
The applicant a 40-year-old married male, became a citizen of both
the United States and Mexico at birth. Since 1935 he has lived in
Mexico; he has been working for the Municipal Water System of Naco,
Sonora, Mexico since 1961. The Service charges that this employment
resulted in the applicant's loss of United citizenship under the
provisions of section 349(a)(4)(A) of the Act (8 U.S.C. 1481) which
provides that a United States national shall lose his United States
nationality by:
accepting, serving in, or performing the duties of any office,
post, or employment under the government of a foreign state or a
political subdivision thereof, if he has or acquires the
nationality of such foreign state * * *.'
Loss of United States nationality occurs under this section when the
employment is "under the government of a foreign state or a political
subdivision' even though performance of the duties of the employment is
not inconsistent with retention of United States nationality (Matter of
Le Couteur, Int. Dec. No. 1146), and even though the employment is not
restricted to nationals of the foreign state. /1/ We are thus faced
with the sole issue as to whether applicant's employment is "under the
government of a foreign state or a political subdivision.'
The special inquiry officer's finding that the applicant's employment
was under the government of a foreign state or a political subdivision
thereof is based on information from applicant's employer Roberto Duarte
Guerrero, Manager of the Potable Water System, Municipal Government of
Naco, Sonora, Mexico, who on a paper without letterhead and without seal
furnished the information, that applicant works for the system and
receives his pay as a pumpman from the Federal Government of Mexico,
that the system is an agency of the Federal Government of Mexico in the
Department of Hydraulic Resources, and that the system is owned by the
Government of Mexico. He also states that the employees must be Mexican
citizens. No reference to the legal basis for the hearsay opinion given
by the manager of the system is set forth.
We believe the record is deficient. Evidence that the applicant's
employment is under the Government of Mexico or a political subdivision
of Mexico should be established by reference to the constitution, laws,
and regulations of Mexico by documents which are properly authenticated.
Proceedings will be ordered reopened for this purpose (See Akiyo Oye v.
Acheson, 110 F.Supp. 635 N.D. Cal. (1953); Teruo Naito v. Acheson, 106
F.Supp. 770 S.D. Cal. (1952)).
ORDER: It is ordered that the proceedings be reopened for the
purpose stated in our opinion and for such further action as the special
inquiry officer may deem appropriate.
It is further ordered that the order of the special inquiry officer
be certified to the Board.
(1) This conclusion is founded on the fact that express language of
the predecessor section (section 401(d) of the Nationality Act of 1940,
54 Stat. 1137) requiring the employment to be that "for which only
nationals of such foreign state are eligible' does not appear in section
349(a)(4)(A) of the Act. The natural inference of this omission is
underlined by following comment made concerning the restriction, by the
Senate committee on whose recommendations the present section was based:
This subdivision section 401(d) of the Nationality Act of 1940 is
highly technical and has been the subject of much discussion and
interpretation. Generally, expatriation does not result where the
restriction as to "nationals only' is not generally enforced. Likewise,
if nonnationals are permitted to take such employment after an official
of the foreign state has stated that no nationals are available,
expatriation does not result. It does not apply to those who have
merely applied for employment, where the position is open to nationals
only, or to temporary employment thereafter made permanent, where
permanent employment is restricted to nationals only. The fact that a
person may be a national of the foreign state is irrelevant if the
position is open to others than nationals. The subsection does not,
therefore, in many cases, affect dual nationals, and therefore has been
ineffective in making such persons elect American citizenship
exclusively. The subcommittee is recommending changes in this
subsection which, is felt, will strengthen the law and make for a
determination of citizenship and an elimination of dual citizenship. *
* * (Footnotes omitted.) (S. Rep. No. 1515, 81st Cong., 2d Sess.
749-750 (1950).)
An application under section 248, Immigration and Nationality Act, for change of nonimmigrant status and the issues raised in the proceedings thereunder are not within the jurisdiction of either the special inquiry officer or the Board of Immigration Appeals.
CHARGE:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) --
Failed to comply with conditions of status of agricultural worker under
which admitted to the United States.
A total of 14 cases involving the same issues have been appealed by
counsel. This case will serve as a precedent for the disposition of the
others. To simplify the discussion and for administrative convenience,
this case which the special inquiry officer handled in an crder also
disposing of two other cases (Rogelio Avila-Valdez -- A-13568544 and
Jose Salud Guiterrez-Serrato -- A-13569146) will be considered
separately.
Respondent appeals from an order of the special inquiry officer
finding him deportable upon the ground stated above. Voluntary
departure was granted. We shall reopen proceedings.
Respondent, a 26-year-old single male alien, a native and citizen of
Mexico, was admitted to the United States as an agricultural worker on
May 3, 1962 for a period ending June 14, 1962. Recontracts extended the
period to December 20, 1962 (Ex. 4). For the purposes of this opinion,
as is explained later, we shall assume that by reason of an agreement
between the Republic of Mexico and the United States (Ex. 7), the period
was extended an additional 15 days to January 4, 1963. Respondent was
given no further extension by the Service yet remains in the United
States. The Service charges that the respondent is deportable because
his failure to depart violated the conditions of his admission. Counsel
contends that the respondent who had submitted an application for a
change of his status, is legally in the United States because his
application was improperly denied; counsel also raises a question as to
the applicability of the charge in the order to show cause, and contends
that the order to show cause was prematurely issued.
The questions raised by counsel require a full statement of facts
even though some of the facts are irrelevant in this deportation
proceeding. Respondent was admitted to the United States as an
agricultural worker under the Agricultural Act of 1949 as amended (7 U.
S.C. 1461-1468). /1/ On January 4, 1963, the respondent filed an
application (Ex. 5) with the District Director at Los Angeles,
California under section 248 of the Act (8 U.S.C. 1258) /2/ for a change
of his status from an agricultural worker to a temporary agricultural
worker described in section 101(a)(15)(H)(ii), 8 U.S.C.
1101(a)(15)(H)(ii). /3/ As required by regulation, /4/ the application
for a change of status was accompanied by a petition made by an
agricultural cooperative for the respondent's services as a temporary
agricultural worker (Ex. 6). On January 17, 1963 the District Director
returned the petition to the agricultural cooperative with a request
that a clearance from the State of California be submitted showing that
unemployed persons capable of performing the labor could not be found in
the United States (Ex. 6). Nothing further appears to have been done
with this petition. On January 18, 1963, the District Director denied
the application for a change of status on the ground that respondent was
not a nonimmigrant and therefore could not change from one nonimmigrant
class to another nonimmigrant class. The reason given for finding
respondent was not a nonimmigrant was that the nonimmigrant class is
created by section 101(a)(15) of the Act, but respondent had not been
admitted under this section: he had been admitted under the
Agricultural Act of 1949, as amended. The decision also notified the
respondent that he had 15 days within which to appeal to the Regional
Commissioner. On the same day the decision was handed down, the
District Director issued an order to show cause formally commencing
deportation proceedings against the respondent, and notifying him to
appear for his deportation hearing on January 29. The order to show
cause was served by mail. On January 25, 1963, the respondent filed an
appeal with the Regional Commissioner from the District Director's
denial of his application for a change of status. (The deportation
hearing was not held on January 29th as scheduled.) On January 30, 1963,
the Regional Commissioner dismissed the appeal on the ground used by the
District Director and on the additional ground that respondent had not
been the beneficiary of an approved petition (Ex. 5). On February 4,
1963 the respondent was notified that the hearing in the deportation
case had been rescheduled to February 12, 1963.
On the rescheduled date, the deportation hearing was held. The
Service established that the respondent had been admitted as an
agricultural worker authorized to remain until December 20, 1962 and
that he had not departed after the terminal date. Respondent testified
that on December 20, 1962, the terminal date, he had been employed by
the Tamaka Growers, that an official of the camp requested him to remain
for an additional 15 days. (A statement taken from the respondent
before the issuance of the order to show cause reveals that on December
28, 1962, he changed from one agricultural employer to another.) The
special inquiry officer ordered respondent deported on the charge in the
order to show cause, and the appeal before us was filed.
On appeal, counsel contends that the order to show cause was
prematurely issued and is in violation of due process because it was
issued before the decision of respondent's appeal to the Regional
Commissioner from the District Director's denial of his application for
a change of status. (It is also alleged that the Service arrested six
respondents ignoring the fact that their appeals to the Regional
Commissioner were pending and did not release them until after the order
to show cause had been served. The allegation of counsel is not
contested by the Service. Whether or not respondent was in this group
is not clear; however, for the purpose of this order we shall assume
that he was.)
Counsel's contention concerning the issuance of the order to show
cause will be dismissed. Enforcement of the immigration laws, often
makes necessary, investigation and detention of aliens suspected to be
in the United States illegally. The question as to whether there was an
abuse of these powers and unwarranted haste in the issuance of the order
to show cause is, in the absence of matters of duress and due process,
for the attention of the Service rather than the Board. No matter of
duress is raised. While a matter of due process is advanced, it seems
clear that premature issuance of an order to show cause would not alone
amount to a denial of due process. A similar matter was involved in
U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 156 (1923). Bilokumsky, an
alien who had been ordered deported contended that the deportation
proceeding was void ab initio because there had been a lack of probable
cause for the issuance of the warrant of arrest. The court rejected the
contention saying, "Irregularities on the part of the government
official prior to, or in connection with, the arrest, would not
necessarily invalidate later proceedings in all respects conformable to
law.' (263 U.S. at 158) There is no evidence here that the later
proceedings failed to conform to law.
We come thus to the issue of respondent's deportability. Deportation
is sought under section 241(a)(9) of the Act (8 U.S.C. 1251(a)(9)). The
section provides for the deportation of an alien who:
was admitted as a nonimmigrant and failed to maintain the
nonimmigrant status in which he was admitted or to which it was
changed pursuant to section 248, or to comply with the conditions
of any such status; * * *
Although the section speaks of an alien admitted as a nonimmigrant,
neither the statement of law in the order to show cause nor the factual
allegation of the order to show cause claims that respondent was
admitted as a nonimmigrant: the statement of law is that respondent was
admitted "in a temporary status, to wit, an agricultural worker under
Title V of the Agricultural Act of 1949, as amended,'; the factual
allegation is that respondent was "admitted in the temporary status of
an agricultural worker'. The special inquiry officer, assuming without
discussion (the issue had not been raised before him) that an
agricultural worker was a nonimmigrant as described in section 241(a)(9)
of the Act, found the charge sustained on the ground that the respondent
had clearly remained in the United States longer than the period for
which he had been authorized to remain.
We shall reopen proceedings so that the assumption made by the
special inquiry officer may be examined since the record raises the
question as to whether a temporary worker admitted under the
Agricultural Act is a nonimmigrant and whether one who is not a
nonimmigrant is deportable under section 241(a)(9). As counsel (who
contends that respondent is a nonimmigrant but not a deportable one)
points out, the Service, in the proceeding for the change of status took
the position that respondent is not a nonimmigrant /5/ , yet in this
proceeding the Service proceeds on the theory that respondent is a
nonimmigrant. How can the respondent be a nonimmigrant for one purpose
and not for another in matters as vital as those involved? Even more to
the point is the fact that section 241(a)(9) of the Act on which the
deportation order is based appears by its terms to relate to aliens
whose status can be charged by section 248 of the Act. The respondent
has been found by the Service in the change of status proceeding to be
an alien whose status cannot be changed by section 248 of the Act. Is
section 241(a)(9) of the Act broad enough to include an alien whose
status cannot be changed by section 248 of the Act? These issues
require an answer /6/ , for if the respondent is not deportable under
the section of law on which this proceeding is based, he cannot be
ordered deported in this proceeding merely because he appears to be
deportable under a section which has not been lodged. /7/ Due process
requires that deportation be accomplished only on a ground provided by
law, that the alien be notified of the ground so that he can make his
defense, that a record be created, and that the record reveal that the
Service has established in a fair hearing, by reasonable, substantial,
and probative evidence, that the alien is within that ground.
An issue which may come up again at the reopened hearing is the
contention of counsel that the provisions of a standard work contract
(Ex. 7) which provide that the services of an agricultural worker may be
utilized for a period of not more than 15 days after the expiration of
his contract, constitutes an extension of legal stay for the 15 days if
the option is exercised. While this contention appears to be arguable
on the basis of what little there is in the record, we see no need for
attempting to decide or for developing the issue since deportation is
sought not for what occurred within the 15-day period following the
termination of the contract, but for the failure to depart from the
United States even after the 15-day period. (In respondent's particular
case, we note that on December 28, 1962, before the expiration of the
15-day extension, he left the employer who had asked him to continue.)
However, development of this matter is left to the discretion of the
special inquiry officer.
We have reserved until now comment on the issues raised by counsel
concerning respondent's attempt to change his status from an
agricultural worker to a nonimmigrant worker. The proceeding to obtain
the change of status and the issues raised in the proceeding -- the
propriety of the denial of the application for the change of status, the
necessity for filing a petition from the employer in connection with the
application, the propriety of using state permission to employ
agricultural workers made in collateral cases -- are not within the
jurisdiction of either the special inquiry officer or this Board. The
initial decision on the application for a change of status is for the
District Director (8 CFR 103.1(f), 103.2-3, 214.4, Form I-129B (note
instructions on Form); the appeal is to the Regional Commissioner (8
CFR 103.1(e)). Clearly, neither the special inquiry officer nor the
Board has jurisdiction over the proceeding (8 CFR 3.1; see Matter of
Malkiesman, Int. Dec. No. 1090). Since this is so, it follows that
comment on the issues raised as to the change of status proceeding would
be inappropriate.
ORDER: It is ordered that the outstanding order of the special
inquiry officer be and the same is hereby withdrawn.
It is further ordered that proceedings be reopened for purposes not
inconsistent with those stated in our order and for such other purposes
as the special inquiry officer may deem appropriate.
It is further ordered that the decision of the special inquiry
officer be certified to this Board.
(1) Pertinent portions of the Agricultural Act of 1949, as amended,
follow:
Workers recruited under this title who are not citizens of the
United States shall be admitted to the United States subject to
the immigration laws (or if already in, for not less than the
preceding five years or by virtue of legal entry, and otherwise
eligible for admission to, the United States may, pursuant to
arrangements between the United States and the Republic of Mexico,
be permitted to remain therein) for such time and under such
conditions as may be specified by the Attorney General but,
notwithstanding any other provision of law or regulation, no
penalty bond shall be required which imposes liability upon any
person for the failure of any such worker to depart from the
United States upon termination of employment: * * * (section 505,
7 U.S.C. 1464, as amended, 7 U.S.C. 1464, 1465 (Supp. III)).
Workers recruited under the provisions of this title shall not
be subject to the head tax levied under section 2 of the
Immigration Act of 1917 (section 506(c), 7 U.S.C. 1465, as
amended, 7 U.S.C. 1464, 1465 (Supp. III)).
Nothing in this Act shall be construed as limiting the
authority of the Attorney General, pursuant to the general
immigration laws, to permit the importation of aliens of any
nationality for agricultural employment as defined in section 507
Agricultural Act of 1949 , or to permit any such alien who entered
the United States legally to remain for the purpose of engaging in
such agricultural employment under such conditions and for such
time as he, the Attorney General, shall specify (section 509, 7
U.S.C. 1468, as amended, 7 U.S.C. 1468 (Supp. III)).
(2) The Attorney General may, under such conditions as he may
prescribe, authorize a change from any nonimmigrant classification to
any other nonimmigrant classification in the case of any alien lawfully
admitted to the United States as a nonimmigrant who is continuing to
maintain that status, except an alien classified as a nonimmigrant under
paragraph (15(D) of section 101(a) alien crewmen , or an alien
classified as a nonimmigrant under paragraph (15)(C) or (J) of section
101(a) alien in transit or alien coming as participant in a State
Department program unless he applies to have his classification changed
from classification under paragraph (15)(C) or (J) to a classification
under paragraph (15)(A) or (15)(G) of section 101(a) diplomat or
representative of a foreign government (section 248 of the Act.)
(3) In pertinent part the section relates to an alien "who is coming
temporarily to the United States to perform other temporary services or
labor, if unemployed persons capable of performing such service or labor
cannot be found in this country;'
(4) In pertinent part the regulation requires that an application for
a change of nonimmigrant classification "shall be accompanied by an
application on Form I-129B made by the alien's prospective employer or
trainer.' (8 CFR 248.3)
(5) The order of the District Director denying the application for a
change of status reads:
An alien who was admitted to the United States as an agricultural
worker under the provisions of the Agricultural Act of 1949, as amended,
not having acquired a nonimmigrant classification under section
101(a)(15) of the Immigration and Nationality Act is ineligible for a
change of nonimmigrant status under section 248 of the Act (Matter of C
, 8 I. & N. Dec. 419).
The Regional Commissioner in affirming the denial stated: "The alien
may not be considered as a nonimmigrant and, therefore, is not in a
nonimmigrant classification.'
(6) The issues have apparently not been the subject of adjudication
by this Board; however, see Matter of G J , 6 I. & N. Dec. 491.
(7) Counsel suggests that if the respondent is deportable at all, the
proper charge would be under section 241(a)(2) of the Act (8 U.S.C.
1251(a)(2)) which requires the deportation of an alien who is in the
United States in violation of the Immigration and Nationality Act or
"any other law of the United States'.
(1) Acknowledgment by the natural father (domiciled in California) of a child born out of wedlock in China in 1946, without bringing the child into his family, is insufficient to effect legitimation under section 230 of the California Civil Code.
(2) Likewise, legitimation has not been effected under Article 1065
of the Civil Code of the Republic of China of 1931, since the earliest
declaration of acknowledgement occurred in January 1961, more than 5
years after the birth of the child (Article 1067), and there is no
evidence of support or maintenance of the child by the putative father
prior to that date.
The case comes forward on appeal from the order of the District
Director, San Francisco District, dated March 28, 1963, denying the visa
petition for the reason that the beneficiary is the petitioner's
illegitimate child and is not a "child' as defined in section 101(b)(1)
of the Immigration and Nationality Act she has not been legitimated
under section 230 of the Civil Code of the State of California in that
the beneficiary has not been received into the petitioner's home in San
Francisco, California or Hong Kong with the petitioner's legal wife,
Chew Lim Wong.
The petitioner, a native of China, 43 years old, male, and a
naturalized citizen of the United States, seeks nonquota status on
behalf of the beneficiary a native and citizen of China, born April 26,
1946. The petitioner was married to Chew Lim Wong, who is presently
residing in the United States and who is a naturalized citizen. The
beneficiary is the illegitimate issue of the petitioner's relationship
with one Kwok Kwai Fong, as is another child, Wong Sui Kuen, who was
born in Hong Kong on September 23, 1961. In an affidavit dated June 5,
1962, the petitioner stated that he had been a resident in the State of
California for more than 20 years past; that he has at all times
treated the beneficiary as his legitimate daughter; that he has just
returned from Hong Kong where he resided with the beneficiary as a
family group. In the brief accompanying the appeal it is stated that
the petitioner visited Hong Kong for the specific purpose of visiting
the beneficiary and his concubine from the latter part of 1960 to the
early part of 1961.
The petitioner's wife, Chew Lim Wong, executed an affidavit on June
5, 1962, in which she states that she is the petitioner's wife; that
she and her husband, the petitioner, have consistently, from the time of
birth of the beneficiary, acknowledged the beneficiary as the true and
lawful daughter of the petitioner; that the said beneficiary has been
received into their family; that the said beneficiary is presently
residing in Hong Kong; that the husband resided with the beneficiary in
Hong Kong recently for a period of approximately six months; and that
the beneficiary is and has been treated by the affiant and her husband
as the legitimated child of the affiant's husband. The mother of the
beneficiary executed a statutory declaration on January 6, 1961, that
the beneficiary is the natural daughter of the petitioner and that he is
now responsible for her custody, maintenance and support.
The petitioner, through counsel, seeks nonquota status on behalf of
the beneficiary as his legitimated child either under Article 1065 of
the Civil Code of the Republic of China of 1931 or under section 230 of
the Civil Code of the State of California. Article 1065 of the Chinese
Civil Code provides that a child born out of wedlock who has been
acknowledged by the natural father is deemed to be legitimate; where he
has been maintained by the natural father, acknowledgement is deemed to
have been established. Article 1067 of the Chinese Civil Code provides
that a mother or other statutory agent of a child born out of wedlock
may claim acknowledgement from his natural father in certain cases,
including where there is the fact that the natural father and mother
cohabited during the period of conception and where paternity can be
proven from documents by the natural father but states that the right of
claim provided in this paragraph is extinguished if not exercised within
five years from the time of the birth of the child. The child in the
present case was born April 26, 1946, but the earliest declaration of
acknowledgement by the putative father is dated January 6, 1961. There
is no evidence of support or maintenance of the child prior thereto.
The burden is upon the petitioner to establish the claimed relationship
and upon the record he has failed to do so.
Legitimation is also claimed under section 230 of the California
Civil Code which provides for the legitimation of an illegitimate child
by a statute entitled "Adoption of an Illegitimate Child,' which has
been construed as a statute of legitimation. This section provides that
the father of an illegitimate child, by publicly acknowledging it as his
son, receiving it as such with the consent of his wife, if he is
married, into his family adopts as such; such child is thereupon deemed
for all purposes legitimate from the time of its birth. The California
courts have held that there are four essential elements needed to
accomplish legitimation under section 230: (1) that the man shall be
the child's natural father; (2) that the man shall have publicly
acknowledged himself to be the child's father; (3) that the man shall
have received the child into his family; and (4) that the man shall
have otherwise treated the child as his legitimate child. /1/
It has been held that acknowledgment without bringing the child into
the family is not sufficient for legitimation. The evidence in the
instant case establishes that the domicile of the father is and has been
the State of California. The father's home is in that state and there
is no evidence that the daughter has been received into the home in
California. At most there is merely an offer to receive the beneficiary
into the petitioner's family. This is not sufficient compliance with
the statute. /2/ It is concluded that the evidence fails to establish
that the beneficiary has been legitimated under section 230 of the
California Civil Code. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Estate of Gird, 157 Cal. 542; Estate of Jones, 166 Cal. 108;
Baird's Estate, 182 Cal. 338; Estate of Flood, 217 Cal. 763; Wong v.
Wonghingyong, 80 Cal.App.2d 453.
(2) Louie Wah You v. Nagle, 27 F.2d 573 (9th Cir. 1928); Gormer v.
Judd, 6 Cal. Unreported Cases 675, 64 P. 1076.
Respondent, a 30-year-old native of Yugoslavia and national of the Dominican Republic, has not established that because he was an officer in the Anti-Communist Foreign Legion organized in the Dominican Republic under Trujillo's dictatorship he would be subject to physical persecution within the meaning of section 243(h), Immigration and Nationality Act, if deported to that country.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) -- Entry
as nonimmigrant, remained longer.
Respondent was an officer in the Anti-Communist Foreign Legion
organized in the Dominican Republic under Trujillo's dictatorship. He
maintains that this former connection with the Trujillo regime would
subject him to physical persecution in the Dominican Republic. On this
ground he applies for withholding of his deportation to that country.
/1/
The special inquiry officer denied respondent's application and
ordered deportation to the Dominican Republic. Respondent appeals from
that denial. We must determine whether respondent's connection with
Trujillo would subject him in the Dominican Republic to hardship which
would amount to the physical persecution the statute contemplates.
Respondent raises several points meriting close consideration. The
nebulous elements in the overall factual situation render difficult an
objective assessment of the likelihood of physical persecution.
Respondent's counsel points out that the special inquiry officer
referred in his opinion to a valid principle of law but applied it
erroneously to respondent's case. Technically, at least, respondent is
correct on this point. Nevertheless, upon close analysis of the whole
record, we reach the opinion that respondent would not now face physical
persecution if deported to the Dominican Republic. Our decision,
therefore, coincides with that of the special inquiry officer.
Respondent is a native of Yugoslavia, 30 years old, and single. The
Trujillo regime granted him Dominican nationality. Respondent left the
Dominican Republic on March 7, 1962 and arrived at Miami, Florida that
same day, entering the United States as a nonimmigrant purportedly in
transit to France. His authorized stay in this country expired on March
9, 1962. Respondent admits that he entered this country intending not
to continue his journey to France. The order to show cause, however,
charged him only with overstaying his authorized time. He concedes
deportability on that charge. Respondent declined to apply for
voluntary departure or to designate a country to which his deportation
should be directed.
Respondent states that he left Yugoslavia in 1956 because he did not
want to live under the Communists. He resided in France until 1959. In
that year he signed a contract with the Dominican Republic's
representatives in France for employment in the Dominican Republic.
Upon his arrival there, instead of employment pursuant to the agreement,
he was ordered into military service. Respondent testified that he
objected to military service but accepted the offer after notification
the alternative to serving in the military forces was imprisonment. He
subsequently attained the rank of first lieutenant.
In 1960 when Trujillo disbanded the Anti-Communist Legion, respondent
transferred to a mountain regiment under the command of Vladimir Secen,
then a lieutenant colonel. Respondent remained in military service
until June 1, 1961, just after Trujillo's death. Colonel Secen, who had
also been respondent's commanding officer in the Anti-Communist Legion,
appeared as a witness for respondent.
This record suggests three possible sources for respondent's physical
persecution in the Dominican Republic -- imprisonment, deportation, or
mob violence. We shall discuss in the order given each of these sources
from two points of view -- respondent's actual experiences while in the
Dominican Republic and his probable experiences if returned to that
country.
Respondent's activities immediately following termination of his
military service are not clear. He testified he was arrested twice,
once in November 1961 and again on December 26, 1961. He was imprisoned
the first time for about eight days and the second until February 7,
1962. Respondent said he was arrested because he was considered a good
friend of Trujillo. He also said the charges were using arms without a
permit, although he was then an army officer required to wear arms, and
being a Trujillo mercenary. Respondent alleges that he was mistreated
in jail but does not describe any abuse. Even if respondent's arrests
had a purely political basis, his imprisonments -- in view of their
relatively short duration and the lack of evidence of actual
mistreatment -- cannot be held to have constituted physical persecution
for purposes of the statute.
The record does not show whether respondent was actually deported
from the Dominican Republic. He testified that shortly after his
release from prison in February 1962 he was taken one night to army
intelligence headquarters. The authorities picked up his passport at
that time and returned it to him the day before he left the Dominican
Republic. When respondent was about to depart, the authorities told him
he would be able to travel to France and gave him a ticket for air
transportation to that country. Such facts are as consistent with an
intention to make some restitution under the breached contract of
employment by returning respondent to France, the country in which the
contract was executed, as they are with an intention to deport
respondent. We shall assume respondent's deportation from the Dominican
Republic, however, in order to consider for our purposes its possible
effect.
The special inquiry officer refers to the legal principle that a
sovereign state has a right to deport undesirable persons. Counsel for
respondent points out that that principle refers to aliens and does not
apply to a national of the country. /2/ He asserts that deportation of
a national from his own country is a most insidious form of physical
persecution cutting him off from friends, family, economic resources,
language, and culture.
Deportation of a national is akin to banishment or exile.
Historically banishment has been recognized at times as a punishment and
at other times as a conditional pardon. The latter concept prevailed in
England where banishment was first known as "abjuration.' The accused
party took an oath to leave the realm and to return only with
permission. This was a conditional pardon rather than punishment. /3/
Whether imposed as punishment or a condition for a pardon banishment has
usually been attended with loss of civil rights. /4/
Respondent has retained his Dominican nationality and the right to
travel on a Dominican passport. In the absence of any evidence to the
contrary, we assume that he has also retained any other civil rights
which attach to Dominican nationality. There is no evidence indicating
respondent is likely to be denaturalized. His case, therefore, is more
akin to "relegation' in old English law, or relegatio of the Roman civil
law, a modified type of banishment (temporary in England) in which the
person retained his rights of citizenship. /5/
Moreover, respondent testified that he requested permission to leave
the Dominican Republic in lieu of remaining there in military service.
He was being returned to France, the country from which he had entered
the Dominican Republic and in which he had sought refuge after leaving
Yugoslavia. Under his theory that his deportation from the Dominican
Republic -- if he was deported -- constituted physical persecution, his
present sojourn in this country must be a form of physical persecution.
His efforts to remain here in lieu of going to any other country,
including the Dominican Republic or France, militate against such a view
of his case.
Respondent's ties in the Dominican Republic are slight. The record
does not disclose that respondent has friends, family, or economic
resources in the Dominican Republic. Respondent himself testified that
the Dominican officers serving in the Army under Trujillo looked upon
him as a foreigner, an alien. Therefore, the special inquiry officer's
position although technically inaccurate, is not so far wrong in
substance. Only if respondent's ties in the Dominican Republic were so
strong as to make enforced absence from that country severe and unusual
hardship might his deportation, or banishment, from the Dominican
Republic constitute physical persecution. For the foregoing reasons we
conclude that even assuming respondent's departure from the Dominican
Republic was equivalent to deportation, he has not suffered physical
persecution thereby.
Information in the record (Ex. 3) indicates the Anti-Communist Legion
was used to oppose the attempted invasion of the Dominican Republic in
1959 by Dominicans seeking to overturn the Trujillo regime. Such
activity, even though coerced, no doubt adds to any unpopularity in the
Dominican Republic of former members of the Anti-Communist Legion
resulting from their association in general with the Trujillo regime.
Respondent has referred vaguely to an inability to move freely about the
streets in the Dominican Republic. We believe these allegations reflect
fear of mob action. His witness, Secen, also referred to danger from
the mobs. Respondent cites no occurrence, however, in which he had any
particular difficulty with a mob in the streets of the Dominican
Republic. We find in this record no evidence that he has suffered
physical persecution in the Dominican Republic from that source
assuming, without deciding, that the statute contemplates physical
persecution can arise from such a source. /6/
We conclude from the discussion thus far of respondent's suggested
sources of physical persecution -- imprisonment for a political offense,
deportation or banishment, and mob violence -- that respondent did not
undergo any physical persecution while residing in the Dominican
Republic. But what if respondent were now to be returned to the
Dominican Republic?
The likelihood that respondent will encounter physical persecution in
the Dominican Republic can be founded only upon existing circumstances
in that country. We take official notice that the executive leaders of
the Dominican Republic's Government have changed since respondent's
hearing. So far as we can ascertain at this time, however, this change
has no material effect in our consideration of respondent's case. If
anything there is less internal tension, at least on the surface, then
there was at the time the special inquiry officer heard respondent's
case.
Respondent testified the authorities informed him that if he returned
to the Dominican Republic he would again be imprisoned. As a mercenary
during Trujillo's dictatorship, even though an unwilling one, respondent
would no doubt be unpopular with many segments of the population as well
as some individuals within the Government. Respondent's position in
that regime, however, was not of a type or significance likely to now
cause lengthy imprisonment or unduly harsh treatment while confined. We
believe that respondent's confinement, if any, would be relatively brief
-- as were his prior imprisonments.
Counsel for respondent mentioned in his memorandum on appeal that he
knows from personal observation that the treatment accorded political
prisoners in respondent's country is not according to our standards of
treatment of prisoners. There is no evidence in the record in support
of this statement, however, and, in particular, no evidence that the
treatment is such that confinement for even a brief period of time might
constitute physical persecution. Moreover, there is no reason to
suppose that the Dominican authorities would not again permit respondent
to leave the country, especially in lieu of serving a lengthy term in
prison.
Failing respondent's departure from the country at his own request,
the authorities might on their own initiative take steps to expel him.
/7/ Respondent contends both that expulsion would be likely to occur and
that it would constitute physical persecution. The special inquiry
officer admits that respondent might be deported from the Dominican
Republic. We concede a fairly high degree of probability for such an
eventuality. For the reasons discussed in considering the circumstances
under which respondent left the Dominican Republic in May 1962, however,
we believe respondent's expulsion from that country would not constitute
physical persecution.
Respondent says that the communistic 14th of June party persecutes
anyone who had belonged to the Anti-Communist Legion. The record does
not specify what form such persecution might take. That party has not
had control of the Government at any time. Probably respondent believes
that the party's adherents would, without governmental sanction, attack
former Legionnaires.
Respondent makes no direct allegation that he would suffer physical
harm at the hands of rioting or demonstrating mobs in the Dominican
Republic. The special inquiry officer states respondent's position is
basically that the current Government in the Dominican Republic would
physically persecute him because of his military employment by the
Trujillo regime. Respondent's counsel does not take exception to that
statement. He frames the issue more broadly, however, in terms of
whether the respondent will receive treatment in the Dominican Republic
which will constitute physical persecution -- without specifying whether
such treatment would come from the Government or some other source.
Thus we do not have sharply defined here the issue raised, but not
determined, in Matter of Diaz -- whether physical harm inflicted upon a
person by a mob acting without governmental sanction, can constitute
physical persecution for the purposes of section 243(h) of the
Immigration and Nationality Act. /8/
As we have noted, however, respondent testified that he could not
walk in the streets. His witness, Vladimir Secen, testified that his
own troubles were with Communist controlled groups on the streets.
Latent in respondent's situation, therefore, lie the queries whether a
mob in the Dominican Republic might physically harm him and, if so,
whether such harm would amount to physical persecution for purposes of
the statute.
Respondent's case, insofar as mob violence might be involved,
corresponds to what we designated as the first situation in Diaz. We
there reserved the question pertaining to that situation -- whether
intentional physical harm inflicted because of past association with the
Trujillo regime or because of antithetic interests by a riotous mob,
acting without the sanction of the Dominican Government, would amount to
physical persecution within the meaning of section 243(h). We again find
that we need not consider the legal import of this question.
Respondent submitted no evidence to corroborate his bare statement
that he would not be able to go out on the streets. The Dominican
newspaper clipping which refers to deportation of four persons from the
Dominican Republic (Ex. 3) is an ordinary news item which makes no
reference to any particularly inflammatory public action or opinion.
Moreover, there is no evidence that the authorities could not adequately
protect respondent by controlling any outbursts of mob violence which
might appear. Instances of mob violence in the Dominican Republic have
diminished. We believe that respondent is not likely to suffer harm
from such a source.
We conclude that respondent is not likely to encounter in the
Dominican Republic any treatment which would warrant withholding his
deportation to that country on the grounds that he would be physically
persecuted there and dismiss the appeal.
ORDER: It is ordered that the appeal by and hereby is dismissed.
(1) Section 243(h), Immigration and Nationality Act, 8 U.S.C. 1253(
h).
(2) The special inquiry officer refers to Lopez v. Howe, 259 F. 401
(C.A. 2, 1919), a case of an alien. In U.S. v. Ju Toy, 198 U.S. 253
(1905) the appellee claimed United States nationality. The Court,
however, three justices dissenting, accepted the administrative
officials' finding of alienage and considered the writ of habeas corpus
on that basis.
(3) 8 C.J.S. p. 593 (1962).
(4) Black L.D., Rapalje and L.L.D. For a discussion of some modern
instances of banishment with historical references see Armstrong,
Banishment: Cruel and Unusual Punishment, 111 U.Pa.L.Rev. 758 (April
1963).
(5) Black L.D., Rapalje and L.L.D.
(6) Compare Matter of Diaz, Int. Dec. No. 1270 (March 20, 1963).
(7) The record is silent as to Dominican law empowering such action.
(8) Supra 6.
Since respondent's entry in transit in pursuit of his calling as a seaman to reship foreign on another vessel constitutes entry as a crewman, he is statutorily ineligible for suspension of deportation and for adjustment of status under sections 244 and 245, respectively, of the Immigration and Nationality Act, as amended.
CHARGE:
Act of 1924 -- Remained longer -- transit.
On February 19, 1963 the Board denied respondent's motion to reopen
proceedings to enable him to apply for relief under sections 244 and 245
of the Act. Reconsideration is requested of the order insofar as it
relates to section 245 of the Act. The motion will be denied.
Respondent, a 43-year-old married male alien, a native of the Cape
Verde Islands and citizen of Portugal, last entered the United States on
December 7, 1947. A seaman employed on an American vessel sold abroad,
he was brought back to the United States in transit so that he could
ship foreign; he was admitted until January 4, 1948, for that purpose.
Unable to obtain employment as a seaman after several months of search,
either because of a strike or because of the fact that he was an alien,
he took a job in the United States.
On March 26, 1952 a hearing officer found respondent deportable on
the ground that he had remained longer than the time for which he had
been admitted. The hearing officer denied discretionary relief. Upon
appeal, the Board considering respondent's request for suspension of
deportation and voluntary departure decided (April 14, 1953) that
suspension was not merited but did grant voluntary departure.
The respondent did not depart. On July 31, 1954 he married a woman
who believing herself to be a citizen of the United States, filed a
petition to enable him to obtain a nonquota visa. The petition was
granted on June 13, 1962 after a delay which had been caused by an issue
raised by the Service as to the wife's citizenship. Respondent then
filed a motion for the reopening of deportation proceedings to enable
him to apply for relief under sections 244 and 245 of the Act. On
February 19, 1963 the Board denied the application for reopening of
proceedings on the ground that the respondent was ineligible for either
of the reliefs. The Board held that since seamen are barred from the
reliefs, and since respondent's entry in transit to ship on another
vessel constituted an entry as a seaman, he was barred.
The provision of law on which the Board based its ruling that
respondent was ineligible for relief under section 244 of the Act
(suspension of deportation) follows:
No provision of this section s/d shall be applicable to an
alien who (1) entered the United States as a crewman; or (2) was
admitted to the United States pursuant to section 101(a)(15)(J) of
this title or has acquired such status after admission to the
United States; or (3) is a native of any country contiguous to
the United States or of any adjacent island named in section 101(
b)(5) of this title: (section 244(f) of the Act).
Counsel contends that respondent was not admitted to the United
States as a crewman but in transit, and is therefore not a crewman
barred from relief. That admission to the United States must be made in
the status of a crewman to bring about an alien's ineligibility for
suspension of deportation, is deduced by counsel from a comparison of
sections 244 and 245 of the Act. That comparison indicates to him that
alien crewmen as a class are barred from relief by section 245 but that
only alien crewmen who were formally admitted to the United States under
the law relating to the admission of alien crewmen are barred from
relief under section 244. Counsel draws this conclusion from the fact
that section 245 of the Act grants relief to one "other than an alien
crewman' whereas section 244 of the Act grants relief unless the alien
"entered the United States as a crewman' (emphasis supplied). Counsel
finds the difference in language of particular significance since in
revising section 244 of the Act (1962) after the phrase concerning
crewmen in section 245 of the Act had been in use since 1960, Congress
did not make use of the language of section 245 of the Act.
Let us examine the contention that the term "entered' in section
244(f) of the Act was used to indicate that an alien had been formally
authorized by the Service to enter the United States as a crewman. The
word "entry' as applied to respondent who was not a returning resident
means any physical passing from a foreign place to the United States
whether legally or illegally made, except a passing under the terms of
the parole (Matter of Anastasopoulos, Int. Dec. No. 1154). There is
nothing in section 244(f) of the Act which requires that the term be
given any but its well recognized meaning; the term thus cannot mean
the formal admission of a crewman as such by a Service official.
That a formal admission of a crewman by the Service was not
contemplated, may be seen from the fact that the very section in
question which makes crewmen who "entered' ineligible provides for the
ineligibility of participants in a Department of State program who were
"admitted to the United States pursuant to section 101(a)(15)(J)' of the
Act (emphasis supplied). The use of the term "entered' for seamen and
the use of the word "admitted' for a different class well disposes of
the argument that Congress intended to bar only aliens who were
"admitted' as crewmen.
Another reason for rejecting counsel's contention that only aliens
who were legally admitted in the status of crewmen are barred from
relief is the fact that such a law would favor the alien who entered
illegally over the one who entered legally. If indeed only an alien who
was "admitted' as a crewman is barred from relief, then the crewman who
entered illegally, i.e., the one ordered detained on board his vessel
who escaped into the United States, would not be barred from relief. It
is hardly likely that Congress intended such a result. Rather, we
believe it was the intent of Congress to bar all occupational seamen who
entered by reason of their occupation. This result would best meet the
problem which faced the Congress -- the fact that seamen who have
relatively easy access to the United States have used the seaman route
to enter the United States for permanent residence -- a problem which
has engaged a good deal of the Service energies and which would be
aggravated if persons having easy access to the United States were of
the belief that they could obtain legal residence by deserting and
hiding out (Hearings, Subcommittee on Appropriations H.R. (Dept. of
Justice) 85th Cong., 2d Sess. pp. 13-14, 199 (1959); 86th Cong., 1st
Sess. pp. 25, 305 (1960); 86th Cong., 2d Sess. pp. 409-411 (1961). In
light of this problem, it matters little that an alien is admitted as a
crewman and deserts his ship, or that he deserted the ship without being
permitted to land as a crewman, or that he, as is common-place, was
brought to the United States as a passenger or workaway to reship as a
seaman on another vessel.
We believe that the respondent is barred from relief because he
entered in pursuit of his calling as a seaman. That he entered by
reason of his occupation is clear from his testimony which shows he
entered the United States to ship out as a seaman (pp. 2-3), by the
record of his entry which shows that he entered as a crew member, that
he was a seaman and was coming to the United States to reship foreign
(Ex. 4), and by the fact the same record shows that for head tax
purposes, respondent was placed under 8 CFR 105.3(k) which dealt with
the nonresident occupational seaman who was entering the United States
temporarily in pursuit of his occupation, or as a passenger or workaway
and who was admitted solely for the purpose of reshipping foreign.
ORDER: It is ordered that the motion be and the same is hereby
denied.
Respondent, who is otherwise qualified, is not precluded from establishing eligibility for suspension of deportation under section 244(a)(1), Immigration and Nationality Act, as amended, by reason of his absence from the United States from May 1960 to August 1960, since under the provisions of section 244(b) of the Act, as amended, the requirement of continuous physical presence is inapplicable to him, having served honorably in an active-duty status in the Armed Forces of the United States from March 1956 to March 1959 following enlistment in California.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Entered without inspection.
The case comes forward pursuant to certification by the special
inquiry officer of his order dated March 29, 1963, ordering that the
deportation of the respondent be suspended under the provisions of
section 244(a)(1) of the Immigration and Nationality Act, as amended.
Discussion As To Deportability: The respondent is a native and
citizen of China, 31 years old, male, married, who first entered the
United States at the port of San Francisco on April 28, 1951, on a false
claim of United States citizenship. He last entered the United States
at Anchorage, Alaska on August 21, 1960, after a brief absence to China
from May 1960 and was again admitted upon his false claim of
citizenship. At the time of his last entry he was not inspected as an
alien. The respondent is subject to deportation on the charge stated in
the order to show cause.
Discussion As To Eligibility For Suspension of Deportation: The
respondent knew at the time he first came to the United States that the
person from whom he was claiming United States citizenship was not in
fact his father. The arrangements for him to come to the United States
were made by his parents. Although the respondent was 19 when he first
entered the United States he attended high school in Sacramento,
California and was graduated. He has been employed in various
capacities in restaurants in Sacramento, California and is presently
employed as a bus boy at $272 per month plus tips. Assets are valued at
$20,000, including $10,000 in cash and the remainder in common stock and
other personal property. He enlisted at Sacramento, California and from
March 29, 1956 to March 25, 1959 he was in active service in the Army of
the United States and served overseas two years and four months. He was
transfered to the Reserve on March 25, 1959, and was honorably
discharged on February 15, 1963. During the respondent's period of
active service in the Army, he was injured and the Veterans
Administration has certified that he has suffered a thirty per cent
degree of disability as a result of a service connected residuals of
cerebral concussion and has awarded him payments of $44 per month
commencing March 26, 1959.
From May 1960 to August 1960 the respondent visited Hong Kong where
he was married on June 23, 1960, to a native and citizen of China, now
27 years old, who still resides there. They have no children. The
respondent's mother, one sister and a brother reside in Macao. One of
his brothers is on the Chinese mainland; another brother, now a lawful
permanent resident, resides in California. The quota for Chinese
persons, to which the respondent is chargeable, is heavily
oversubscribed and the respondent cannot otherwise adjust his
immigration status.
The respondent, has resided in the United States since April 28,
1951. He has been regularly employed in the United States since his
arrival. The respondent served honorably and actively for three years
from March 1956 to March 1959, two years and four months of which were
overseas, and thereafter served in the Army Reserve until February 15,
1963. His deportation could only be effected to Formosa or Macao. The
respondent's adult years have been spent in the United States. In view
of the respondent's residence in the United States since 1951, his
honorable Army service, his service-incurred disability and the fact
that his earning ability has been impaired by his injury, it is
concluded that he would suffer extreme hardship if deported.
A character investigation conducted by the Service and reports of the
Federal Bureau of Investigation and of the local police department
during the past seven years reveal no information adverse to the
respondent. No connection with subversive groups has been shown.
Affidavits of witnesses attesting to his good moral character have been
introduced into evidence. The respondent has established that during
the seven years immediately preceding the date of his application for
suspension of deportation he was and is a person of good moral
character.
Section 244(a)(1) as amended requires that the respondent have been
previously present in the United States for a continuous period of not
less than seven years immediately preceding the date of his application.
The respondent was absent to Hong Kong from May to August 1960.
Section 244(b) of the Immigration and Nationality Act, as amended by
section 4 of the Act of October 24, 1962 (P.L. 87-885) provides that the
requirement of continuous physical presence in the United States
specified in paragraph (1) and (2) of subsections (a) shall not be
applicable to an alien who (A) has served for a minimum period of 24
months in an active-duty status in the Armed Forces of the United States
and, if separated from such service, was separated under honorable
conditions and (B) at the time of his enlistment or induction was in the
United States. The respondent has produced proof that he was honorably
discharged after more than 24 months of active duty service in the Armed
Forces of the United States and that at the time of his entry into the
Armed Forces he was present in the United States. The inclusion in the
benefits of the legislation for aliens who served honorably for a stated
period of time in the Armed Forces of the United States represents the
incorporation into a permanent statute of a policy traditionally adhered
to by the Congress in the enactment of private relief bills for the
alien servicemen and ex-servicemen. /1/ The amendment provides relief
for aliens who served honorably in the Armed Forces of the United
States. /2/ The statutory language is not limited in its application
and would appear to eliminate the requirement of continuous physical
presence in the United States as to honorable discharged servicemen who
served two years and were inducted or enlisted while in the United
States. The respondent falls within the scope of section 244(b) and the
requirement of continuous physical presence of section 244(a)(1) is not
applicable to him. The respondent is eligible for suspension of
deportation under section 244(a)(1) of the Act, as amended. The order
of the special inquiry officer dated March 29, 1963, will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
dated March 29, 1963, granting the application for suspension of
deportation be and the same is hereby affirmed.
(1) 20 Cong.Rec. 22153 (daily ed. October 12, 1962).
(2) 2 U.S. Code Congressional and Adm. News 4029.
Since respondent was represented during the deportation hearing by counsel who had notice of the existence of pre-hearing statements made by a Government witness but did not request that the statements be made available, he is not subsequently entitled to the production of the statements.
CHARGE:
Order: Act of 1952 -- Section 241(a)(6) 8 U.S.C. 1251(a)(6) -- After
entry, an alien who was a member of the Communist Party of the United
States.
Before us are an appeal from the order of the special inquiry officer
requiring respondent's deportation upon the ground stated above and a
motion for the production of documents. The appeal will be dismissed
and the motion denied.
On February 4, 1963, the special inqury officer ordered respondent's
deportation upon the charge stated above. The special inquiry officer
found the charge sustained on the basis of the testimony of Service
witness Fikes. The attorney of record became ill; notice of appeal was
filed by a new attorney who thereafter handled the case. In the notice
of appeal deportability was contested on the ground that the evidence
did not support an order of deportation.
A day after the appeal was filed, counsel filed a motion asking that
the appeal be held in abeyance and that she be furnished with copies of
all statements made by Government witness Fikes to any agency of the
Federal Government. The motion was forwarded to the special inquiry
officer who informed counsel that the record contained no copies of
statements made by Fikes and that the motion was belated since the
proceedings before him had been completed. This motion is now before
us.
Respondent, a 66-year-old married male, a native and last a citizen
of Russia, has resided in the United States since his admission for
permanent residence in 1922. The order of deportation is based on the
finding that respondent had been a member of the Communist Party after
his entry. Counsel raises four main issues; laches, lack of
credibility, meaningfulness of membership, and nonaccess to documents.
The special inquiry officer has dealt in great detail with the facts
of record and we shall state no more than is required to understand the
contentions of counsel.
Deportation hearings required three sessions. At the first (April
13, 1959) counsel conceded the accuracy of all findings of fact
contained in the order to show cause except the one which charged the
respondent with having been a member of the Communist Party after entry.
The respondent refused to be sworn and testify at this session or at
those which followed.
At the second session (May 19, 1959) the Service produced Abraham
Zide who testified he had attended Communist Party meetings with
respondent from the end of 1946 to about August 1948. At the conclusion
of his examination, the Service asked for an adjournment to arrange for
the appearance of another witness. Counsel objected; when he was
overruled he stated that in view of the courtesies which had been
extended to him by the examining officer he would have no objection to
the case going over sine die.
At the third session (November 1, 1962) counsel moved for termination
of proceedings on the ground the Government was guilty of laches. The
motion was overruled. (We believe the special inquiry officer has
adequately discussed this issue.) The testimony of Government witness
Fikes was taken at this session.
Fikes testified that he had joined the Communist Party in Birmingham,
Alabama, in 1949, that in late 1949 or early 1950, he had gone to New
York where a Communist Party representative arranged that he stay with
the respondent, that he stayed about four weeks, that during the stay he
attended four or five Communist Party meetings held at the respondent's
apartment, that respondent presided at the meetings, that respondent
paid Communist Party dues, and that in discussions with the witness,
respondent admitted that he was a member of the Communist Party.
Fikes testified that the Stockholm Peace Petition had been one of the
subjects of discussion at the meetings, that on two or three occasions
between 1953 and 1958, he stayed at the respondent's home in New York,
that he last saw respondent in 1957 when he received a donation for the
Communist Party from him, and when in the respondent's presence and in
respondent's apartment, and after the respondent had helped arrange the
meeting, the witness met on Communist Party matters with Communist Party
officials, Silvia Hall and Jim Jackson (pp. 77-75, 97-98, 104).
Fikes admitted, that in completing a United States Army form which
asked for information concerning Communist Party membership, he had lied
about membership in the Communist Party (p. 79). He testified that he
had been a witness before the grand jury in a case involving the Mine,
Mill and Smelter Workers Union. He stated on cross-examination that
from 1953 to 1958 he had made weekly reports, some oral and some in
writing on Communist Party matters to the Federal Bureau of
Investigation and that some of the reports mentioned respondent (pp.
83-85). At the hearing, counsel did not request production of these
reports, nor did counsel ask for a continuation of the hearing to enable
him to determine whether material existed which would be of use in
cross-examining Fikes.
It is contended that Fikes' testimony is lacking in probity and
reasonableness. Counsel contends that Fikes' testimony that he attended
Communist Party meetings at respondent's home strains credulity because
the Party's concern with membership exposure would have made it unlikely
that a nonmember of a Communist Party would have been invited to attend
Communist Party meetings. We find no merit in this contention. There
is no evidence in the record that a Communist Party member who had moved
from the area where his unit was located and who presumably would be
away from that area for some time would not have been permitted to
attend meetings of other Communist Party units. On the contrary, it
appears to us most likely that arrangements would have been made to
continue Fikes under the direction and discipline of the Communist Party
by requiring him to attend a unit in the place where he found himself.
Counsel contends that meetings at respondent's home were meetings of
members of a furniture workers union who were interested in union
problems. Fikes was a knowledgeable member of the Communist Party: he
had attended a Communist Party school, he had collected Communist Party
dues, he had been the chairman of the Communist Party unit to which he
had belonged in Birmingham, Alabama, he was the liaison man between the
Communist Party and the Mine, Mill and Smelter Workers Union unit there,
he was a member of the Southern Regional Section of the Communist Party
and was sent by the Communist Party of Alabama to New York to represent
them at meetings. Fikes testified that the meetings were Communist
Party meetings composed of persons who were furniture workers; that
Communist Party literature was distributed; that Communist Party dues
were collected; that meetings would be stopped at the prospect of a
person not a member of the Party coming to the apartment (p. 60); and
that the respondent had told him that he was attempting to recruit
furniture workers for the Communist Party (p. 65). The witness knew
that there was a rank and file committee of furniture workers union (p.
99); he knew that the meetings he attended at respondent's home were
not meetings of the rank and file committee (p. 100); and he identified
the meeting as Communist Party meetings, although he was aware that at
the meetings there was discussion of problems confronting the furniture
workers union (pp. 103, 104).
Counsel contends that Fikes' description of what occurred at the
Communist Party meetings he attended is so lacking in details that what
is described is nothing but the general procedure at any Communist Party
club meetings, and could be used by Fikes to place himself at any
Communist Party meeting he desired to testify about. The contention is
without merit. Fikes testified in 1962 about meetings which had
occurred some 12 years previously. He knew they were Communist Party
meetings; he placed the respondent at these meetings; he stated that
the respondent's wife would check on persons coming to determine if they
were communists and eligible to attend the meeting. Neither of the
persons specifically mentioned contradicted this testimony. It is
understandable that the specific details of matters handled at these
meetings cannot be given at this date. The special inquiry officer who
had the opportunity to observe Fikes testify, found him credible. After
careful review of the record we find the witness credible, and accept
his account of attendance at Communist Party meetings with the
respondent.
Fikes testified that one of the items considered at the Communist
Party meetings in respondent's apartment was the Stockholm Peace
Petition. Counsel drawing upon matter not in the record contends that
the petition could not have been discussed at these meetings which Fikes
stated occurred in late 1949 or early 1950 because the Stockholm Peace
Appeal was first passed in March 1950 and circularization of petitions
started at the end of May or beginning of June 1950. Counsel has not
asked for a reopening of proceedings to cross-examine the witness on the
basis of this information. For the sake of argument we shall assume
that the facts alleged by counsel concerning the petition could be
established at the hearing. Since the witness revealed his uncertainty
about the exact period of time that he lived with the respondent,
placing it as late 1949 or early 1950, it is not significant that he
could have been in error a month or two concerning the period he spent
with the respondent. In any event, discussions which may have taken
place in April to June 1950 could well fall within Fikes' testimony that
the meetings could have taken place in early 1950. In view of this fact
and nothing that counsel does not request reopening of proceedings to
cross-examine Fikes on this matter and give him a chance to explain the
conflict if any, we do not believe that Fikes' credibility is lessened.
Counsel contends that the respondent, a person of mature years, would
not have divulged Communist Party membership to Fikes, then a youth.
There would appear to be no reason for concealing the fact of membership
if Fikes was considered a proper person to invite to the Communist Party
meetings in respondent's home.
Counsel takes issue with Fikes' designation of a social affair as a
closed one on the ground the record clearly establishes that admission
was open to anyone who paid the admission price. Fikes' testimony is
that the dance was open only to individuals who were members of the
Party, even though tickets were sold (pp. 66-67, 94-96). We do not find
it clearly established the meeting was open to the general public.
Fikes denied that it was so open.
Counsel contends the Service has failed to carry its burden of proof
that respondent was a member of the Communist Party and that membership
was meaningful. We believe that the fact of membership is established
by the testimony of Fikes. As to meaningfulness, Fikes' testimony --
that the respondent acted as chairman at meetings, that unwanted people
would have been prevented from attending, that he attempted to recruit
people for the Communist Party (p. 65) and that the respondent with his
wife attended a special meeting at which Fikes made a report on
activities of the Party for the South, and that respondent was active in
arranging the meeting (p. 74) -- reveals more than a nominal membership.
The appeal will be dismissed.
Counsel requests that if the appeal is not sustained, that his motion
be granted. The motion is not for reopening of proceedings but that
respondent be furnished with copies of statements, memoranda and reports
made by Fikes to the Service and other Federal agencies relating to the
respondent. In particular all reports relating to the respondent's
whereabouts in 1949, 1950 and 1957 are requested. At oral argument,
counsel stated that she would be satisfied if the information was made
available to the special inquiry officer presumably for disposition in
the spirit of 18 U.S.C. 3500.
The request for reports relating to the whereabouts of Fikes is
occasioned by the fact that Fikes testified, at the deportation hearing,
that late in 1949 or early 1950 (pp. 52, 57, 67, 102) he spent four
weeks with the respondent in New York, and that this testimony is in
conflict with testimony counsel now presents which shows that at a trial
in November 1959 in Denver, Fikes testified that from about the summer
or fall of 1949 until about the fall of 1950 he had been a member of the
Communist Party club in Birmingham, Alabama, and had apparently spent
his time in Birmingham during this period. Counsel also cites from the
report of an FBI agent on the same trial that Fikes had informed him
that he came to Birmingham in 1950 and joined the Communist Party there
and counsel contrasts this with Fikes' testimony at the deportation
hearing that he came to New York City in late 1949 or early 1950 and
remained until January 1951 at which time he returned to Birmingham and
entered the United States Army.
Counsel has not requested the right to cross-examine the witness on
either of these matters. On this record we do not find that a conflict
of a serious nature exists. At the deportation hearing, Fikes testified
that he remained in Birmingham, Alabama, to late 1949 or early 1950;
the transcript of trial testimony merely reveals that it was around the
fall of 1950 that he had left Birmingham rather than early 1950 as his
deportation testimony indicates it could have been. But it is not clear
from the trial testimony that Fikes actually left Birmingham late in
1950; the trial testimony reveals that Fikes was uncertain as to the
time he left Birmingham, indicating that it was "sometime in 1950' and
that the best he could recall was that it had happened in the fall. As
to the report of the FBI agent that Fikes stated he joined the Communist
Party in 1950 in Birmingham we do not see how Fikes can be held
responsible for the agent's testimony. The FBI report is in conflict
with Fikes' own testimony at the trial that he had joined the Communist
Party in Birmingham in the summer or fall of 1949 and if the quotation
furnished by counsel is accurate, it shows the respondents as having
attended a Communist Party school in New York in 1941 (the respondent
attended in 1949).
The request for production of reports made by Fikes concerning the
respondent must be denied. As the Service representative has pointed
out, counsel who represented the respondent at the hearing had notice of
the existence of the report (pp. 83-84) but did not request that
"statements' be made available. Respondent is, therefore, not entitled
to the production of the statements. Ogden v. United States, 303 F.2d
724, 733, 9th Cir., and cases cited in footnote 27.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that the motion for production of documents be
and the same is hereby denied.
A divorce decree granted in absentia in Hungary in 1962 to two
nationals of that country then domiciled and physically present in New
York is, in the exercise of comity, recognized as valid by the State of
New York where the marriage occurred in Hungary and both parties entered
appearance through counsel.
The petitioner, a native and national of Hungary, has resided in the
United States since her admission for lawful permanent residence at the
port of Newark, New Jersey on December 31, 1956. She seeks third
preference classification under section 203(a)(3) of the Immigration and
Nationality Act (8 U.S.C. 1153(a)(3)) for her spouse, a native of
Germany, whom she married at New York City on August 2, 1962.
The District Director at New York denied the petitioner's application
on the ground that a Hungarian divorce decree dissolving a former
marriage of the petitioner is a nullity because it was obtained in
absentia while both the plaintiff and the defendant (the petitioner
herein) were domiciled and physically present in the State of New York.
The petitioner appeals from the District Director's decision that she is
not the lawful spouse of the beneficiary for immigration purposes.
The facts concerning the petitioner's marital status are as follows.
She married one Laszlo Deme at Budapest, Hungary on August 2, 1955.
They emigrated to the United States in the winter of 1956 and became
residents of the City of New York in the spring of 1957. The petitioner
separated from her Hungarian spouse in the fall of 1960. The plaintiff
husband filed an action for a divorce in the Central District Court at
Budapest, Hungary in February of 1962.
The divorce decree, dated April 24, 1962, discloses that the
plaintiff husband and defendant wife (petitioner herein) entered their
appearance in the Hungarian court through counsel; that evidence in the
form of affidavits was presented to the court; that the defendant wife
raised no objection to dissolving the marriage; and that neither of the
parties appeared before the Hungarian court during the divorce
proceeding. It appears that the Hungarian court assumed jurisdiction of
the parties on the ground that Budapest was the situs of the marital res
by reason of the marriage in that city on August 2, 1955 and the fact
that the appearance was voluntary on the part of both parties who were
then nationals of Hungary.
The issue before us is whether the marriage of the petitioner and the
beneficiary at New York City on August 2, 1962 is a valid marriage for
immigration purposes in light of the facts set forth above. The
validity of a marriage for immigration purposes is governed by the law
of the place of celebration, in this case the State of New York. Matter
of P , 4 I. & N. Dec. 610, A.G., March 18, 1962.
The District Director concludes that under the Civil Practice Act of
the State of New York /1/ the Supreme Court has exclusive jurisdiction
of matrimonial actions, that adultery is the only ground for an absolute
divorce and that the statute has certain jurisdictional requirements
with regard to the residence of the defendant and the service of the
complaint which were not met in the instant case.
We agree with the District Director that the Civil Practice Act of
the State of New York controls with regard to whether the State of New
York is required to accord recognition under the full faith and credit
clause of the Constitution to a divorce decree awarded by another state
to a party or parties domiciled in the State of New York. Cf. Glaser v.
Glaser, 376 N.Y. 296, 12 N.E.2d 305. However, when dealing with a
divorce granted by the court of a foreign country, the full faith and
credit clause of the Constitution does not apply and the question is
solely one of comity. Gould v. Gould, 235 N.Y. 14, 138 N.E. 490, C.A.
N.Y., 1923.
The courts of the State of New York in the exercise of comity have on
several occasions recognized foreign divorce decrees where there is a
showing, as in the case before us, that the foreign court assumed
jurisdiction over the marital res by reason of the fact that the
marriage had been celebrated within the jurisdiction of the court and
over the parties by reason of their voluntary appearance and joinder
although they were never physically before the foreign court and at
least one of the parties continued to be a resident of the State of New
York. /2/ The Supreme Court of New York held in the Hansen case (supra
/2/ ) that notwithstanding the fact that the parties (husband and wife)
were not residing in Denmark at the time the petition for a divorce was
filed or at the time it was granted, nevertheless, the judgment of the
Danish court dissolving the marriage was entitled to full faith and
credit by the courts of the State of New York because Denmark was the
situs of the marital domicile and the parties voluntarily submitted to
the jurisdiction of the Danish court.
The Oettgen case is directly in point with the case before us. The
issue before the New York court concerned the validity of a German
divorce decree granted in absentia to aliens who were residing in the
State of New York. The plaintiff wife, a native of Denmark, became a
German national upon her marriage to a national of Germany at Hamburg on
December 22, 1926. They entered the United States with permanent
resident visas on or about December 11, 1928. Thereafter, a divorce
action was filed in the Supreme Court of Hamburg, Germany. Both parties
were represented by counsel. The testimony was in the form of
affidavits taken at New York City where both parties were then residing.
The Supreme Court for New York County noted in their decision that
the lack of domicile in Germany is not necessarily a bar to recognition
of a foreign decree by the courts of New York, citing Gould v. Gould
(supra). The court held that the law and public policy of New York
State would not be offended by recognizing the German decree because it
was granted "by a jurisdiction where the parties were married and of
which they remained nationals. It does not shock the conscience to
conclude that people who marry under a certain set of laws may expect to
be bound only so long as that set of laws required it . . . We are not
here dealing with a "mail order' divorce granted by a country having no
relationship to the parties' marital status.' Oettgen v. Oettgen, 94
N.Y.Supp.2d at p. 172.
The United States Court of Appeals for the Second Circuit had before
it the validity for immigration purposes of a divoree obtained by a
Pakistani national residing in New York City from his wife then residing
in Pakistan. The divorce decree was awarded by the Director of the
National Islamic Mission in the United States, one Reverend Sheikh
Faisal, "in accordance with the courts of Islam (and in accordance) with
the laws of the Government of the United Sates of America.'
The court in ruling that the divorce would not be recognized as valid
in New York State made this comment: "We . . . believe that the
purported divorce in the case at bar could be valid only when granted in
Pakistan.' The court in support of this statement cited the New York
case relied upon in this decision (see /2/ ). The court noted that
although the parties concerned were physically present in the United
States at the time the divorces were granted nevertheless the validity
of the decrees were acknowledged for the reason that the marriages had
been performed within the jurisdiction of the foreign courts and the
parties were still nationals of the country in which the foreign courts
were located. (Shikoh v. Murff, 257 F.2d 306, C.A. 2, 1958)
We conclude on the basis of the foregoing authority that the
Hungarian decree of divorce would be recognized as valid under the laws
of the State of New York and as a necessary corollary thereof, that the
marriage between the petitioner and the beneficiary in this proceeding
will support an application for third preference classification under
section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(
a)). An appropriate order will be entered.
ORDER: The order entered by the District Director at New York on
December 5, 1962 denying the petitioner's application for third
preference classification under section 203(a) of the Immigration and
Nationality Act is hereby withdrawn.
It is further ordered that the appeal be and the same is hereby
sustained; the petition filed in behalf of Rainer E. Koehne is hereby
approved for third preference classification pursuant to section 203(a)
of the Immigration and Nationality Act (8 U.S.C. 1153(a)).
(1) Section 1147 of the Civil Practice Act, State of New York,
provides in substance that an action for divorce on the ground that the
defendant committed adultery will lie (1) where both parties are
residents of the state in which the offense was committed (2) where the
parties were married in the State of New York (3) where the plaintiff
resided in the state when the offense was committed and is a resident
thereof when the action is commenced (4) where the offense was committed
within the state and the injured party when the action is commenced is a
resident of the state.
(2) Hansen v. Hansen, 8 N.Y.Supp.2d 655, S. Ct., Appellate Div.,
December 31, 1938; Weil v. Weil, 26 N.Y.Supp.2d 467, Domestic Relations
Court, City of New York, 1941; Oettgen v. Oettgen, 94 N.Y. Supp.2d
168, S. Ct. Special Term, New York County, 1949.
An alien convicted in 1956 of unlawful possession of marihuana in violation of section 4, paragraph 1, of the Opium and Narcotic Drug Act of Canada, is deportable under section 241(a)(11) of the Immigration and Nationality Act, as amended by the Act of July 14, 1960. /*/
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at entry, section 212(a)(23) -- Convicted of violation of law relating to illicit possession of narcotic drugs -- Section 4, paragraph 1, of the Opium and Narcotic Drug Act, R.S.C. 1952, C. 201 and amendments -- Canabis sativa (marihuana).
Lodged: Act of 1952 -- Section 241(a)(11) 8 U.S.C. 1251(a)(11) --
Convicted at any time of violation of law or regulation relating to
illicit possession of marihuana -- Section 4, paragraph 1, of Opium and
Narcotic Drug Act of Canada, R.S.C. 1952, C. 201 and amendments.
The case comes forward on appeal from the order of the special
inquiry officer dated February 8, 1963 ordering that the respondent be
deported to Canada on the lodged charge.
The record relates to a native of Hungary, a citizen of Canada, who
last entered the United States at Highgate Springs, Vermont on or about
August 4, 1959. On August 1, 1956 he was convicted in the District of
Montreal, Province of Quebec, Canada of the crime of unlawful possession
of a narcotic drug, marihuana, otherwise known as canabis sativa, in
violation of section 4, Paragraph 1 of the Opium and Narcotic Drug Act,
R.S.C. 1952, C. 201, and amendments, and was sentenced to serve a term
of imprisonment for six months.
Deportability is sought under section 241(a)(11) of the Immigration
and Nationality Act as amended by section 9 of the Act of July 14, 1960
which amended the Act to include illicit possession of marihuana and to
provide specifically for the deportation from the United States of a
person who had been convicted under any law or regulation relating to
the illicit possession of marihuana. The record establishes that the
respondent has been convicted of a law relating to the illicit
possession of marihuana. Counsel, however, argues that the law is an ex
post facto law and therefore unconstitutional and urges that the
proceedings be terminated because Congress in enacting the law intended
to render deportable a person only if he had been convicted of violation
of such law after July 14, 1960. Since the respondent had been
convicted on August 1, 1956, and not after entry, counsel contends that
the charge must fail.
Section 241(a)(11) of the Immigration and Nationality Act as amended
by the Act of July 14, 1960 provides for the deportation of any alien in
the United States who "is, or hereafter at any time after entry has
been, a narcotic drug addict, or who at any time has been convicted of a
violation of, or a conspiracy to violate, any law or regulation relating
to the illicit possession of or traffic in narcotic drugs or marihuana *
* *'. The Report of the Senate to accompany House Joint Resolution 397,
of which the amended statute was a part, shows that the purpose of the
Joint Resolution was to clarify the legislative intent expressed in
sections 212(a)(23) and 241(a)(11) of the Immigration and Nationality
Act providing, respectively, for the exclusion and deportation from the
United States of aliens convicted of a violation of narcotic laws. /1/
The comment of the Acting Secretary of the Treasury dated January 13,
1960 was to the effect that there can be no valid distinction for the
deportation or exclusion of an alien who has been convicted of the
illicit possession of narcotic drugs (which is now the law) and not such
a provision for an alien who has been convicted of the illicit
possession of marihuana; aliens who are convicted of violation of
narcotic or marihuana laws should be excluded or subject to deportation.
A letter from the Deputy Attorney General dated January 13, 1960,
expressing the views of the Department of Justice, refers to the
decisions of the United States District Court for the Southern District
of California in Mendoza-Rivera v. Del Guercio, 160 F.Supp. 473 and
Rojas-Gutierrez v. Hoy, 161 F.Supp. 448, approved 260 F.2d 457 and 260
F.2d 490 respectively, stated that the bill would amend existing laws,
sections 212(a)(23) and 241(a)(11), to the end that a conviction of an
alien for a violation of any law relating to illicit possession of
marihuana shall render him excludable or deportable. In a subsequent
analysis of the Joint Resolution it was pointed out that sections 8 and
9 of the Joint Resolution as amended would amend section 212(a)(23) and
section 241(a)(11) of the Immigration and Nationality Act to make it
certain that a conviction of an alien for violation of any law relating
to illicit possession of marihuana shall render him excludable or
deportable. /2/
The Statement of the Managers on the part of the House refers to the
fact that House Joint Resolution 397, as amended, also includes the
provisions of the House Bill strengthening our antinarcotics laws in
providing for mandatory exclusion and deportation of aliens who engage
or have engaged in trafficking of marihuana. /3/
The punctuation of the statute clearly shows an intent on the part of
the Congress to confine the reference to the phrase "after entry' to the
narcotic drug addict but there is no reference to the phrase "after
entry' in that portion of the statute wherein the Congress is concerned
with a person who has been convicted "at any time' of certain
violations. Both the statutory language and the legislative history
clearly manifest an intention on the part of the Congress to render
deportable an alien who at any time had been convicted of violation of
the law relating to illegal possession of marihuana, whether that
conviction had occurred before, on or after the alien's entry into the
United States. In omitting any reference to a conviction after July 14,
1960, there was clearly manifested an intention to render deportable an
alien whose conviction had occurred prior to July 14, 1960. The
respondent's conviction falls squarely within the terms of section
241(a)(11) of the Immigration and Nationality Act and the respondent is
deportable as charged.
Counsel's argument that conviction must occur subsequent to the date
of the amendment is accordingly rejected. This is not the proper forum
to contest the constitutionality of the law. The respondent declined to
apply for discretionary relief. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(*) Order of deportation affirmed, Gardos v. Immigration and
Naturalization Service, 324 F.2d 179 (C.A. 2, 1963).
(1) Senate Report No. 1651 (86th Cong., 2d Sess.) p. 3.
(2) Idem pp. 21-22, 27.
(3) House of Representatives Report No. 2088 (86th Cong., 2d Sess.)
p. 2.
A person born in Puerto Rico on October 4, 1931, of a native-born Spanish citizen father and a Cuban citizen mother who came to Puerto Rico in 1913 and 1922, respectively, who, shortly after birth, was taken by her parents to Spain where she resided until her entry at San Juan, P.R., on May 17, 1957, was issued a national document of identity as a Spanish citizen in 1952 and was issued a Spanish passport, was a national or citizen of Spain at birth under the provisions of Article 17 of the Civil Code of Spain, as amended by the Act of December 9, 1931; therefore, she did not acquire United States citizenship under the provisions of section 5b of the Act of March 2, 1917, as amended by the Act of June 27, 1934, since she was a citizen or national of a foreign power (Spain) residing abroad permanently on June 27, 1934.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(A)(1) --
Excludable at time of entry under section 212(a)(20) 8 U.S.C. 1182(a)(
20) ; immigrant, no visa.
The case comes forward on appeal from the order of the special
inquiry officer dated November 6, 1962 finding the respondent to be an
alien and ordering that she be deported to Spain on the charge contained
in the order to show cause.
The facts of the case are not in dispute. The record relates to an
unmarried female who was born in Manati, Puerto Rico on October 4, 1931.
She last entered the United States at San Juan, Puerto Rico on May 17,
1957 in possession of United States Passport No. 471 issued at Madrid,
Spain on May 8, 1957 and was admitted as a United States citizen. At
the time of her entry she possessed no immigration document other than a
Spanish passport which had been issued to her on May 14, 1957 at Madrid,
Spain showing her nationality as "Spanish by origin.' She testified at
the original hearing on May 29, 1958 that she applied for a Spanish
passport after she had received her United States passport because she
was required to do so by the Spanish police before she could obtain
permission to leave Spain (pp. 12 & 13). At the time of her last entry
she intended to reside permanently in the United States.
The respondent and her parents left for Spain shortly after her birth
and the respondent resided in that country until her entry at San Juan,
Puerto Rico on May 17, 1957. During that period of approximately 26
years her father had died in Spain in September 1937 and the respondent
and her family continued to reside in that country where the respondent
obtained her schooling and employment.
The respondent testified that her father was a citizen of Spain and
never had or acquired any other nationality and that her mother was a
citizen of Cuba at the time of the respondent's birth and acquired no
other nationality except possibly that of Spain by virtue of her
marriage. The mother stated that the respondent's father, Luis Cueto
Ibanez, first came to Puerto Rico about 1913 or 1914; that she arrived
in Puerto Rico on January 1, 1922 ex SS. Magallanes accompanied by her
husband and that they remained until 1931, subsequent to the birth of
the respondent. The mother testified that between April 11, 1899 and
April 12, 1900 she resided in Spain (Ex. 4).
The Service obtained a certified copy of the affidavit contained in
the respondent's passport file executed by her at the American Embassy
at Madrid, Spain on July 11, 1956 in the course of which she stated that
she had obtained National Document of Identity No. 2809982 issued to her
on January 14, 1952 by the Direction General of Security, Madrid, Spain
to enable her to travel within Spain. The discovery that the respondent
had been issued a national document of identity as a Spanish citizen on
January 14, 1952 prompted the special inquiry officer to grant a Service
motion to reopen on the basis of new evidence after an earlier decision
of another special inquiry officer dated August 19, 1958 had terminated
proceedings on the ground that the respondent acquired United States
citizenship under the provisions of the Act of March 2, 1917 as amended
by the Act of June 27, 1934 and that respondent's alienage had not been
established. In granting the motion to reopen the special inquiry
officer observed that the better procedure might have been to institute
a new deportation proceeding by way of a new order to show cause and to
submit all the prior evidence in the new proceeding. Inasmuch as the
evidence adduced at the prior hearing and at the reopened hearing have
been considered by the special inquiry officer in reaching his decision,
and in the absence of any objection to the grant of the motion to reopen
by counsel, it is believed that due process has been observed and that
the failure to issue a new warrant does not vitiate the proceeding. /1/
The special inquiry officer, in a long and thorough decision, has set
forth the treaties and statutes relating to acquisition of United States
citizenship by a person born in Puerto Rico and no purpose would be
served by repeating them at length. We shall however set forth the
provisions of section 5 and section 5b of the Act of March 2, 1917 as
amended by June 27, 1934 and Article 17 of the Civil Code of Spain as
amended by the Act of December 9, 1931. The former provides as follows:
Section 5. That all citizens of Puerto Rico as defined by
section seven of the Act of April twelfth, nineteen hundred . . .
and all natives of Puerto Rico, who were temporarily absent from
that island on April eleventh, eighteen hundred and ninety-nine,
and have since returned and are permanently residing in that
island, and are not citizens of any foreign country, are hereby
declared, and shall be deemed and held to be citizens of the
United States . . . (8 U.S.C. 5). (Emphasis supplied.)
Section 5b (added by the Act of June 27, 1934). All persons
born in Puerto Rico on or after April 11, 1899 (whether before or
after the effective date of this Act) and not citizens, subjects,
or nationals of any foreign power, are hereby declared to be
citizens of the United States: Provided, That this Act shall not
be construed . . . to extend such citizenship to persons . . .
who are now residing permanently abroad and are citizens or
subjects of a foreign country . . . (Emphasis supplied.) (48 U.
S.C. 733b)
The Civil Code of Spain, as amended by the Act of December 9, 1931
provides as follows:
Article 17. The following persons are Spanish nationals: . .
. (2) A person whose father or mother is a Spanish national, even
if that person was born outside of Spain. (Laws Concerning
Nationality, United Nations Legislative Series, ST%lEG/SER. B/4,
1954, Page 437).
It is clear at the outset that the respondent's father, who was a
nativeborn Spanish citizen and who did not come to Puerto Rico until
1913 or 1914, did not acquire Puerto Rican nationality or United States
citizenship; neither did respondent's mother. There is no question
then of derivative citizenship through either parent. The respondent,
who was born in Puerto Rico after April 11, 1899, to wit, on October 4,
1931, was at birth a Spanish national under Article 17 of the Civil Code
of Spain and does not qualify either under section 5 or section 5b of
the Act of March 2, 1917 since she was a citizen or national of a
foreign power, namely, Spain. /2/ It may be noted that birth in Puerto
Rico prior to January 13, 1941 did not result in vesting of United
States citizenship under the provisions of section 202 of the
Nationality Act of 1940 or its successor statute, section 302 of the
Immigration and Nationality Act, if the person so born was not actually
or constructively a resident of Puerto Rico on January 13, 1941. /3/ It
is quite clear that the respondent and her family abandoned their
residence in Puerto Rico in 1931 and resided in Spain thereafter, with
the intention and the actual effect of taking up permanent abode there.
The respondent was never prevented from returning to her residence in
Puerto Rico and did not have any constructive residence in Puerto Rico.
For that reason she does not fall within the scope of section 202 of the
Nationality Act of 1940 or section 302 of the Immigration and
Nationality Act.
The respondent's father did not reside in Puerto Rico on April 11,
1899 or at any time prior to 1913. Therefore, he did not acquire any
claim to United States nationality under Article 9 of the Treaty of
April 11, 1899 or to Puerto Rican nationality under the provisions of
section 7 of the Act of 1900. The respondent's father could not have
opted to retain Spanish nationality because that option could only be
exercised by Spanish subjects, natives of the Spanish peninsula,
residing in Puerto Rico on April 11, 1899, not by those, like the
respondent's father, who became residents thereafter. Those born after
the date of April 11, 1899, whose parents had opted their Spanish
nationality, were clearly not United States nationals or citizens. /4/
Counsel has cited section 10 of the Political Code of Puerto Rico of
1902 and Article IX, section 5 of the Constitution of the Commonwealth
of Puerto Rico to buttress his argument that the respondent at least
acquired Puerto Rican nationality, if not United States citizenship.
The United States citizenship or nationality of natives of Puerto Rico
is effected only through the Treaty of April 11, 1899 between the United
States and Spain and the applicable statutes, such as the Act of April
12, 1900, the Act of March 2, 1917, as amended by the Act of June 27,
1934, section 202 of the Nationality Act of 1940 and section 302 of the
Immigration and Nationality Act. Hence, no Puerto Rican law or
constitutional provision in derogation of or contradiction of any United
States treaty or statute is effective. /5/
By virtue of the provisions of Article 17 of the Civil Code of Spain
as amended by the Act of December 9, 1931, the issuance to her of a
national document of identity as a Spanish citizen as early as January
14, 1952, which she admitted in her affidavit of 1956 executed before
the United States Consul at Madrid, and the issuance to her of a Spanish
passport, the respondent was a citizen of Spain at birth. Inasmuch as
she was a citizen, subject or national of a foreign power, to wit,
Spain, residing abroad permanently on June 27, 1934, she did not acquire
United States citizenship on that date by virtue of the provisions of
section 5b of the Act of March 2, 1917 as amended by the Act of 1934.
The respondent could have acquired United States nationality or
citizenship by virtue of birth in Puerto Rico under no other provision
of law. Hence, the respondent is an alien and is deportable as charged
in the order to show cause. The attorney has specifically declined to
request the privilege of voluntary departure. The order of deportation
entered by the special inquiry officer is the only order possible under
the circumstances.
ORDER: It is ordered that the appeal from the order of the special
inquiry officer dated November 6, 1962 be and the same is hereby
dismissed.
(1) Ex parte Guest, 287 F. 884 (D.C. R.I., 1923); Valerio v. Mulle,
148 F.Supp. 1946 (1956); Pinciro-Lopez v. Kennedy, 293 F.2d 540 (1961);
Matter of C , 4 I. & N. Dec. 415.
(2) Cf. Conrad v. Dulles, 155 F.Supp. 542 (D.C.P.R., 1955).
(3) Puig Jimenez v. Glover, 255 F.2d 54 (1 Cir., 1953).
(4) Conrad v. Dulles, 155 F.Supp. 542; Matter of O M , Int. Dec.
No. 1124.
(5) Puerto Rico v. Shell Co., 302 U.S. 253: Downes v. Bidwell, 182
U.S. 244 (1901).
Physical persecution within the meaning of section 243(h), Immigration and Nationality Act, has not been established by a native and citizen of Greece on the basis of a claim of prosecution or other official opposition which might result from his religious activities (proselytism) in Greece as a Jehovah's Witness.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer.
Respondent, a native and national of Greece who last entered the
United States on July 15, 1960 as a nonimmigrant crewman, is 23 years
old and married to a citizen of the United States. He concedes
deportability as charged.
At the original hearing the special inquiry officer directed
deportation to Germany, the country elected by respondent, with an
alternate order of deportation to Greece. Respondent did not have
counsel at that hearing but subsequently appealed through his present
counsel. That appeal sought an adjudication of respondent's eligibility
for withholding of deportation under section 243(h) of the Immigration
and Nationality Act, although no application for such relief had been
filed. Our order of July 11, 1962 directed reopening of the proceedings
to afford respondent an opportunity to apply under the provisions of
that section and to submit supporting evidence.
The special inquiry officer, after further hearing, denied
respondent's application for withholding of deportation and again
ordered deportation to Germany or alternatively to Greece. Respondent
appeals from the denial of the benefits of section 243(h). We concur in
the conclusion of the special inquiry officer.
Respondent testified that since arriving in this country he has
become a member of Jehovah's Witnesses. Communications from ministers
of that sect corroborate such membership. The record contains a letter
to respondent and his wife from the presiding minister of Jehovah's
Witnesses in Greece, which inter alia states that section 1 of the Greek
Constitution provides that the dominant religion in Greece is the
Eastern Orthodox Church of Christ, that any other religion is free to
perform its worship rites without hindrance under the protection of the
laws, but proselytism and any other interference with the dominant
religion is forbidden. A letter to respondent's wife from the
Watchtower Bible and Tract Society sets forth that certain members of
the Jehovah's Witnesses in Greece have been charged with proselytism and
punished with imprisonment of up to five months and fines. A number of
other Witnesses are reported to have been brought before the courts
during the periods September through November 1961 and February through
April 1962, but discharged.
Respondent indicates that if returned to Greece he would go from door
to door interpreting the Bible and delivering literature setting forth
the tenets of Jehovah's Witnesses. He maintains that he would be
subject to imprisonment for such activities.
Respondent's counsel contends that special inquiry officer erred as a
matter of law by failing to recognize that, under judicial and
administrative precedents continement on religious grounds constitutes
physical persecution within the meaning of the statute. Blazina v.
Bouchard, 286 F.2d 507 (C.A. 3, 1961) cert. den. 366 U.S. 950 (1961);
Kalatjis v. Rosenberg, 305 F.2d 249 (C.A. 9, 1962); Diminich v.
Esperdy, 299 F.2d 244 (C.A. 2, 1961) cert. den. 369 U.S. 844 (1962),
which refers to Matter of Kale, A-9555532 (1958). As we read the
special inquiry officer's opinion, however, he does not rule out as a
matter of law confinement on religious grounds as a possible instance of
physical persecution. The special inquiry officer notes that the
general freedom of religion in Greece is subject only to the limitation
that proselytism for faiths other than the Eastern Orthodox is
forbidden. He notes also that respondent expects, if deported to
Greece, to engage as a Jehovah's Witness in proselytism and to be
arrested and possibly prosecuted in the courts for such proscribed
activity. Weconsider the special inquiry officer ruled only that under
these particular circumstances the arrest and confinement to which
respondent may be subject would not constitute physical persecution
despite the religious issue.
In this country the proselytizing activities of Jehovah's Witnesses
are held in general to come within the protection of the constitutional
guarantees of freedom of religion, speech, and the press. Lovell v.
Griffin, 303 U.S. 444 (1938); Murdock v. Commonwealth of Pennsylvania,
319 U.S. 105 (1943); Martin v. Struthers, 319 U.S. 141 (1943);
Nietmotko v. Maryland, 340 U.S. 268 (1951). These rights are not
absolute however. Schneider v. Irvington, 308 U.S. 147 (1939). A few
cases have upheld particular applications of the police power
restricting such rights. Cox v. New Hampshire, 312 U.S. 569 (1941);
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); People v. Bohnke, 287
N.Y. 154, 38 N.E.2d 478 (1941), cert. den. 316 U.S. 667 (1942). The
Supreme Court has said that the First Amendment has two aspects --
freedom to believe and freedom to act, the first being absolute but the
second subject to regulation for the protection of society. Cantwell v.
Connecticut, 310 U.S. 296, 303, 304 (1940).
The Court ruled in Murdock that a nondiscriminatory tax on
distribution of literature was invalid when applied against Jehovah's
Witnesses. Martin v. Struthers invalidated an ordinance forbidding
knocking on the door or ringing the doorbell of a residence in order to
deliver a handbill as applied against handbills distributed on behalf of
Jehovah's Witnesses. In Nietmotko denial of a request by Jehovah's
Witnesses for a permit to hold a meeting in a public park was overruled
where the denial appeared to be based not upon any valid exercise of the
police power but upon arbitrary action on the part of the local
officials.
On the other hand, in Cox v. New Hampshire a statute requiring a
permit and license fee for parades was held valid in a case involving
Jehovah's Witnesses. Chaplinsky v. New Hampshire upheld a state statute
applicable only to the use in a public place of words directly tending
to cause a breach of the peace. The speaker was a Jehovah's Witness who
had been engaged in distributing literature of his sect on the street
and addressing passers-by. He used the inflammatory words against the
City Marshall after a disturbance broke out. People v. Bohnke upheld
an ordinance which prohibited, without prior consent of the occupants,
entry by nonresidents of the community upon private residential property
for certain purposes, including the distribution of pamphlets or other
literature. Appellants were nonresident Jehovah's Witnesses
distributing religious information.
Thus in this country the right of Jehovah's Witnesses to proselyte is
not without limitation. In Greece, however, that right appears to be
nonexistent. Counsel for respondent urges us to adopt the standards in
this country in determining whether the action of the Greek authorities
against Jehovah's Witnesses constitutes physical persecution. Although
at times particular aspects of questions arising under section 243(h)
should be considered in the light of the standards in this country
rather than those in the country in question, we do not believe the
statute contemplates that unless aliens will enjoy within their own
country the same type, degree, and extent of religious and individual
freedom they enjoy here deportation may be withheld on the grounds of
impending physical persecution. Wherever possible, consistent with the
purposes of the statute, considerable latitude should be extended to the
foreign law. The Court of Appeals for the Third Circuit in Blazina v.
Bouchard (supra at 511, cited by respondent's counsel for another
proposition) indicated that repugnance of a governmental policy to our
own concepts of religious freedom cannot in itself justify our labeling
actions taken under that policy as "physical persecution.'
The record does not reveal the specific facts underlying individual
instances of prosecution in Greece of Jehovah's Witnesses. The letter
from the Watchtower Bible and Tract Society describes only in a general
way such prosecutions. It says that the members of the sect were
charged with talking about the Bible to others or getting together in
their own homes to discuss the Bible, and that, in some cases, false
charges were brought against Witnesses who had done nothing. The
Presiding Minister in Greece describes two convictions naming the
Witnesses involved. Each received a fine of 2000 drachmas and probation
for six months for displaying their religious literature plus
imprisonment of two and a half months in one case and one month in the
other. The particular circumstances upon which the prosecutions were
based do not appear, however,
We have considered the evidence in the light most favorable to
respondent, assuming that the Jehovah's Witnesses in Greece who
encountered police opposition were engaged in activities generally
protected in this country and that prosecution under the Greek
constitutional provision of members of the sect is widespread. We note,
however, that the affidavit of a member of the sect resident in this
country, formerly a Jehovah's Witness in Greece, alleges repeated
persecution and hunting out by the police there -- but refers only to
one instance of actual imprisonment which lasted about 30 hours. As
previously noted, the maximum other imprisonments described in the
record were for about five months. Looking at the general situation as
revealed by this record of Jehovah's Witnesses in Greece vis-a-vis Greek
law, including the extent of the sanctions imposed by the authorities,
we agree with the special inquiry officer's conclusion that any
prosecution or other official opposition which might result from
respondent's religious activities in Greece would not fall within the
purview of section 243(h) of the Immigration and Nationality Act. We
shall dismiss the appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
In a fine proceeding under section 273, Immigration and Nationality Act, the carrier is not precluded from offering evidence on the question of due diligence simply because that evidence might ten to impeach the correctness of the order excluding the alien.
IN RE: SS. RYNDAM, which arrived at the port of New York from foreign on February 20, 1961; Alien passenger involved: HERMANUS C. BRONS.
BASIS FOR FINE: Act of 1952 -- Section 273 8 U.S.C. 1323 .
In connection with the arrival of the alien passenger mentioned
above, the District Director at New York imposed an administrative
penalty of $1,000 against Holland-America Line. We withdrew the
District Director's order on November 20, 1961 and remanded the case to
him in order that the carrier might have the opportunity of submitting
additional pertinent evidence. On February 12, 1962 we denied a motion
of the Service for reconsideration. The matter is now before us
pursuant to the request of the Service on March 6, 1962 that the case be
referred to the Attorney General for review under 8 CFR 3.1(h)(iii).
Hermanus C. Brons, the alien passenger involved, was admitted to the
United States for permanent residence as an immigrant on December 3,
1956. At the time of the arrival involved here (February 20, 1961), he
was in possession of a valid Dutch passport and an Alien Registration
Receipt Card (Form I-151) No. 10443369. Under 8 CFR 211.1, the Form
I-151 would have relieved this alien from the requirement of a visa if
he was returning to an unrelinquished lawful permanent residence after a
temporary absence abroad not exceeding one year. At the exclusion
hearing, the alien testified (p. 5) that he had received a card from his
local draft board in Columbus, Ohio regarding a physical examination,
and that he was planning to go there directly for the purpose of being
inducted as soon as possible. He also testified that, when he left the
United States about November 1959, it was for the purpose of marrying
his fiancee and with the intention of returning to the United States
with his wife after the marriage. The special inquiry officer held that
the alien had been abroad for more than one year and that he had
abandoned his status as a lawful permanent resident. That officer
directed that the alien be excluded and he was returned to the vessel on
the same day for deportation. A letter dated September 12, 1961 from
the Holland-American Line contains the statement that, at the time the
alien booked passage on February 6, 1961, he had presented a letter
indicating that he lived in the United States until February 15, 1960.
In attempting to state the issue in this case, the memorandum of the
Service dated March 6, 1962 shows that it believes that the carrier is
making an "unwarranted collateral attack on a duly-entered final order
of exclusion.' However, the actual issue here is simply whether or not
the carrier is entitled to present its defense in full. That this
question must be answered in the affirmative seemed so clear to us that
we did not deem it necessary to answer in detail the arguments in the
Service motion of December 13, 1961. Since the Service memorandum of
March 6, 1962 complains that we did not answer any of the points it had
raised, we believe that some further clarification of the matter is
appropriate.
Subsection (a) of Section 273 of the Immigration and Nationality Act
8 U.S.C. 1323(a) makes it unlawful to bring to the United States "any
alien who does not have an unexpired visa, if a visa was required under
this Act or regulations issued thereunder' (emphasis supplied);
subsection (b) provides that, if the Attorney General is satisfied that
there has been a violation, a fine of $1,000 shall be imposed; and
subsection (c) prohibits remitting or refunding the fine unless it
appears to the satisfaction of the Attorney General that the carrier
"did not know, and could not have ascertained by the exercise of
reasonable diligence, that the individual transported was an alien and
that a visa was required.' The carrier is seeking to present evidence on
two points: (1) that this particular alien did not require a visa and
(2) that, even if a visa was required, the fine should be remitted under
Section 273(c).
It was not until March 31, 1961, about a month after the alien's
deportation from the United States, that the carrier was notified by the
District Director concerning his intention of imposing a fine under
Section 273. In the carrier's protest to the imposition of fine,
submitted on May 18, 1961, a request was made for a transcript of the
exclusion proceeding and an opportunity to cross-examine the alien. A
letter of the District Director at New York (apparently dated August 25,
1961) informed counsel that no action could be taken upon his request
for cross-examination of the alien passenger.
Our action in this case, which permits the carrier to present
additional pertinent evidence including the testimony of the alien
passenger, does not imply that it is the duty of the Service to render
assistance to the carrier in presenting its defense, nor that it is the
obligation of the Service, in a case such as this, to have the passenger
available for cross-examination by the carrier. On the contrary, we do
not hold that the carrier was entitled to cross-examine the alien during
the exclusion proceeding nor that it was necessary to notify the
carrier, prior to the deportation of the alien from the United States,
concerning the possible institution of fine proceedings. However, the
carrier here has assumed the full responsibility for producing the alien
before the American Consular Officer in the Netherlands, and counsel has
suggested that he will bear the expense of questioning the alien through
interrogatories and cross-interrogatories. Under the circumstances, the
case is simply one in which the carrier desires to present the testimony
of a witness for the consideration of the District Director, and we do
not believe there is any basis for refusing to accept the testimony
merely because the witness happens to be the alien passenger involved.
On the other hand, if an alien departs from the United States and the
carrier is unable to locate him, the carrier would be in the same
position as any other litigant who is unable to produce a witness.
The question of whether or not this alien passenger had abandoned his
residence in the United States and the question of whether he had or had
not been absent for over one year are clearly matters pertinent to the
carrier's defense. Assuming that the carrier will produce the alien
before the American Consular Officer, we believe that will be the
appropriate method of affording the carrier an opportunity to question
the alien as a witness in its defense.
The motion of the Service dated December 13, 1961 refers to "an
unwarranted reexamination of a duly-arrived-at exclusion ruling of a
special inquiry officer, after hearing' (p. 5) and contains the
assertion that counsel is seeking to make a collateral attack on the
special inquiry officer's findings (p. 7). At the exclusion hearing,
the special inquiry officer made no formal findings of fact but it is
clear that he did hold that the alien required an immigrant visa. The
Service takes the position that the carrier is conclusively bound by
such a finding of a special inquiry officer and apparently it claims
this would be true regardless of what facts carrier might be able to
present to show that, in a particular case, the alien did not require a
visa. None of the cases cited by the Service is authority for such a
proposition, and the Service has not brought to our attention any
provision of the statute or regulations which would preclude a carrier
from presenting evidence that an arriving passenger actually did not
require a visa.
In Matter of H , 7 I. & N. Dec. 407, 409 (1957), where there had been
a prior judicial decision, we discussed the distinction between res
judicata and collateral estoppel by judgment. Although the Service has
refrained from using these terms, it apparently is seeking to apply
these doctrines to the special inquiry officer's finding that the alien
required a visa. However, these doctrines can be utilized only where
the same parties are involved in the two proceedings and they cannot be
applied to this carrier who was not a party to the exclusion proceeding.
The carrier is not attacking the exclusion order as such and any
decision which may eventually be made with respect to the carrier will
have no effect on the finality of the order excluding the alien. In
other words, after the carrier has had the opportunity of presenting its
defense in full, the District Director will be able to pass on whether
the carrier is subject to fine, depending on whether this alien did or
did not require a visa. However, if the District Director holds that
the alien did not require a visa, the alien himself will not be able to
attack the exclusion order since it became final as to him on February
20, 1961 under Section 236 of the Immigration and Nationality Act.
The Service stated (motion of December 13, 1961, p. 8) that the Board
had uniformly rejected attempts of carriers to bring fine proceedings
within the Administrative Procedure Act and the decision in Wong Yang
Sung v. McGrath, 339 U.S. 33 (1950). Although this statement of the
Service is correct, it has no particular relevance since counsel has not
claimed that the Administrative Procedure Act or the Sung decision have
any applicability to this fine proceeding.
As counsel indicated, the court made the following statement in Lloyd
Sabaudo Societa Anonima v. Elting, 287 U.S. 329, 336-337 (1932): "We
think it clear * * * that the statute, as it has been consistently
construed administratively, contemplates that the Secretary should
fairly determine, after a hearing and upon the evidence, the facts
establishing its violation.' The pertinent regulations are contained in
Part 280, Title 8, Code of Federal Regulations. 8 CFR 280.14
specifically refers to testimony adduced at the interview, and we
believe it is immaterial that Part 280 contains references to "personal
appearance' and "personal interview' rather than to a hearing. We hold
that the regulations in Part 280 provide due process.
In its motion of December 13, 1961 (pp. 5-9), the Service argued
that, on the basis of all the facts of record, the alien required a visa
and the carrier did not exercise reasonable diligence. It may be that
this will be our eventual conclusion. However, the important
consideration in this case is that 8 CFR 280.12 specifically provides:
"* * * the evidence in opposition to the imposition of the fine and in
support of the request for mitigation or remission may be presented at
such interview.' Here we have a case in which the carrier desires to
present the alien's testimony for the consideration of the District
Director, and the Service seeks to preclude the presentation of such
evidence. We find no merit in the contention of the Service that the
alien's testimony would be of no value to the carrier. After the
testimony is taken, it may be of no value or it may even be damaging to
the carrier. However, the regulation specifically provides that the
carrier may present evidence in opposition to the imposition of fine
and, if it desires to present the alien's testimony, we believe the
carrier is entitled to do so.
The Service asserted (motion of December 13, 1961, p. 8) that the
requirements of procedural due process stated in 8 CFR 280 "were
punctiliously followed in this proceeding'. Actually, in certain
respects the requirements of the regulation were not observed. In the
first place, when the carrier protested the imposition of fine, it
requested cross-examination of the alien. The District Director's
letter stated that no action could be taken upon this request and
referred to the alien's departure from the United States. We have held
above that a carrier may present the alien passenger as its witness and
that the testimony may be taken through interrogatories before an
American Consular-Officer. The District Director's refusal to take
action on counsel's request was in error since it precluded the carrier
from presenting certain evidence in opposition to the imposition of a
fine as provided by 8 CFR 280.12.
In another respect also there was a failure to comply with the
regulation. Where a personal appearance is requested, 8 CFR 280.13(b)
states that the case shall be assigned to an immigration officer and
provides: "The immigration officer shall prepare a report summarizing
the evidence and containing his findings and recommendation. The
record, including the report and recommendation of the immigration
officer, shall be forwarded to the district director' (emphasis
supplied). 8 CFR 280.14 specifically refers to the "record made under
Section 280.13' and sets forth certain additional matters to be
included. The record before us does not contain the report summarizing
the evidence, prepared by the immigration officer to whom the case was
assigned, nor his findings and recommendation.
A third matter is that 8 CFR 280.14 provides that one of the items to
be included in the record is "documentary evidence and testimony adduced
at the interview' (emphasis supplied). Since we were not even furnished
the immigration officer's report under 8 CFR 280.13(b), we are unable to
determine precisely what transpired at the personal interview, and we
believe the present record is defective for that reason.
We do not regard the copy of the District Director's letter of August
25, 1961 as complying with these specific provisions of the regulations.
The only statement in it relating to the personal interview appears on
page 2 where it was stated that a copy of the exclusion hearing and all
other evidence of record was reviewed by counsel's representative, Mr.
Edward L. Dubroff, during a personal interview conducted by Inspector
Berry on August 4, 1961.
Paragraph (1) of 8 CFR 3.1(d) provides that, subject to any specific
limitation, "the Board shall exercise such discretion and authority
conferred upon the Attorney General by law as is appropriate and
necessary for the disposition of the case', and paragraph (2) provides
that the Board may return a case to the Service for such further action
as may be appropriate without entering a final decision on the merits of
the case. At the time of our original consideration of the case, we
concluded that, before rendering a decision on the merits, it was
appropriate and necessary that the carrier be permitted to present its
defense in full, including the testimony of the alien.
In its memorandum of March 6, 1962, the Service stated that our
decision was contrary to long-standing administrative practice and that
it directs a major departure from existing regulations. Actually, there
never has been any practice that a carrier is to be precluded from
presenting his defense in full, whether the defense consisted of the
testimony of our witnesses or the testimony of the alien passenger. Our
decision also is not a departure from existing regulations. On the
contrary, it is merely to require that the existing regulations be
observed.
The Service submitted copies of several decisions of the Board, one
of which was dated June 16, 1950 and the others bearing dates between
1957 and 1961. These are unreported decisions which are not available
to counsel and he has not been furnished copies of them nor an
opportunity to differentiate between these decisions and his client's
case. One of the matters to which the Service invited attention was our
statement that the regulations do not require that the carrier be
afforded the opportunity of being present at the exclusion hearing of
the alien passenger. In these cases, the carrier was apparently
claiming that this was a fatal defect which barred the imposition of a
fine, and we rejected the contention. Here, counsel makes no such claim
but merely asks that the carrier be permitted to now examine the alien
and present his testimony. The other point to which the Service invited
attention in these unreported decisions is that a fine was properly
imposed where the procedure specified in the regulation was followed.
Here, as we have pointed out, certain requirements of the regulation
were not observed.
The Service cited (motion of December 13, 1961, pp. 5 to 8) judicial
authority for statements that the carrier is charged with whatever
knowledge it would obtain from a competent examination of the alien;
that the authority to exact penalties is an incident to the vast power
of Congress to control the entry of aliens; that it is proper for
Congress to invest administrative officers with the power to assess
penalties; that the courts have no direct function in this process
except to correct abuses; and that the Attorney General's decision as
to the weight to be given to the evidence in a fine proceeding is final
provided that the decision is supported by substantial evidence. All of
these principles are clear and we are well aware of them. However,
counsel does not dispute any of these; they are not involved in this
case; and we do not perceive why the Service felt it necessary to
discuss matters which are not at issue.
The Service stated (motion, pp. 8-9) that a "careful review of the
pertinent cases' not otherwise identified had failed to reveal any
authority in an administrative fine proceeding for a direct attack by a
carrier on the basic exclusion proceeding, and that the carrier's remedy
is a possible defense of due diligence notwithstanding the fact of a
proper exclusion. In a fine proceeding under Section 273, there are two
defenses open to a carrier -- (1) that there has been no violation of
the statute which is an absolute defense and (2) that, although the
statute was violated, the fine should be remitted or refunded pursuant
to Section 273(c). The position of the Service seems to be that, as
soon as there is a final decision in an exclusion proceeding, this wipes
out the first or absolute defense a carrier might have (even though the
carrier is not a party to the exclusion proceeding) and from that point
the carrier is to be relegated to the possibility of securing remission
or refunding of the fine if it can establish the requirements of Section
273(c).
As was the case here, the exclusion proceeding would ordinarily be
completed before the carrier had had an opportunity to present any
evidence in the fine proceeding. The effect of the Service position, in
all or most cases, would be to preclude a carrier from offering any
evidence to show that there had, in fact, been no violation of the
statute. In order to sanction a course so drastic, we would expect the
Service to point to some specific authority for depriving a carrier of
the possibility of showing that the statute had not been violated,
particularly since the provisions relating to the imposition of fines
are penal in nature. It is a well-established principle that penal
statutes are to be construed strictly. Federal Communications
Commission v. American Broadcasting Co., 347 U.S. 284, 296 (1954). The
Service has not cited any authority to sustain its theory, and we
believe there is ample support for a contrary position.
First, the regulation of the Service 8 CFR 280.12 refers to a written
defense setting forth the reasons (1) why a fine should not be imposed
or (2) if imposed, why it should be mitigated or remitted. Later in the
same section there is again a reference to evidence in opposition to the
imposition of fine and in support of the request for mitigation or
remission. If we were to accede to the present position of the Service,
this provision of the regulation authorizing the carrier to present
evidence in opposition to the imposition of a fine would be rendered
practically meaningless, and the carrier, instead of having two possible
defenses, would be limited to a defense only under Section 273(c).
In the second place, the "authority', which the Service says is
lacking, appears sufficiently in the statute itself. Section 273(a)
makes it unlawful to bring an alien who does not have an unexpired visa
if a visa was required. In order to sustain the imposition of a fine,
the record must show that the passenger was an alien; that he did not
have an unexpired visa; and that a visa was required. We do not
believe it is open to question that no fine could legally be imposed if
a carrier presented evidence establishing that a particular passenger
was a United States citizen or that he did, in fact, have an unexpired
visa or that he did not require a visa, and this would be true
irrespective of what might have occurred in the exclusion proceeding.
Hence, we can perceive no valid legal basis for precluding a carrier
from presenting evidence along that line merely because these facts may
have been decided adversely to the passenger in the exclusion
proceeding. In the case before us, there is certain evidence showing
that the passenger is an alien; that he required a visa; and that he
did not have an unexpired visa. However, it is not conclusive evidence
that would preclude the carrier from establishing the contrary and the
carrier does assert, as a defense, that this particular alien did not
require a visa. We do not believe there can be any legal justification
for the attempt of the Service to prevent the carrier from offering
evidence concerning this defense.
A third matter is that there are judicial decisions which indicate
that a conclusion reached in an exclusion proceeding is not necessarily
binding in a fine proceeding. United States v. Compagnie Generale
Transatlantique, 26 F.2d 195 (C.C.A. 2, 1928); Compagnie Generale
Transatlantique v. United States, 78 F.Supp. 797 (Court of Claims,
1948).
In Matter of Plane CCA CUT 532, 6 I. & N. Dec. 262 (1954), and in
Matter of Plane CUT 604, 7 I. & N. Dec. 701 (1958), we held that fines
were not incurred under Section 273 and that a carrier may assert the
defense that a visa was not required. In these cases the exclusion
proceeding against the passenger had been predicated on lack of a visa
but the passenger was admitted under a standing waiver of the visa
requirement published in the regulations. In Matter of Canadian Pacific
Airlines, 8 I. & N. Dec. 8 (1957), two aliens did not have unexpired
visas or other entry documents and such documents were required. There,
we adopted a view urged by the Service that no fine should be imposed
under Section 273 of the Immigration and Nationality Act, against a
carrier signatory to an Overseas Agreement under Section 238 of the Act,
for transporting to Canada, destined to the United States, aliens who
were returning United States residents or natives of contiguous
territory and who were inadmissible solely on documentary grounds.
These administrative decisions are, of course, distinguishable from the
instant case. However, they illustrate that the decision in an
exclusion case is not necessarily controlling in a fine proceeding;
that a carrier may assert, as a defense, that Section 273(a) was not
violated and that a carrier is not restricted to the possibility of
asking that the fine should be remitted or refunded under Section
273(c).
In view of the foregoing, we believe the conclusion is inescapable
that the carrier must be afforded the opportunity of presenting its
defense in full. While the exclusion order has become final as to the
alien passenger, the findings in that proceeding are not binding on the
carrier and cannot be utilized to deprive the carrier of its right to
show that there was no violation of Section 273(a). Accordingly, we
adhere to our previous ruling that the case is not ready for
adjudication at this time and must be remanded to the Service to permit
the carrier to present its defense in full, including the testimony of
the alien passenger to be obtained by means of interrogatories.
ORDER: It is ordered that, pursuant to the request of the Service,
this case be referred to the Attorney General for review under 8 CFR
3.1(h)(iii).
This case involves the question whether a transportation company, the
Holland-America Line, is entitled to the opportunity to submit certain
evidence in connection with an administrative proceeding for the
imposition of a fine $1,000 for bringing an alien to the United States
in violation of section 273 of the Immigration and Nationality Act, 8
U.S.C. 1323.
Subsection (a) of section 273 makes it unlawful for a transportation
company to bring to the United States an alien who does not have an
unexpired visa, if a visa is required. Subsection (b) provides that if
it appears to the satisfaction of the Attorney General that the alien
has been so brought to the United States, the transportation company
must pay a fine of $1,000. Subsection (c) provides that the fine may
not be remitted, unless it appears to the satisfaction of the Attorney
General that the transportation company prior to the departure of its
vessel (or aircraft) from abroad "did not know, and could not have
ascertained by the exercise of reasonable diligence that the individual
transported was an alien and that a visa was required.'
Over the company's protest, the District Director of the Immigration
and Naturalization Service imposed a fine against it. On appeal to the
Board of Immigration Appeals, the Board withdrew the order imposing the
fine and remanded the case to the District Director in order to give the
company the opportunity to submit additional evidence. At the request
of the Immigration and Naturalization Service, the Board has certified
the case to me for review pursuant to 8 CFR 3.1(h)(iii).
Hermanus C. Brons, the alien passenger involved, was admitted to the
United States for permanent residence as an immigrant on December 3,
1956. At the time of the arrival involved here, February 20, 1961, he
was in possession of a valid Netherlands passport and an Alien
Registration Receipt Card (Form I-151). He did not have a visa.
However, under 8 CFR 211.1 the Form I-151 would have relieved him from
the requirement of a visa if he was returning to an unrelinquished
lawful permanent residence after a temporary absence abroad not
exceeding one year. An exclusion hearing was held on February 20, 1961.
On the basis of Mr. Brons' testimony at the hearing, the special
inquiry officer found that Mr. Brons had been abroad for more than one
year and that he had within that period relinquished his permanent
residence in the United States by emigrating to Canada. Consequently,
the officer directed that Mr. Brons be excluded pursuant to section
212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(
20), and he was returned to the vessel the same day for deportation. No
representative of the company appeared at the exclusion proceeding, and
Mr. Brons was represented by a social agency worker.
On March 31, 1961, the District Director sent the company a notice of
intention to fine. The company filed a protest in which it stated that
it had concluded that Mr. Brons was a permanent resident of the United
States because he had a Form I-151 and two letters from his draft board
ordering him to report for induction into the Armed Forces. It stated
further that it did not know that Mr. Brons was not a lawfully returning
resident and could not have established the fact by the exercise of
reasonable diligence. The company requested an opportunity to examine
Mr. Brons' immigration file and the transcript of the exclusion
proceeding, and to cross-examine Mr. Brons. In addition it demanded "a
formal due process hearing.' The District Director in a decision dated
August 25, 1961, denied the company's request, /1/ imposed a fine in the
amount of $1,000, and refused to remit the fine on the ground that the
company had failed to exercise reasonable diligence.
The company appealed to the Board and, at the hearing before the
Board, requested the opportunity to develop additional evidence through
written interrogatories to Mr. Brons. The company also submitted to the
Board a letter received from its Rotterdam office subsequent to the
District Director's decision, setting forth Mr. Brons' version of the
entire episode. The Board ordered that the District Director's decision
be withdrawn and that the case be remanded to the District Director "to
give the carrier an opportunity to submit any additional pertinent
evidence it may desire.' As stated above, the Service moved for
reconsideration, the motion was denied, and at the request of the
Service the case was referred to me for review.
Had this case come before me simply as a request to review the
Board's initial decision, it would present no problem, for I have no
doubt that the Board's discretionary authority under 8 CFR 3.1(d)(1)
includes the power to remand a case for the taking of further testimony,
whether or not an error of law was committed below. Unfortunately, the
motion for reconsideration, the decision on the motion, the request for
referral, and the Board's memorandum accompanying the order of referral
have resulted in a confusing proliferation of the issues, unjustified by
the present posture of the case.
Basically, it is the position of the Service that no further
testimony should be taken from Mr. Brons because such testimony can be
used only to attack collaterally the determination of the special
inquiry officer that Mr. Brons was required to have a visa, and that the
carrier is bound by this determination. Furthermore, the Service
contends that if the company wishes to develop from Mr. Brons' testimony
evidence of its own exercise of due diligence, that factual issue has
been "foreclosed' because the Service has from the beginning accepted
the company's statement as to what information it was acting on in
permitting Mr. Brons to embark. Therefore, the Service reasons, the
only question present in this case is whether the conceded facts do or
do not establish a claim of due diligence under section 273(c), supra,
and this question can be determined by the Board on the present record.
The short answer to the latter contention is that inasmuch as the
Board does not regard the present record as sufficient for a disposition
of the issues of this case, I see no reason why the company should not
be afforded an opportunity to present further evidence, either as a
matter of discretion or a matter of right. /2/ Furthermore, the Service
is evidently proceeding on an inarticulate premise that in making its
case for remission under section 273(c) a carrier is limited to evidence
in its possession prior to the time the passenger was permitted to
embark, the theory being that no other evidence can be probative of the
carrier's diligence. The difficulty with this theory is that section
273(c) does not say that the carrier must show that it acted with due
diligence in the light of the circumstances known to it at the time, but
that it "did not know, and could not have ascertained by the exercise of
reasonable diligence that the individual transported was an alien and
that a visa was required.' Accordingly, even if the carrier is limited
to a defense under section 273(c), it should be permitted to show not
only that it acted with diligence in the light of its actual knowledge,
but also that if there was a lack of diligence, this did not cause the
carrier to be cut off from a line of inquiry which, if pursued, would
have led to the conclusion that the passenger was an alien who required
a visa. /3/ It is not inconceivable that Mr. Brons' testimony might be
relevant to this issue.
The major issue in this case is, of course, whether the company is to
be permitted to introduce evidence tending to show that the passenger
was not required to have a visa and thus to make what the Service
describes as "an unwarranted collateral attack on a duly-entered final
order of exclusion.' This is a troublesome question, and I do not
believe that it should be decided on hypothetical facts. On the present
record the question is premature. The company has made no formal offer
of proof. It is not entirely clear what it hopes to elicit from Mr.
Brons, and I see no need to act now on the basis of speculation. In any
event, the question whether section 273(a) was violated is not
necessarily inseparable from the question of what the company could have
ascertained by the exercise of reasonable diligence. Certainly, the
company should not be precluded from offering evidence on the latter
question simply because that evidence might tend to impeach the
correctness of the order of exclusion.
The order of the Board is affirmed.
(1) It appears that the company's representative was permitted to
examine a transcript of the hearing and the other evidence of record at
a personal interview held on August 4, 1961, pursuant to 8 CFR 280.12.
(2) The Board points out in its memorandum accompanying its
certification for review that the proceedings before the District
Director did not comply with applicable regulations, 8 CFR 280.12,
280.13, 280.14. The Service has not replied to this contention. It is
not clear whether the Board has based its decision to remand on these
errors below or on its discretionary power. I conclude that the order
to remand was appropriate in any event since the Company has not in fact
had an opportunity to develop and present evidence which may be relevant
to its defense.
(3) For example, if an alien passenger carries a forged United States
passport, the carrier should be permitted to show that it could not have
detected the forgery by the exercise of reasonable diligence even if in
fact the carrier's representatives did not examine the passport at all.
The discretionary authority contained in section 211(c) of the Immigration and Nationality Act will not be exercised in behalf of respondent, a 29-year-old Italian national, who was married the day following issuance of his nonquota visa and the signing of State Department form, in English and Italian, attached to the visa which placed him on notice that marriage prior to entry would divest him of his nonquota status and render him subject to exclusion, since he has not established, as required by the statute, that his inadmissibility was not known to him and could not have been ascertained by the exercise of reasonable diligence prior to his departure for the United States.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry under 8 U.S.C. 1181(a)(3) -- Not nonquota as
specified in immigrant visa.
This case is before us on appeal from a decision of a special inquiry
officer denying relief under 8 U.S.C. 1181(c), granting voluntary
departure and directing that the respondent be deported if he fails to
depart voluntarily.
The respondent is a 29-year-old married male, native and citizen of
Italy, whose only entry into the United States occurred on December 7,
1961 at which time he was admitted as a nonquota immigrant. He secured
nonquota status under section 25(a) of the Act of September 26, 1961 /1/
as the unmarried son of an alien lawfully admitted to the United States
for permanent residence. The visa was issued to him on October 31, 1961
and he was married in Italy to Ippolita Fortino on November 1, 1961.
Since he was not the unmarried son of a legally resident alien at the
time he applied for admission on December 7, 1961, he was inadmissible
to the United States under 8 U.S.C. 1181(a)(3). The respondent has
conceded that he is deportable on the charge stated in the order to show
cause. The sole issue to be determined is whether the application for
nunc pro tunc relief under 8 U.S.C. 1181(c) should be granted.
We have carefully reviewed the entire record. Apparently the
respondent was not excludable on any ground other than that stated in 8
U.S.C. 1181(a)(3). Under these circumstances and subject to the
provisions of subsection (d) of 8 U.S.C. 1181, subsection (c) thereof
contains discretionary authority to admit this respondent providing that
the Attorney General or his delegated officer is "satisfied that such
inadmissibility was not known to and could not have been ascertained by
the exercise of reasonable diligence by, such immigrant prior to the
departure of the vessel or aircraft from the last port outside the
United States * * *.' As we have indicated above, the respondent has
conceded that his marriage prior to his application for admission to the
United States rendered him excludable. The question resolves itself
into whether, prior to his departure from Italy, the respondent did not
know and could not have ascertained that he would be inadmissible.
The special inquiry officer stated that he was not satisfied that the
testimony of the respondent and his witness rebuts the presumption which
arises from the requirement of 22 CFR 42.117(b), citing Matter of G ,
Int. Dec. No. 1194 (1962). That decision and the regulation mentioned
relate to the application for the immigrant visa in a situation in which
that alien failed to disclose that he had been a menber of the Communist
Party. In the respondent's case, there is no claim that the application
for visa contained a false statement or that the respondent failed to
disclose any information to the American Consular Officer. Hence, that
decision and the regulation are not pertinent.
It was also stated in the special inquiry officer's decision that the
respondent's case is governed squarely by this Board's decision in
Matter of C , 8 I. & N. Dec. 665 (1960). Although many of the facts in
that case are similar to facts in the respondent's case, we do not think
it is entirely accurate to say that the decision governs this
respondent's case because the question which must be determined here is
whether the particular facts of this case do or do not show that the
respondent knew or could have reasonably ascertained that he would be
inadmissible if he married. During the oral argument, counsel stated
that the special inquiry officer did not find fraud and
misrepresentation on the part of this respondent and he contended that
Matter of C related entirely to fraud and misrepresentation and was,
therefore, inapplicable. Actually, the alien in Matter of C was not
charged with procuring his visa by fraud or misrepresentation, and the
factual situation resembles that in the respondent's case.
Counsel also cited Matter of M , 4 I. & N. Dec. 626 (1952) and Matter
of R , 71 I. & N. Dec. 304 (1956). In the former relating to the
discretion to grant voluntary departure, we said that aliens whose cases
are substantially similar should receive like treatment. That case has
no application because the special inquiry officer did not deny relief
to the respondent as a matter of discretion but because the respondent
did not meet the statutory requirements of 8 U.S.C. 1181(c). Matter of
R, supra, related to a letter of the Department of State dated May 14,
1956, stating that the Italian quota had been entirely utilized and
could not be reduced to take care of that alien's case and the same
department's subsequent letter indicating that the alien's case could be
adjusted. In that case, the special inquiry officer held on April 30,
1956 that the alien was unaware of the fact that his marriage made him
inadmissible to the United States and apparently the Service did not
contest that finding. For that reason, the question of that alien's
knowledge or lack of knowledge concerning the effect of his marriage was
not considered by this Board and the facts which led the special inquiry
officer to that conclusion are not even stated in the decision. That
case is of no assistance to counsel since, as we have previously
indicated, the question here is whether, on the particular facts
relating to this respondent, it can be said that he was not aware and
could not have ascertained that he would be excludable.
Counsel referred to the special inquiry officer's discussion
(decision, pp. 5-7) of the respondent's interrogation on June 27, 1962
(Ex. 3) and that officer's conclusion that it indicated that the
respondent knew before he left Italy, or had reason to believe, that his
visa would be invalid if he married prior to coming to the United
States. Insofar as is pertinent to this question, Exhibit 3 contains
the respondent's testimony that the American Consular Officer did not
inform him that the visa would be invalid if he married but that other
people did advise him after he received the visa. There is a statement
that these were persons who were also getting their visas to come to the
United States which would indicate that the respondent received this
information prior to his departure from Italy. The respondent's
testimony at the hearing (Tr. pp. 29-32) indicates that a few days after
the examination of June 27, 1962 he appeared at the office of the
Service as requested for the purpose of signing the transcript; that
the statement was then translated to him; and that he refused to sign
it on the advice of counsel because two matters allegedly were
incorrectly stated. He testified (Tr. pp. 8, 10, 32) that no one in
Italy told him that the visa would be invalid if he married and that he
first learned of the invalidity of his visa when he filed his visa
petition on behalf of his wife after his arrival in the United States.
The special inquiry officer stated that the questions and answers in
Exhibit 3 indicated to him that the respondent knew or had reason to
believe before he left Italy that his visa would be invalid if he
married prior to coming to the United States. We do not consider it
necessary to rely on this challenged testimony of the respondent in
Exhibit 3 nor to determine whether it would have been incumbent upon him
to accept statements from unofficial sources as to what would invalidate
the visa issued by the American Consular Officer.
We believe this case can properly be disposed of on the basis of the
form reading, "STATEMENT OF MARRIAGEABLE AGE APPLICANT' which is
attached to the respondent's immigrant visa. The form contains a notice
to the visa applicant in English and Italian, the English version of
which is as follows: "I, the undersigned, fully understand that I shall
lose my nonquota, quota preference status or right to be charged to the
quota of my accompanying parent if I marry prior to my application for
admission at a port of entry into the United States and that I would
then be subject to exclusion therefrom.' This form is dated October 30,
1961, the date on which the visa application was executed before the
American Consular Officer. The respondent testified (Ex. 3, pp. 2-3;
Tr. pp. 9, 11-12) that the two signatures on this form are his; that he
had not read the information on the form when he signed it; that he can
read and write Italian; and that he had attended school in Italy to the
fifth or eighth grade. We do not believe the respondent's statement
that he signed this form without reading the information appearing in
Italian immediately above his signature. However, even if that were the
case, he could have ascertained his inadmissibility by merely reading
the statement in Italian and his neglect to do that would constitute a
failure to exercise reasonable diligence. Accordingly, we are not
satisfied that the respondent's inadmissibility was not known to him and
could not have been ascertained by him through the exercise of
reasonable diligence prior to his departure from Italy. It follows that
the applicant does not meet this statutory requirement of 8 U.S.C.
1181(c) and his appeal from the denial of that relief will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Public Law 87-301; 75 Stat. 657; Note at page 165 following 8
U.S.C. 1153, 1958 Ed., Supp. III.
Since the permission to reapply granted appellant, a previously-deported Mexican alien, under the provisions of 8 CFR 214k. 7at the time he was recontracted as an agricultural laborer in September 1955, was unlimited and applied to future entries no matter what their nature, he did not require permission to reapply at the time of his application for an immigrant visa in 1962; therefore, the concealment of his prior deportations was not a material misrepresentation since the line of inquiry cut off by the misrepresentation would not have resulted in a proper determination that he was excludable. See Matter of Alvarez-Mujica, Int. Dec. No. 1354.
EXCLUDABLE: Act of 1952 -- Section 212(a)(19) 8 U.S.C. 1182(a)(19)
-- Visa procured by fraud.
The Officer in Charge, San Ysidro, California, appeals from the order
of the special inquiry officer authorizing the applicant's admission to
the United States when in possession of proper documents. The issue is
whether applicant's failure to reveal to the American Consul when he
applied for a visa that he had been deported was a material
misrepresentation. The appeal will be dismissed.
Applicant, a 40-year-old married male, native and national of Mexico,
had been deported from the United States in 1946, 1947 and 1949. On May
31, 1955 while he was illegally in the United States, he was given a
contract as an agricultural worker at El Centro, California. Upon the
expiration date of the contract on September 1, 1955 it was renewed and
except for intervals totaling about a year and a half applicant was
employed as a contract agricultural worker until December 27, 1961. On
May 28, 1962, applicant secured a nonquota immigrant visa from an
American Consul in Mexico; he was admitted for permanent residence on
June 4, 1962. Since admission, applicant has commuted daily from his
home in Mexico to his employment in the United States.
In his application for a visa, the applicant did not reveal he had
been arrested and deported from the United States. His explanation is
that the man to whom he had gone for help in filling out the forms told
him that since he could not recall the exact dates of the deportations
he should not give any information concerning them. The Service charges
that the applicant secured his visa by fraud in that he failed to reveal
that he was inadmissible to the United States because he did not have
permission to reapply although he had been deported. The special
inquiry officer ruled that the applicant had not needed permission to
reapply because he had been the beneficiary of a blanket permission to
reapply which had been granted to persons admitted as agricultural
workers. The special inquiry officer held that the misrepresentations
was not a material one. The Officer in Charge, in his appeal, contends
that the blanket permission had given applicant the right to reapply
only if he came as an agricultural worker (or some other temporary
status), and if he came as an immigrant he still needed permission to
reapply for admission after arrest and deportation. Furthermore, the
Officer in Charge contends that a grant of permission to reapply was
never made, for the existing disability was merely waived under section
212(d)(3) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(3).
The Officer in Charge further contends that the misrepresentation is
material even if the applicant did not need permission to reapply, for
the misrepresentation cut off a relevant line of inquiry which might
have resulted in a proper determination that he was excludable.
We must dismiss the appeal. We find that a grant of permission to
reapply rather than a waiver has been made, that the grant once given
applied to furture entries no matter what their natures, and that when
applicant applied for a visa, he did not need permission to reapply. We
conclude that no material misrepresentation existed because the line of
inquiry cut off by the misrepresentation would not have resulted in a
proper determination that the applicant was excludable.
That the applicant was the beneficiary of a blanket grant of
permission to reapply rather than of a temporary waiver of a ground of
inadmissibility is based upon both the conclusions reached when laws
prior to the Immigration and Nationality Act were construed and the
language of the grant. Prior to the Immigration and Nationality Act,
the authority to grant permission to reapply was contained in sections 3
and 23 of the Act of February 5, 1917 and section 1, Act of March 4,
1929; /1/ authority to waive a ground of inadmissibility for one
desiring to enter for temporary purposes was found in section 3, ninth
proviso, Act of February 5, 1917. /2/ At one time agricultural workers
who did not have permission to reapply were admitted under the ninth
proviso to section 3 of the Act of February 5, 1917 depite the failure
to have permission to reapply (Matter of R L , 1 I. & N. Dec. 624
(1943); however, later, and just prior to the Immigration and
Nationality Act, the regulations were changed to read as follows:
Provious deportation; permission to reapply. An alien who
established that he is in all respects entitled to admission as an
agricultural worker under the provisions of this part, except that
he has been previously excluded or arrested and deported on not
more than one occasion solely because of illegal entry or absence
of required documents, is hereby granted permission to reapply for
admission to the United States: Provided, That in the case of
such an alien who has been arrested and deported, such permission
to reapply shall not become effective unless and until the alien
has resided outside the United States for at least one year after
deportation. The proviso merely restates the prohibition
contained in law. (8 CFR 115.7, 16 F.R. 7348, July 27, 1951)
We construed this regulation as a grant of permission to reapply for all
purposes including immigration to the United States. /3/ The substance
of this regulation was put in 8 CFR 475.7 in 1952 and was in effect when
applicant was admitted to the United States as a contract laborer on May
31, 1955. The regulation read as follows:
Previous removal, deportation; permission to reapply. An
alien who established that he is in all respect entitled to
admission as an agricultural worker under the provisions of this
part, except that he has been previously removed at Government
expense pursuant to section 242(b) of the Immigration and
Nationality Act, or excluded or arrested and deported, on not more
than one occasion solely because of illegal entry or absence of
required documents, is hereby granted permission to reapply for
admission to the United States as an agricultural worker. (17 F.R.
11562, December 19, 1952)
This grant of permission to reapply did not attach to the applicant
since he had been arrested and deported on more than one occasion.
Applicant recontracted on September 1, 1955. At this time the
provisions of 8 CFR 214k.7 applied; it read as follows:
Previous removal, deportation; permission to reapply. An
alien who establishes that he is in all respects entitled to
admission as an agricultural worker under the provisions of this
part, except that he has been previously removed at Government
expense pursuant to section 242(b) of the act or excluded or
arrested and deported solely because of illegal entry or absence
of required documents, is hereby granted permission to reapply for
admission to the United States as an agricultural worker. (17 F.R.
11562, December 19, 1952 amended, 20 F.R. 5964, August 17, 1955,
redesignated 20 F.R. 6380, August 31, 1955)
This is the provision which the special inquiry officer ruled was a
grant of permission to reapply valid for all purposes and unlimited in
effect.
We believe the relief granted by 8 CFR 214k.7 is a grant of
permission to reapply under section 212(a)(17) of the Act rather than a
waiver under section 212(d)(3) of the Act. The language upon its face
purports to grant outright relief rather than a waiver of a ground of
inadmissibility and is substantially similar to other blanker grants of
permission to reapply. /4/ The Board as well as the alien is bound by
the apparent meaning of the language of the regulations. The language
of the blanket grant is to be contrasted with language used when a
waiver was intended. For example, we note that when a waiver was
intended by the regulations, the regulations specifically state that
section 212(d)(3) of the Act is being invoked and that the ground of
inadmissibility concerned is "waived.' /5/ Finally, we find it
significant that on November 28, 1957 the pertinent regulation was
amended to grant to an agricultural laborer a waiver of the ground of
inadmissibility arising out of lack of permission to reapply following a
deportation. /6/
The language of the regulations in effect at the time the applicant
was recontracted in September 1955 constituted an unambiguous blanket
grant of permission to reapply to eligible aliens who sought to enter as
agricultural workers. Applicant was an eligible applicant, he sought to
enter as an agricultural worker; the grant therefore attached to him
and could not be qualified in any way.
We must now consider the fact that applicant failed to reveal the
truth concerning his deportations when he applied for a visa. This
concealment was done on the advice of a person to whom applicant had
gone for help in filling out his preliminary application. This advice
was given to applicant after the applicant had revealed that he was
confused as to the dates of the deportation. Both applicant and the
scribe appear to have been convinced that the failure to know the exact
dates was a serious matter. While we do not condone applicant's failure
to reveal the truth, the fact is that he was admissible at the time he
applied for the visa. The applicant has made an unrefuted showing that
he was eligible to enter. Applicant has no arrest record. He has been
steadily employed in the United States for many years and was regularly
found worthy of being rehired as an agricultural laborer. We believe
the applicant has established that inquiry would not have revealed any
reasonable ground for the proper denial of the visa.
The appeal of the Officer in Charge will be dismissed.
ORDER: It is ordered that the appeal of the Officer in Charge be and
the same is hereby dismissed.
(1) Now section 212(a)(17) of the Immigration and Nationality Act, 8
U.S.C. 1182(a)(17).
(2) Now section 212(d)(3) of the Immigration and Nationality Act, 8
U.S.C. 1182(d)(3).
(3) It had also been settled since March 10, 1948 that permission to
reapply must be granted outright or denied, and that where permission to
reapply had been granted, an attempted limitation was ineffective.
(4) * * * Permission to reapply is granted in the case of a person
who was deported from the United States prior to March 1, 1959, and on
March 1, 1959, and at the time of his application for a visa, or at the
time of application for admission if a visa is not required, has a
parent, spouse, or child who is a United States citizen or an alien
lawfully admitted to the United States for permanent residence, except
that this grant of permission to reapply shall not be regarded as a
waiver of grounds of excludability as provided in section 5 or 7 of the
Act of September 11, 1957. (8 CFR 212.2, 24 F.R. 1460, February 27,
1959)
(5) Pursuant to the authority contained in section 212(d)(3) of the
Immigration and Nationality Act, a ground of inadmissibility contained
in section 212(a)(24) of the act is waived in the case of an alien,
otherwise admissible under the immigration laws, who is in possession of
appropriate documents or has been granted a waiver thereof and is
seeking admission to the United States as a nonimmigrant (18 F.R. 3528,
June 19, 1953, 8 CFR 212.8(b)).
(6) Previous removal, deportation; permission to reapply. Pursuant
to the authority contained in section 212(d)(3) of the act, the bar to
admissibility contained in paragraph (16) or (17) of section 212(a) of
the act is hereby waived for an alien who establishes that he is
otherwise admissible as an agricultural worker under the provisions of
this part, except for his previous removal or deportation because of
entry without inspection or lack of required documents (22 F.R. 9518,
November 28, 1957, 8 CFR 214k.7).
A native of Canada, who is ineligible to obtain a nonquota immigrant visa because of his prior criminal convictions, comes within the proviso of section 244(f)(3) of the Immigration and Nationality Act, as amended, and is, therefore, eligible for suspension of deportation under section 244(a)(1) of the Act, as amended, having satisfied all the statutory requirements for such relief.
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at entry, previously deported.
Lodged: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry, crime prior to entry.
The case comes forward pursuant to certification of the decision of
the special inquiry officer dated January 31, 1963 denying the motion of
the District Director dated December 21, 1962 to reconsider the order of
the special inquiry officer dated December 14, 1962 granting suspension
of deportation under section 244(a)(1) of the Immigration and
Nationality Act as amended.
The record relates to a native and citizen of Canada, 45 years old,
male, married, who first entered the United States as a child in 1924.
He was deported in 1936 after the commission of several crimes. He
returned illegally in 1937, and was deported again on July 8, 1948. He
has never applied for nor received permission to return to the United
States. The respondent last entered the United States at Niagara Falls,
New York on January 12, 1952. He is deportable as charged in the order
to show cause.
The respondent was convicted on December 22, 1933 in the City Court,
Buffalo, New York of the offense of petty larceny. He was similarly
convicted in February 1936. Larceny is a crime involving moral
turpitude. The respondent is subject to deportation on the lodged
charge also.
The respondent has applied for suspension of deportation under
section 244(a)(1) of the Immigration and Nationality Act, as amended.
He began living with the woman who is now his wife in 1942 and did not
legalize their marital status until they married each other on July 4,
1953. His wife is a legal resident alien. They have three children,
all native-born citizens of the United States, who are 8, 16, and 19
years of age, all of whom reside at home with their parents. The oldest
child is now employed and the respondent's wife and other two children
are not employed.
As has been pointed out by the special inquiry officer, the
respondent meets all the requirements of section 244(a)(1) of the
Immigration and Nationality Act, as amended, including extreme hardship
to his legal resident wife and at least two of the United States citizen
children in the event he were deported; good moral character; no
connection with subversive groups; registration under the Selective
Training and Service Act during World War II; and adequate length of
residence.
The motion to reconsider dated December 21, 1962 was based upon the
amendment to section 244 of the Immigration and Nationality Act by the
Act of October 24, 1962, and incorporated a reference to Board of
Immigration Appeals decision, file A-15685290 (November 5, 1962). In
the latter case, Matter of Vara-Rodriguez, Int. Dec. No. 1254, we held
that an alien who entered the United States as a crewman is not
statutorily ineligible for voluntary departure under section 244(f) of
the Immigration and Nationality Act as amended by the Act of October 24,
1962. This case has no application to the situation before us.
Section 244(f)(3) of the Immigration and Nationality Act as amended
by the Act of October 24, 1962 provides as follows:
(f) No provision of this section shall be applicable to an
alien who * * * (3) is a native of any country contiguous to the
United States * * * provided that the Attorney General may in his
discretion agree to the granting of suspension of deportation to
an alien specified in clause (3) of this subsection if such alien
establishes to the satisfaction of the Attorney General he is
ineligible to obtain a nonquota immigrant visa.
As pointed out by the special inquiry officer in denying the motion
to reconsider, this language is essentially the same language as
contained in section 244(b) of the Immigration and Nationality Act (8
U.S.C. 1254(b)) prior to its amendment on October 24, 1962, the language
therein reading as follows:
* * * the provisions of this subsection shall not be applicable
to any alien who is a native of any country contiguous to the
United States or any adjacent island, unless he establishes to the
satisfaction of the Attorney General that he is ineligible to
obtain a nonquota immigrant visa.
Thus it can be seen that the amendatory act differed in nowise from
its predecessor. In Conference Report No. 2552, Statement of the
Managers on the part of the House, as appended to No. 18 U.S. Code
Congressional and Administrative News (87th Cong., 2d Sess.), p. 5489,
the only reference to the amended language is a statement that it
specifically excludes the granting of relief to (1) alien crewmen, (2)
persons who entered the United States under educational exchange
programs, and (3) natives of countries continguous to the United States
or islands adjacent to the United States with certain specified
exceptions. In commenting on the prior law regarding suspension of
deportation section 19(c) of the Act of February 5, 1917, as amended,
the existing law of suspension of deportation was criticized on the
ground that it did not appear that the law is prompted by any necessity
to give relief to aliens who were nationals of territory adjacent to the
United States; and that alien parents and many alien children entered
the United States illegally from territories contiguous to the United
States, and suspension of deportation was granted the parents if serious
economic detriment would result to the citizen child if the parents were
deported, that the cases of alien children were held in abeyance pending
determination of the parents' applications for suspension of deportation
and that if the parents finally received suspension of deportation and
thus became legally resident aliens, application is then made in behalf
of the minor alien children. /1/ The law as finally enacted prohibited
the grant of suspension of deportation to natives and citizens of
continguous territory unless they were able to establish that they were
ineligible to obtain nonquota immigrant visas.
The respondent, who is a native and citizen of Canada, is ineligible
to receive a nonquota visa because of the commission of the crimes which
form the basis for the lodged charge of inadmissibility. Although the
respondent might be able to obtain the issuance of a visa with the grant
of a waiver of the grounds of inadmissibility pursuant to section 5 of
the Act of September 11, 1957 (now section 212(g) of the Immigration and
Nationality Act as amended by section 14 of the Act of September 26,
1961), it might not be easily accomplished; and he would be compelled
to wait outside the United States, away from his family, who would be
forced to seek public relief in his absence.
While the legislative history is silent except as otherwise indicated
on the point of granting suspension of deportation to natives of
countries contiguous to the United States, the plain language of both
sections 244(b) and 244(f)(3) of the Act as amended by the Act of
October 24, 1962, is that the benefits of section 244(a)(1) may not be
granted to an alien of contiguous territory unless he establishes that
he is ineligible to obtain a nonquota immigrant visa. The alien in the
instant case, who is a native of Canada, falls squarely within this
proviso. Our attention has been called to no case in which suspension
of deportation has been denied to such an alien and our recollection is
to the contrary. The case relied upon in the motion to reconsider and
referred to by the trial attorney has been shown to be not applicable.
It is concluded that this alien, a native of Canada, who satisfies all
the statutory grounds for eligibility for suspension of deportation, and
who is ineligible to obtain a nonquota immigrant visa because of his
prior convictions of crimes, is eligible for suspension of deportation.
The order of the pecial inquiry officer dated December 14, 1962 will be
approved.
ORDER: It is ordered that the order of the special inquiry officer
dated December 14, 1962, ordering that the deportation of the respondent
be suspended under the provisions of section 244(a)(1) of the
Immigration and Nationality Act, as amended, be and the same is hereby
approved.
(1) Senate Report No. 1515, Report of the Committee on the Judiciary
pursuant to Senate Resolution 137 (81st Cong., 2d Sess.), pp. 600 601.
"Extreme hardship' within the meaning of section 244(a)(1) of the Immigration and Nationality Act of 1952, as amended by the Act of October 24, 1962, would result from the deportation of respondent, a 42-year-old native and citizen of China, who has resided continuously in the United States for a period of 11 years, in view of the great difficulty he would experience at his age in obtaining employment or in adjusting to life in a new country, and in view of the advanced age (72) and permanent disability of his partially-dependent United States citizen father.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant remained longer than permitted.
This case is before us on appeal from a decision of a special inquiry
officer denying the respondent's three applications mentioned above and
directing his deportation. For the reasons hereinafter mentioned, we
will grant the application for suspension of deportation, and the other
applications need not be considered.
Discussion As To Deportability: The respondent is a 42-year-old
married male, native and citizen of China, who last entered the United
States on August 21, 1951 at which time he was admitted as a
nonimmigrant visitor authorized to remain in this country until November
21, 1951. He has remained in the United States without authority and
has conceded that he is deportable on the charge stated in the order to
show cause.
Discussion As To Eligibility For Suspension of Deportation: On
February 16, 1962 the respondent applied for suspension of deportation
under section 244(a)(5) of the Immigration and Nationality Act. Prior
to the decision of the special inquiry officer on December 20, 1962,
this statutory provision had been amended by section 4 of the Act of
October 24, 1962 (Public Law 87-885; 76 Stat. 1247). Originally
section 244(a) authorized the Attorney General to suspend deportation in
accordance with the statutory requirements which were set out. Since
such action had not been taken prior to the amendment of October 24,
1962, it follows that the respondent's case must be determined under the
applicable provision of the amended section, that is, Section 244(
a)(1).
The respondent was born on the mainland of China and lived there
until 1949. He stated that at that time he fled to Hong Kong because
the Communists were taking control of China. He left Hong Kong for
Central America in 1950. He was married in 1950 while still in Hong
Kong, and one child was born there of the marriage on March 5, 1951.
The respondent's wife and child still reside in Hong Kong and she is
employed there as a nursemaid in an orphanage. The respondent
contributes to their support by sending $50 to $100 monthly. He has
been employed in the United States as a waiter and now earns about $85
weekly. In his application for suspension of deportation, he stated
that his assets amounted to $2,350.
The respondent's statement of November 6, 1961 (Ex. 8, p. 2) contains
information verifying his admission as a nonimmigrant on August 21,
1951, and he has testified that he has not been absent on any occasion
since that date. The special inquiry officer concluded that the
respondent had been physically present in the United States for a
continuous period of at least ten years, and we are also satisfied from
the record as to the respondent's continuous physical presence in this
country since August 21, 1951. It follows that he meets the requirement
of section 244(a)(1), as amended, concerning physical presence in the
United States for a continuous period of not less than seven years.
The special inquiry officer also concluded that the respondent had
established good moral character during the statutory period. The
respondent testified that he had never been arrested or convicted of any
crime. A search of the local police records and a report received from
the Identification Division of the Federal Bureau of Investigation
indicate that the respondent has no criminal record. An independent
investigation conducted by the Service was favorable to the respondent.
We conclude that the respondent has established his good moral character
during the seven years preceding his application.
Prior to the amendment of October 24, 1962, the five paragraphs of
section 244(a) required an applicant to establish that his deportation
would result "in exceptional and extremely unusual hardship' to the
alien or to his citizen or legally resident spouse, parent or child.
This same language was retained in amended section 244(a)(2), but in
amended section 244(a)(1), which is involved here, the language was
changed to require the alien to establish that his deportation would
result "in extreme hardship' to him or to his citizen or legally
resident spouse, parent or child. Although the special inquiry officer
held that extreme hardship meant something less than exceptional and
extremely unusual hardship, he was not satisfied that the respondent's
case met this statutory requirement.
The respondent asserts that his deportation would result in extreme
hardship to him and to his father. The latter has lived in this country
since his lawful admission on September 20, 1922, and he was naturalized
as a United States citizen on June 27, 1958. On November 6, 1961 the
respondent testified that his father was partially paralyzed, and the
record contains a certificate (Ex. 10) from a physician indicating that
the respondent's father has been under his medical care since March 8,
1960 and is permanently disabled. From 1952 until recently, the
respondent lived with his father in Los Angeles but the latter, who is
72 years old, is now in the International Guest Home in that city. The
respondent testified that the cost of his father's maintenance is about
$125 per month; that this is paid by Los Angeles County; that his
father has no income; that he receives an old age pension of $125 which
he returns to the International Guest Home; that he (the respondent)
contributes about $50 monthly toward his father's support and care; and
that he takes his father to the doctor each week (pp. 13-15).
Apparently the respondent and his father have no close relatives in the
United States. In view of the father's advanced age and physical
condition, we believe it would be extremely harsh, both to the
respondent and his father, to deport this alien from the United States.
The respondent states that he desires to bring his wife and son to
the United States from Hong Kong. He testified that he has never been a
member of the Communist Party of any country and has not been a member
of any organization affiliated with the Party, and there is nothing to
indicate such membership. He testified that he fears physical
persecution if returned to Communist China because he is opposed to
communism and fled China for that reason. However, the special inquiry
officer did not direct deportation to Communist China but to the
Republic of China on Formosa or to Hong Kong. The respondent also
stated that he cannot return to Hong Kong because he never established
residence there. The respondent has lived continuously in Los Angeles
since March 1952 -- a period of 11 years. If the respondent were
deported to Formosa or Hong Kong, we believe he would experience great
difficulty in obtaining employment or in adjusting to life in a new
country, particularly since he is now 42 years of age.
In view of the foregoing, it is our considered opinion that the
respondent's deportation would result in extreme hardship to him and to
his United States citizen father. Hence, his case meets all the
statutory requirements of section 244(a)(1) of the Immigration and
Nationality Act as amended. We also believe that this case merits the
exercise of the discretion to suspend deportation. Accordingly, the
respondent's application for suspension will be granted.
ORDER: It is ordered that the order of deportation entered by the
special inquiry officer be withdrawn and that the deportation of the
alien be suspended under the provisions of section 244(a)(1) of the
Immigration and Nationality Act as amended.
It is further ordered that if the Congress takes no action adverse to
the order granting suspension of the alien's deportation, the
proceedings be cancelled, and the alien, if a quota immigrant at the
time of entry not then charged to the appropriate quota, be so charged
as provided by law.
It is further ordered that in the event the Congress takes action
adverse to the order granting suspension of deportation, these
proceedings shall be reopened upon notice to the respondent.
Where conspiracy indictment does not contain an allegation that the alien procured a visa by fraud his conviction under the indictment will not under the doctrine of collateral estoppel establish his deportability under section 212(a)(19) of the Immigration and Nationality Act.
CHARGES:
Order: Act of 1952 -- Section 241(c) 8 U.S.C. 1251(c) -- Failed or refused to fulfill marital agreement made to procure entry as immigrant.
Lodged: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at entry under 8 U.S.C. 1182(a)(19) -- Visa procured by fraud or misrepresentation.
Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at
entry under 8 U.S.C. 1182(a)(20) -- Immigrant visa not valid.
This case is before us on appeal from a decision of a special inquiry
officer directing the respondent's deportation.
The respondent is a 30-year-old married male, native and citizen of
Portugal, who last entered the United States on June 27, 1958 at which
time he was admitted as a nonquota immigrant on the basis of his
marriage on April 14, 1958 to Mary McCabe, a United States citizen. He
was previously in the United States from September 1956 to May 1958.
The Service takes the position that the respondent's marriage was not a
bona fide one and that its only purpose was to secure nonquota status
for him. On January 19, 1962 he was convicted of conspiracy to violate
8 U.S.C. 1325. The Government abandoned the charge stated in the order
to show cause and the second lodged charge and relied solely on the
first lodged charge (p. 11). The special inquiry officer concluded that
this charge was sustained. The only issue to be determined is whether
the respondent is deportable on the charge mentioned.
The examining officer stated (p. 17) that the Government would rely
on the doctrine of collateral estoppel, and the special inquiry officer
based his decision on that theory, citing Matter of C , 8 I. & N. Dec.
577 (1960), and Matter of T , Int. Dec. No. 1115 (1960). There the
courts had made specific findings of fact which precluded relitigation
of the same facts in the deportation proceedings. The record before us
does not show that the court made findings of fact in the criminal
proceeding, and the special inquiry officer has not referred to any
specific findings as having been made in that proceeding. Accordingly,
the two cases upon which the special inquiry officer relied are not
analogous.
The two cases mentioned above were cited by the examining officer as
well as the unreported case of Sifuentes v. Rogers (S.D. Cal., 1960);
United States v. Rangel-Perez, 179 F.Supp. 619 (S.D. Cal., 1959); and
Matter of Z , 5 I. & N. Dec. 708 (1954). We do not believe that the
Sifuentes case has any applicability. In the Rangel-Perez case, the
question in the second criminal proceeding was whether the doctrine of
collateral estoppel could be invoiced against the defendant as to the
issue of alienage because of an earlier conviction, and the court
specifically said (p. 626) that it was beyond dispute that a finding of
fact that the defendant was then an alien had been made in the first
criminal proceeding and that this finding had been necessary to a
judgment of guilt. We have already indicated that the record in the
respondent's case does not show what findings of fact were made in the
criminal proceeding. With respect to Matter of Z , supra, that case is
distinguishable because the alien had been convicted under 18 U.S.C.
1546 which relates inter alia to receiving an immigrant visa knowing
that it was procured by means of any false claim or statement, whereas
the respondent was convicted of conspiracy to violate an entirely
different statutory provision.
There is included in Exhibit 3 the court's judgment of January 19,
1962 showing that the respondent was convicted "of the offense of
conspiracy (making false statement to Immigration and Naturalization
Service)'. Count one of the indictment also shows that the respondent
was not convicted of violating 8 U.S.C. 1325 but that he and Mary McCabe
Marinho were charged with conspiracy under 18 U.S.C. 371 to violate 8
U.S.C. 1325. There are statements in count one that it was part of the
plan and purpose of the conspiracy that the two defendants would do
certain acts but it was not stated that the acts were actually done
except insofar as concerns the overt acts which were set out. One of
these is that the respondent entered the United States on June 27, 1958.
However, the indictment does not specifically charge that he procured
an immigrant visa.
8 U.S.C. 1325, which the defendants conspired to violate, applies to
obtaining entry to the United States by a willfully false or misleading
representation or the willful concealment of a material fact, but it
does not relate to procurement of a visa. Exhibit 2 shows that the
deportation charge on which the Service relies is based on that part of
8 U.S.C. 1182(a)(19) which refers to an alien who has procured a visa by
fraud or by willfully misrepresenting a material fact. Under the
circumstances, we conclude that the doctrine of collateral estoppel is
not applicable to the respondent's case and that his conviction standing
alone is insufficient to meet the requirement of 8 U.S.C. 1252(b)(4)
that a decision of deportability must be based upon reasonable,
substantial and probative evidence.
Under 8 CFR 242.18(a), a formal enumeration of findings is not
required but it is provided that the decision of the special inquiry
officer shall include findings as to deportability. Such findings were
not made in the respondent's case, and it is impossible to determine
from this record whether the special inquiry officer found that the
respondent procured his visa by both fraud and misrepresentation, by
fraud only, or by misrepresentation only. If the latter, there should
be set forth the specific statement in the visa application which
constituted a misrepresentation. The immigrant visa was not made part
of the record.
In his notice of appeal, counsel contended that the marriage between
the respondent and Mary McCabe was consummated and that it is an
existing legal and valid marriage. In his statement of November 5, 1959
(Ex. 5, pp. 14, 22-23), the respondent stated that he had had sexual
relations with his wife. On April 3, 1962 (Ex. 4, p. 5), he stated that
he "never lived with her as a wife'. At the hearing on June 27, 1962
(p. 26), the respondent answered affirmatively when asked whether he
ever had sexual intercourse with this woman after their marriage. No
further questions were asked as to when this occurred or whether it
occurred on more than one occasion. This may or may not have a bearing
on the question of whether the visa was procured by fraud or
misrepresentation, but we believe this matter should be developed.
8 CFR 3.1(d)(2) provides that the Board may return a case to the
Service for further action without entering a final decision on the
merits. In view of what we have said above, we consider it appropriate
to reopen the hearing and remand the case to the Service for further
development of the record.
ORDER: It is ordered that the outstanding order of deportation be
withdrawn; that the hearing be reopened for further action in
accordance with the foregoing; and that the case be remanded to the
Service pursuant to 8 CFR 3.1(d)(2).
On October 22, 1962 we directed that the hearing be reopened and that
the case be remanded to the Service. The case is now before us pursuant
to a motion of the Service requesting reconsideration.
The respondent is a 30-year-old married male, native and citizen of
Portugal, who last entered the United States on June 27, 1958 at which
time he was admitted as a nonquota immigrant on the basis of his
marriage on April 14, 1958 to Mary McCabe, a United States citizen. He
was previously in the United States from September 1956 to May 1958.
The special inquiry officer held that the first ledged charge was
sustained on the basis of the respondent's conviction on January 19,
1962 and under the doctrine of collateral estoppel by judgment.
The Service asserted (motion, p. 2) that the respondent was convicted
of a violation of 8 U.S.C. 1325. However, it is apparent from the
court's judgment of January 19, 1962 (part of Ex. 3) that he was
actually convicted of conspiracy under count one of the indictment.
Count one shows that the respondent and Mary McCabe Marinho were charged
with conspiracy under 18 U.S.C. 371 to violate 8 U.S.C. 1325. In
Pinkerton v. United States, 328 U.S. 640, 643 (1946), it was said: "It
has been long and consistently recognized by the Court that the
commission of the substantive offense and a conspiracy to commit it are
separate and distinct offenses.' Under the circumstances, we do not
believe it can be said that the respondent was convicted of violating 8
U.S.C. 1325. In addition, although fraudulent procurement of a visa
appears to be within the purview of 18 U.S.C. 1546, it is clear that 8
U.S.C. 1325 does not relate to procurement of a visa.
At the hearing (pp. 11 12), the examining officer stated that the
Government wished to abandon charges #1 (stated in the order to show
cause) and #3, and would rely solely on charge #2 (the first lodged
charge). The special inquiry officer sustained the latter charge and
did not discuss the other two charges in his decision. In our previous
order, we mentioned this but we observe that the Service now asserts
(motion, pp. 6 and 7) that all the charges are sustained. With the
exception of this general statement, however, the motion contains no
specific argument that charges #1 and #3 have been established. Since
these two charges were not even considered by the special inquiry
officer, we deem it appropriate to limit our discussion to the first
lodged charge. If the Service desires to reinstate the two charges
which it abandoned, such a request may be made to the special inquiry
officer during the reopened hearing.
In our previous decision, we stated that the special inquiry officer
failed to make findings as to deportability; that it was impossible to
determine from this record whether the special inquiry officer found
that the respondent procured his visa by both fraud and
misrepresentation, by fraud only, or by misrepresentation only; and
that, if it was the latter, there should be set forth the specific
statement in the visa application which constituted a misrepresentation.
We indicated that the visa, showing the misrepresentation, should have
been included in the record. The Service stated that it did not object
to a remand of the case to the special inquiry officer for appropriate
findings of fact and conclusions of law but suggested that the Board
hold that the charges are sustained and make its own findings. While
this Board has authority to make findings of fact and conclusions of
law, we do not consider that it would be proper to do so in this case
since 8 CFR 242.18(a) contemplates that this shall be done by the
special inquiry officer in the first instance, and Bridges v. Wixon, 326
U.S. 135, 153 (1945), indicates the necessity for officers of the
Service to comply with its regulations.
After stating in its motion that it did not object to a remand of the
case for the limited purpose stated above, the Service said that it was
opposed to any full scale reopening of the hearing for exploration of
issues which it asserts are foreclosed by the pleadings and under the
doctrine of collateral estoppel. The Service does not claim that the
pleadings alone would be sufficient, and that appears to have been the
view also of the special inquiry officer who relied on the doctrine of
collateral estoppel. We shall indicate later herein why the doctrine of
collateral estoppel cannot be utilized in this case and why there is a
doubt as to whether the respondent admitted the ninth factual
allegation. Accordingly, we shall permit the Service and the respondent
to present any pertinent evidence at the reopened hearing. We believe
there should be a clarification at that time concerning exactly what the
respondent admits and denies and with respect to his conflicting
testimony on November 5, 1959, April 3, 1962 and June 27, 1962 as to
whether he did or did not have sexual intercourse with his wife. The
Service asserts that the alien's statements (Ex. 4) sustain the charges.
The special inquiry officer did not discuss nor even mention Exhibit 4
in his decision but this can be done when he reconsiders the case.
The factual allegations particularly important in the respondent's
case are allegations seven and nine which are part of the two charges
lodged on May 22, 1962. At that time, the special inquiry officer
stated (p. 7) that, since the respondent denied deportability on these
charges and the factual allegations, he would not be asked to plead to
the truth or falsity of the allegations. At the reopened hearing,
counsel stated that he denied deportability on the first lodged charge
and was then asked to examine factual allegations seven through twelve
and state which he was prepared to admit or deny. He stated (p. 13)
that allegations seven and twelve were denied and the other allegations
were admitted. There is some inconsistency in the denial of allegation
seven concerning the asserted agreement for a fraudulent marriage, and
the admission of allegation nine relating to the application for an
immigrant visa which also contains an allegation that the marriage was
fraudulent.
After counsel had indicated which factual allegations were admitted
and denied, the special inquiry officer thereafter explained factural
allegations seven to twelve to the respondent, and we observe that the
respondent had difficulty understanding the explanation of the ninth
factual allegation but finally said (p. 15): "I understand that, but
--' at which point the special inquiry officer interrupted and said that
he had not asked the respondent to deny it.
Subsection (d) of 8 CFR 242.16 relates to the lodging of additional
charges and provides that the special inquiry officer shall read the
additional factual allegations and charges to the respondent and explain
them to him in nontechnical language. Thereafter, the provisions of
subsection (b) of that regulation apply, and this provides that the
respondent shall plead to the charges by stating whether the admits or
denies the factual allegations and his deportability. As we have
indicated above, the charges were not explained to the respondent until
after his counsel had been requested to state what factual allegations
were admitted or denied. Allegation nine, containing 12 typewritten
lines, is long and involved and some of the assertions are not
controverted by the respondent. Inasmuch as the regulations were not
strictly complied with and in view of the thwarting of the respondent's
attempt to explain his position concerning factual allegation nine, we
are not satisfied that there was a valid admission of the truth of all
assertions contained in this factual allegation.
In our previous decision, we pointed out certain deficiencies in the
record and we concluded that, pursuant to 8 CFR 3.1(d)(2), the case
should be returned to the Service for further action without the entry
of a final decision by this Board on the merits. Under the
circumstances, we shall not at this time determine whether the first
lodged charge might be sustained on some basis other than that of
collateral estoppel, as for example, the pleadings, admissions of the
respondent in this proceeding or in the criminal proceeding, or
inferences to be drawn from the respondent's conviction. We shall,
however, dispose of the contention of the Service relating to collateral
estoppel.
In connection with this contention, the only cases cited by the
Service were: Yates v. United States, 354 U.S. 298 (1957); Lutwak v.
United States, 344 U.S. 604 (1953); United States v. Accardo, 113 F.
Supp. 783 (D.N.J., 1953), aff'd 208 F.2d 632, cert. den. 347 U.S. 952;
Matter of S , Int. Dec. No. 1221 (1962); and Matter of C , 8 I. & N.
Dec. 577 (1960). Yates, as we shall later indicate, is actually adverse
to the position of the Service.
Lutwak did not involve collateral estoppel. The quotation from that
decision (motion, p. 7) related to the contention of those petitioners
that their marriages were valid. The court declined to pass on the
validity of the marriages, stating that this was not material. On page
5 of the motion, the Service quoted from a sentence in the Lutwak
decision which reads, in part, as follows: "There is an abundance of
evidence in this record of a conspiracy to contract spurious, phony
marriages * * *.' We shall not at this time consider the validity of the
respondent's marriage, but the fact that there was an abundance of
evidence that the Lutwak marriages were spurious is of no assistance in
determining whether there is such evidence in the respondent's case.
The language which the Service quoted from the Accardo decision
simply means that, after Accardo had been convicted of conspiring to
operate an unregistered still, he could not deny his guilt of the
conspiracy in the subsequent denaturalization suit. This respondent
makes no claim that he was innocent of the offense for which he was
convicted, and the Accardo decision is of no value in sustaining the
argument of the Service.
Matter of S did not involve collateral estoppel. There, we held that
the alien was excludable because he had been convicted of a crime
involving moral turpitude -- conspiracy to commit, among other offenses,
the crimes of forgery and uttering a forged instrument. He contended
that he had actually pleaded guilty only to that portion of the
conspiracy count relating to gambling. His exclusion was directly
predicated on the conviction, whereas this respondent is not charged
with being deportable by reason of the conviction itself. S was
attempting to controvert the conviction record; this respondent has
made no effort to attack the conviction nor does he claim that he
intended to plead guilty to only part of the conspiracy count. For the
reasons mentioned, Matter of S is not analogous to the respondent's
case.
The remaining case cited by the Service is Matter of C , supra.
There, we held that the court's finding in a denaturalization suit that
the naturalized person had been a member of the Communist Party was
conclusive, under the doctrine of collateral estoppel, in a subsequent
deportation proceeding against that person based on his Communist Party
membership. In the similar case of Matter of T , Int. Dec. No. 1115
(1960), we reached the same conclusion. In those two cases, the records
in the denaturalization suits established that the courts had made the
findings concerning Communist Party membership. As we pointed out in
our previous order, the record relating to the respondent's conviction
does not show what specific findings of fact may have been made in that
proceeding, and the special inquiry officer's decision does not clarify
that matter. We do not mean that there must have been formal findings
of fact in the first action providing that it can be determined
definitely what facts or issues were actually decided by the court.
Our decisions in Matter of C and Matter of T , supra, were predicated
on the principles stated in Cromwell v. County of Sac, 94 U. S. 351
(1876) and Southern Pacific Railroad Co. v. United States, 168 U.S. 1
(1897). In the former, at page 353, it was said: "* * * where the
second action between the same parties is upon a different claim or
demand, the judgment in the prior action operates as an estoppel only as
to those matters in issue or points controverted, upon the determination
of which the finding or verdict was rendered.' Under the doctrine of
collateral estoppel, the point or question to be determined in the
second action must be the same as that litigated in the original action
and it must have been a fact which was essential to the first decision.
Tait v. Western Maryland Railway Co., 289 U.S. 620, 623 (1933). If
there is any uncertainty as to the precise question determined in the
first suit and the uncertainty is not removed by extrinsic evidence, no
estoppel is created. De Sollar v. Hanscome, 158 U.S. 216, 221 (1895);
Russell v. Place, 94 U.S. 606, 608, 610 (1877).
There appears to be no dispute between the parties concerning the
fact that the respondent last entered the United States on June 27, 1958
and that he was then admitted as a nonquota immigrant on presentation of
an immigrant visa which had been issued on the basis of his marriage to
Mary McCabe. As a matter of fact, the third and fourth factual
allegations are to that effect and these were admitted by the
respondent. However, the crucial question is whether he procured his
immigrant visa by fraud or misrepresentation.
Although there are allegations in count one of the indictment that it
was part of the plan and purpose of the conspiracy that the respondent,
Mary McCabe Marinho and two other persons would do certain acts,
including allegations that the respondent would execute an application
for immigrant visa and that the State Department would issue a nonquota
visa to the respondent, the indictment does not specifically state
whether these acts were or were not performed except insofar as concerns
the five overt acts which were set out. None of the overt acts relates
to the respondent's procurement of his immigrant visa, and there is no
specific allegation in the indictment that the respondent procured his
immigrant visa by fraud or misrepresentation or even that he procured a
visa. Hence, if we accepted every allegation of the indictment as
having been proved, that would still not establish that an issue
actually litigated and determined in the criminal case was whether the
respondent procured his immigrant visa by fraud or misrepresentation,
nor that this issue was essential to the judgment in that proceeding.
In view of the foregoing, those elements which are prerequisites to the
application of the doctrine of collateral estoppel do not exist in the
respondent's case.
The ultimate fact which must be determined in this deportation
proceeding is whether the respondent procured his immigrant visa by
fraud or misrepresentation. In Yates v. United States, supra, which was
cited by the Service, the following statement was made at page 338:
"The normal rule is that a prior judgment need be given no conclusive
effect at all unless it establishes one of the ultimate facts in issue
in the subsequent proceeding. So far as merely evidentiary or "mediate'
facts are concerned, the doctrine of collateral estoppel is
inoperative.' We believe this statement of the Supreme Court makes it
abundantly clear that the doctrine of collateral estoppel is
inapplicable in this respondent's deportation case. For the reasons
indicated above, the motion of the Service will be denied.
ORDER: It is ordered that the motion of the Service for
reconsideration, except as reconsidered herein, be and the same is
hereby denied.
An administrative appeal from a denial of suspension of deportation pending on October 24, 1962, the date of enactment of Public Law 87-885, must be dismissed in the case of an alien who entered the United States as a crewman since he is statutorily precluded by section 244(f) from obtaining the benefits of suspension under the provisions of the amendatory legislation.
CHARGE:
Warrant: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) --
Failed to comply -- nonimmigrant seaman -- Act of 1924.
The case comes forward on appeal from the order of the special
inquiry officer dated October 22, 1962 denying the respondent's
application for suspension of deportation under section 244(a)(5) of the
Immigration and Nationality Act, granting him the privilege of voluntary
departure in lieu of deportation and further ordering that if the
respondent failed to depart as required he be deported to the Republic
of China on Formosa on the ground stated above.
The record relates to a native and citizen of China, 50 years old,
male, who last entered the United States at the port of Philadelphia,
Pennsylvania on August 17, 1950 as a member of the crew of the SS
"Ulysses.' Deportability has been conceded.
The case was last before us on November 6, 1961 on appeal from an
order entered by the special inquiry officer on September 6, 1961,
denying the respondent's motion requesting a reopening of the
proceedings for the purpose of affording him an opportunity to apply for
suspension of deportation under section 244(a)(5) of the Immigration and
Nationality Act because respondent had been served with a final order of
deportation. It appears that a warrant of arrest was served on the
respondent on April 26, 1954 but a hearing record does not exist. A
hearing was accorded the respondent on August 25, 1961 in connection
with the motion to reopen to permit respondent to apply for suspension
of deportation under section 244(a)(5) of the Immigration and
Nationality Act and portions of a record were reconstructed from
documents available in the administrative file. These documents
indicated that the respondent may have been accorded a hearing in
deportation proceedings at New York on October 31, 1955 when a
communication was addressed to him advising him of the voluntary
departure privilege and if he failed to depart as directed he would be
deported if he did not depart prior to December 2, 1955. An application
for adjustment of immigration status under section 6 of the Refugee
Relief Act of 1953 failed of approval of the 85th Congress and on June
12, 1958 he was notified to effect his departure from the United States
on or before July 12, 1958. He failed to depart and the respondent was
notified on September 4, 1958 that his deportation to China had been
directed. On the same date a warrant was issued providing for his
deportation under section 241(a)(2) of the Immigration and Nationality
Act although the warrant of arrest served on him on April 26, 1954
charged him with being illegally in the United States under section
241(a)(9) of the Immigration and Nationality Act in that after admission
as a seaman under section 3(5) of the Immigration Act of 1924 he failed
to comply with the conditions of such status. Faced with the lack of a
hearing record and the confusion existing in the administrative file, it
was concluded that the requirements of section 242(b)(4) were lacking.
In view of the difficulty, if not the impossibility, of determining
whether or not a final order of deportation had been entered in the
case, it was ordered that the case be remanded for further proceedings
in order to complete the record and to afford the respondent an
opportunity to apply for such relief as might be available, if any.
At the hearings before the special inquiry officer held on December
15, 1961 and May 10, 1962 the respondent applied for suspension of
deportation pursuant to section 244(a)(5) of the Immigration and
Nationality Act. The respondent's wife and child reside in China and he
has no close relatives in the United States. He has resided in the
United States continuously since his last admission on August 17, 1950.
The respondent first entered the United States in 1943 as a seaman and
claims to have lived here since November 1945 except for his various
absences as a seaman until August 1950. He is employed as a cook
earning $97 per week. His assets consist of $1,100 in savings; $1,500
in stock and $1,000 in miscellaneous personal effects. The quota for
Chinese persons to which the respondent is chargeable is greatly
oversubscribed at the present time and he cannot readily obtain an
immigrant visa if granted the privilege of voluntary departure. The
respondent has no arrest record except an arrest in October 1961 on a
charge of disorderly conduct which was dismissed. No evidence has been
produced showing any connection with subversive groups. The character
investigation is favorable. An employment certificate and affidavits of
witnesses establish that respondent has been continuously physically
present in the United States since August 1950.
The special inquiry officer has found that respondent's deportation,
while it would undoubtedly entail some hardship to him, such hardship
failed to satisfy the "exceptional, extremely and unusual' hardship
requirement of the Immigration and Nationality Act and as a result he
was ineligible for suspension of deportation. Furthermore, the special
inquiry officer found that, even assuming respondent met the minimum
statutory requirements for eligibility for suspension of deportation,
and despite his maritime service of approximately 16 months during World
War II between December 1942 and March 1944 and December 1944 and
January 1945, in view of respondent's repeated conflicts with the
immigration laws and the fact that he has eked out the period since
April 1954 while under deportation proceedings, and in view of the lack
of family ties in the United States, as a matter of administrative
discretion suspension of deportation would not be granted, and that the
maximum relief granted the respondent would be that of the privilege of
voluntary departure in lieu of deportation.
The decision of the special inquiry officer was rendered on October
22, 1962. Two days afterward there was enacted the Act of October 24,
1962 (Public Law 87-885; 76 Stat. 1247; 8 U.S.C.A. 1254, C.A.P.P.
1962), section 4 of which amended section 244 of the Immigration and
Nationality Act (8 U.S.C. 1254) in several important respects. Among
other things, section 244(a) was changed from the former five
subparagraphs into two subparagraphs. The respondent's case would
appear to fall within section 244(a)(1) of the Act as amended by section
4 of Public Law 87-885. This new section requires seven years'
residence in the United States preceding the date of the application and
requires the person to establish that his deportation would result in
extreme hardship to the alien. Ordinarily we would remand the case to
the special inquiry officer for reopening and reconsideration in view of
the less stringent requirements of section 244 of the Immigration and
Nationality Act as newly amended by section 4 of Public Law 87-885.
However, the same section 4 of Public Law 87-885 added a new
subparagraph (f) to section 244 to the effect that no provision of that
section should be applicable to an alien who entered the United States
as a crewman (as well as excluding certain other classes from the
benefits of the amendatory legislation). No purpose, therefore, would
be served in reopening the case for consideration under section 244(a)(
1), as amended by the Act of October 24, 1962, since the new
subparagraph (f) renders moot the respondent's eligibility for that form
of discretionary relief, inasmuch as he last entered the United States
as a crewman.
The respondent was still the subject of administrative adjudication
and had not established any right to the future status of a permanent
resident he was seeking to obtain by his application; accordingly, the
amendment is not being given any retrospective application. No savings
clause was enacted as a part of the Act of October 24, 1962 in contrast
to the savings clause enacted in section 405(a) of the Immigration and
Nationality Act of 1952 which made specific reference to a pending
application for suspension of deportation under section 19 of the
Immigration Act of 1917 as amended on the date of the enactment of that
Act. The exclusion from the benefits of the amendatory legislation of
October 24, 1962 of the aliens enumerated in section 244(f), namely,
crewmen, exchange students and natives of contiguous countries or
adjacent islands, constitutes the expression of a clear Congressional
policy not to extend the benefits of the amendatory legislation to those
specified classes. Inasmuch as an approved application for suspension
of deportation would still require a referral to Congress, it would
appear inconsistent to hold crewmen eligible for the benefits of the
amended suspension of deportation from which they are specifically
barred. /1/ Even though the amendment of section 224(f) of the Act of
October 24, 1962 occurred subsequent to the date of the special inquiry
officer's decision but during the pendency of the administrative appeal,
the respondent, who entered as a crewman, is not now eligible for
consideration of suspension of deportation and his application for that
form of relief must be denied. /2/ The grant of voluntary departure in
lieu of deportation appears to be the maximum relief which can be
accorded the respondent. /3/
This conclusion disposes of the contentions of counsel, both at oral
argument and as set forth in his brief. The denial of the respondent's
application for adjustment of status under section 6 of the Refuges
Relief Act is not within our jurisdiction. We have noted the cases
cited by counsel in his brief but we do not find them to be applicable
to the situation before us. For the reasons already set forth, we find
an alien who entered as a crewman ineligible for suspension of
deportation under section 244(a) as amended.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Matter of Tarabocchia, Int. Dec. No. 1266 (February 11, 1963).
(2) Cf. Fassilis et al. v. Esperdy, 301 F.2d 429 (2d Cir., 1962);
also Hintopoulos v. Shaughnessy, 353 U.S. 72.
(3) Matter of Vara-Rodriguez, Int. Dec. No. 1254.
Respondent, born in Saipan May 5, 1933, has no claim under the Organic Act of Guam (August 1, 1950) to citizenship through his noncitizen national father by reason of the latter's birth in Guam in 1904, since under this provision of law citizenship does not extend to the children of the persons described therein.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of two crimes involving moral turpitude after entry, to wit,
petit theft and worthless checks.
An order entered by the special inquiry officer on December 3, 1962
terminates the above-captioned proceeding and certifies the case to the
Board of Immigration Appeals for final decision. Termination is based
primarily on a finding by the special inquiry officer that alienage has
not been established. The Service representative has submitted a
memorandum of law in support of his contention that the respondent has
no claim to United States citizenship under the Organic Act of Guam
enacted August 1, 1950 (64 Stat. 384). The Service representative
suggests that the case be remanded to the special inquiry officer for
further consideration following a ruling on the issue of alienage by the
Board of Immigration Appeals.
We will briefly review the facts concerning the issue of the
respondent's nationality. The respondent was born May 5, 1933 on
Saipan, Mariana Island, now a Trust Territory under the administrative
jurisdiction of the United States. His father was born of Guamanian
parents on the island of Guam, June 10, 1904 (Ex. 4). The respondent's
father was taken by his parents to the island of Saipan "sometime in
1912' (Ex. 4). He, the respondent's father, resided on Saipan from 1912
until his death on May 19, 1950 except for a 30-day visit to Guam in
1932 (Ex. 4). The respondent's mother, a native of Saipan, married the
respondent's father in Saipan on October 17, 1925 (p. 5 & Ex. 4).
A person born in Guam on or after April 11, 1899, and prior to
January 13, 1941, became a noncitizen national of the United States at
birth if his father at the time of such birth was an American noncitizen
national (Matter of S , 3 I. & N. Dec. 589, B.I.A., April 26, 1949).
The respondent's father acquired noncitizen nationality at birth since
the record shows that the respondent's grandfather was Guamanian at the
time of the birth of the respondent's father on June 10, 1904 (Ex. 4).
The special inquiry officer concludes that the respondent derived
United States citizenship through his noncitizen national father under
the provisions of the Organic Act of Guam /1/ notwithstanding the fact
that the respondent's father died on May 19, 1950, some two and one-half
months prior to the enactment of the said Act on August 1, 1950. The
special inquiry officer reasons that if the respondent's father were
alive on August 1, 1950 he (the respondent's father) would have acquired
United States citizenship. The special inquiry officer maintains that
the death of the respondent's father does not affect the respondent's
United States citizenship because as a child of a person born on the
island of Guam subsequent to April 11, 1899 and as one who was residing
on the island on the date of enactment of the Organic Act he (the
respondent) derived United States citizenship pursuant to paragraphs (a)
and (b) of section 206 of the Nationality Act of 1940 (8 U.S.C. 606-1950
Edition) (see Appendix A).
Section 206(a) of the Nationality Act of 1940 declares two classes of
persons and their children born after April 11, 1899 to be citizens of
the United States provided they were residing on the island on August 1,
1950. The respondent does not qualify under paragraph (a) of section
206 (supra) because (1) he is not a child of a Spanish subject who was
an inhabitant of the island of Guam on April 11, 1899 nor is he (2) the
child of a person "born in the island of Guam who resided in Guam on
April 11, 1899.' The respondent's father was born on Guam on June 10,
1904, some five years subsequent to the cutoff date of April 11, 1899.
Furthermore, the respondent's father gained nothing under section 206(a)
(supra) because he was deceased on the date of the enactment of the
Organic Act and according to the record had not resided on Guam since
1912 except for a temporary visit of 30 days in 1932 (Ex. 4).
Paragraph (b) of section 206 (supra) declares a third class of
persons to be citizens of the United States, to wit, "all persons born
in the island of Guam on or after April 11, 1899 . . . subject to the
jurisdiction of the United States' provided such person if born before
the date of enactment of the Act had "taken no affirmative steps to
preserve or acquire foreign nationality.' The respondent does not derive
citizenship through his father under this provision because it does not
extend to the children of the persons described therein. We conclude
that the respondent, born in Saipan, has no claim to derivative
citizenship under the Organic Act of Guam (Appendix A) by reason of his
father's birth in Guam in 1904.
The question arises as to whether the respondent was born a
noncitizen national of the United States. Prior to the effective date
of the Nationality Act of 1940, January 13, 1941, there were no
statutory provisions regulating the status at birth of children born
outside of the United States, its territories, and possessions to
noncitizen nationals of the United States. Section 204(b) of the
Nationality Act of 1940 /2/ provided in substance that a person born
outside of the United States and its outlying possessions on or after
January 13, 1941 "of parents both of whom are nationals, but not
citizens of the United States' who previously had resided in the United
States or one of its outlying possessions, became nationals but not
citizens of the United States at birth. This provision of the
Nationality Act of 1940 does not affect the respondent because he was
born prior to January 13, 1941 and according to the record his mother
was not a national of the United States.
The respondent has been charged with deportability under section
241(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(4))
in that he has been convicted of two crimes involving moral turpitude
after entry, to wit, petit theft and "making, drawing and passing
certain worthless checks.' These charges were not fully developed by the
special inquiry officer because he concluded that alienage had not been
established. Furthermore, it appears that the trial attorney for the
Immigration Service shared the special inquiry officer's belief with
regard to the respondent's citizenship (p. 12).
The Service representative suggests that the case be remanded to the
special inquiry officer for further evaluation of the deportation charge
in light of the Board's ruling with regard to the respondent's alienage
and to afford the respondent an opportunity for the submission of
additional evidence on the issue of his citizenship and his
deportability. We will so order.
ORDER: It is directed that the case be remanded to the special
inquiry officer for the purposes stated in the foregoing opinion.
(1) Section 4(a) of the Organic Act of Guam (64 Stat. 384) has been
set forth in Appendix A.
(2) 8 U.S.C. 604(b), 1940 Edition, now 8 U.S.C. 1408.
Sec. 4. (a) Chapter II of the Nationality Act of 1940, as amended, is
hereby further amended by adding at the end thereof the following new
section:
Sec. 206. (a) The following persons, and their children born after
April 11, 1899, are hereby declared to be citizens of the United States,
if they are residing on the date of enactment of this section on the
island of Guam or other territory over which the United States exercises
rights of sovereignty:
(1) All inhabitants of the island of Guam on April 11, 1899,
including those temporarily absent from the island on that date,
who were Spanish subjects, who after that date continued to reside
in Guam or other territory over which the United States exercises
sovereignty, and who have taken no affirmative steps to preserve
or acquire foreign nationality.
(2) All persons born in the island of Guam who resided in Guam
on April 11, 1899, including those temporarily absent from the
island on that date, who after that date continued to reside in
Guam or other territory over which the United States exercises
sovereignty, and who have taken no affirmative steps to preserve
or acquire foreign nationality.
(b) All persons born in the island of Guam on or after April 11, 1899
(whether before or after the date of enactment of this section), subject
to the jurisdiction of the United States, are hereby declared to be
citizens of the United States: Provided, That in the case of any person
born before the date of enactment of this section, he has taken no
affirmative steps to preserve or acquire foreign nationality.
(c) Any person hereinbefore described who is a citizen or national of
a country other than the United States and desires to retain his present
political status shall make, within two years of the date of enactment
of this section, a declaration under oath of such desire, said
declaration to be in form and executed in the manner prescribed by
regulations. From and after making of such a declaration any such
person shall be held not to be a national of the United States by virtue
of this Act.
Respondent, a native and national of the Dominican Republic, has not established that he would be subject to physical persecution within the meaning of section 243(h) of the Immigration and Nationality Act by claiming possible physical injury, incurred as an innocent bystander, incident to uncontrolled mob violence in the Dominican Republic.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Visitor remained longer.
The record establishes respondent is deportable as charged in the
order to show cause. He remained in this country after the authorized
time of his visit expired on December 10, 1961. The special inquiry
officer granted him the privilege of voluntary departure to be replaced
by deportation to the Dominican Republic, the country of his birth and
nationality, if he fails to comply with the conditions governing his
voluntary departure. Respondent did not designate a country to which he
would want to be sent if deported. He maintains he will be physically
persecuted if returned to the Dominican Republic and appeals from the
portion of the special inquiry officer's decision denying him the
benefits of section 243(h) of the Immigration and Nationality Act.
Respondent's contentions differ substantially from those generally
raised in proceedings under section 243(h). He does not allege the
Dominican authorities would physically persecute him because of any
opposition on his part to the present government or any past activities.
Counsel for respondent asserts the special inquiry officer erred in
limiting physical persecution under the statute to acts inflicted, or
sanctioned, by governmental authorities. He argues that the statutory
meaning of the term "physical persecution' includes bodily harm at the
hands of the populace (or certain elements thereof) where the
government, although not sanctioning such act, is unable to control the
situation.
Respondent's evidence consists almost entirely of testimony of two
witnesses and factual material from newspapers and magazines published
either in this country or the Dominican Republic. Primarily, it reports
instances of mob violence occurring in Santo Domingo over the past
several months and points to the elements contributing to the unrest.
None of this evidence relates directly and specifically to respondent.
As we perceive counsel's argument it comprises at least three
distinct situations. A mob or organized group in the Dominican Republic
may attack a person known to have been connected officially or
unofficially with the Trujillo regime and suspected, with good reason,
of participation in the dictatorship's excesses, or known by the mob or
group as otherwise opposed to its interests. The second situation also
results in intentional physical harm, but there the mob or group
erroneously identifies the person as inimical. Respondent's witness,
Armando Luna, underwent such an experience. In either of the foregoing
situations the attacker (as happened to the witness, Luna) may enlist
the unwitting aid of the authorities through false accusations. In the
third situation a completely innocent bystander may be inadvertently
injured during a riot or other lawless and violent activity caused by
political unrest.
As the Service's representative at oral argument points out,
counsel's historical examples of nongovernmental persecution relate to
particular groups -- the early Christians, the Jews in Russia, and the
nobility during the French revolution. The dictionary definition
referred to in respondent's brief also suggests the group or class
concept. /1/ Respondent, however, disclaims membership in any class or
group which would render him particularly liable to harassment. Thus we
do not have before us the situation in which a mob or group might attack
a person because of his past or present political activities.
Accordingly, we do not rule whether the statute contemplates that
situation. /2/
Counsel for respondent does not clearly distinguish the variations of
what we have assigned as his second situation. Under that situation the
attackers may simply mistakenly identify the victim. On the other hand,
the attackers may properly identify the victim, but act on the basis of
motives unrelated to those avowed. There may be only a single attack or
two or more. These possibilities suggest many ramifications in the
broader aspects of the question whether physical injury arising under
this second situation might come within the statutory concept of
physical persecution.
Physical persecution for purposes of the statute has been held
generally to be based upon religious, political, or racial grounds. /3/
There is some indication that the term should not be so restricted. /4/
We limit our inquiry at this point, however, to circumstances in the
second situation, reasonably derived from the record, which if counsel's
thesis is correct might satisfy the requirements of the statute. Within
this scope any intentionally inflicted physical harm respondent might
suffer could result only from a completely mistaken identification of
him as a supporter of Trujillo or as otherwise opposed to the political
interests of the mob or fraction. Nothing in respondent's testimony
provides a basis for believing that he might be denounced on political
grounds but for purely personal, or other irrelevant, reasons. Apart
from whether the injuries suffered by the witness Luna constitute
physical persecution within the meaning of the statute, respondent has
not connected his circumstances to those of Luna.
At oral argument counsel for respondent, in an attempt to counter the
Service representative's suggestion that physical persecution
contemplates action aimed against a member, or members, of a particular
group, suggested that mobs in the Dominican Republic might identify
respondent and his compatriots in the other similar cases before us as
former supporters of Trujillo. He noted they are from the middle class,
have traveled to the United States, and would be distinguishable in
appearance from the mobs. We do not believe, however, that the mobs
would seek out an individual on the streets of Santo Domingo simply
because of his middle-or upper-class appearance.
Moreover, there are obvious interpretive difficulties in holding that
physical persecution for the purposes of section 243(h) includes
physical injury due to mistake. Logically, such an occurrence appears
further removed from the ordinary concept of persecution than what
befell witness Luna. Practically, in only highly unusual circumstances
could the opinion required by the statute be reached. Additionally the
fewer and less related any possibilities of injury might be the more
difficult a holding of likelihood of physical persecution would become.
Therefore, even if respondent were to suffer physical injury because
a mob or group in the Dominican Republic mistakenly identified him as a
proper object of its wrath, in all probability the circumstances could
not reasonably be considered physical persecution for purposes of the
statute. In addition, respondent has not shown that any such fate
awaits him in his native land. Under any of the circumstances of the
second situation which might be relevant to respondent's case, he is not
entitled to the benefits of section 243(h). We do not rule on the legal
effect for the purposes of section 243(h) of circumstances in general
under that situation.
We determine therefore that respondent's case rests squarely upon the
third situation. /5/ Respondent says that it would be risky for him, or
any other Dominican here, to return to the Dominican Republic under
present conditions. The provisional government, he contends -- although
desiring to maintain law and order -- is unable to control effectively
outbreaks of mob violence arising from the general political unrest
which has followed Trujillo's assassination. He argues that any
innocent bystander may be injured or killed.
Narrowly, therefore, the issue before us is whether physical harm
befalling an innocent bystander during a lawless and riotous
demonstration by a mob might constitute physical persecution within the
meaning of section 243(h).
We hold section 243(h) does not cover injuries which may befall
anyone who happens to be in the vicinity of an outbreak of mob violence,
even though the mob is aroused by factors commonly associated with
persecution -- racial, religious, or political differences. The statute
is designed to benefit a particular class of persons, not any national
of a country which is undergoing a period of upheaval accompanied by
violence. Respondent is attempting to equate physical injury arising
out of political discord with physical persecution. They are not
necessarily the same.
To hold that accidental bodily harm resulting from an anarchical or
otherwise dangerous internal political situation does not come within
the purview of section 243(h) is not to deny a remedy to individuals who
face such situations. Deportation to troubled areas may be stayed by
the Service as a matter of policy during an emergency irrespective of
the probability of physical persecution, just as official temporary
travel bans to certain geographic areas are often imposed. /6/ Nothing
which we say here should be construed as a recommendation either for or
against granting such an administrative stay of deportation to
respondent. We have no jurisdiction over a stay of this type. /7/
Moreover this appeal brings before us matters not suited to
adjudicative processes. Respondent relies upon current events, but the
events of record are no longer current. The decision must necessarily
disregard facts which occurred contemporaneously with, or immediately
prior to, the hearing and consider facts which have arisen subsequently.
Counsel's own argument illustrates the difficulty. His brief argues
that deportation should be stayed at least until the elections promised
for December 20, 1962. At oral argument he suggested that action
leading toward deportation should be deferred until at least the
officials elected in the December elections take office on February 27th
of this year. In arguing similar cases on March 4, 1963 counsel said in
effect that it is too early to determine conditions under the new
government.
The changing political scene in the Dominican Republic necessitates
these shifts in argument; the shifting basis for decision demonstrates
that the grounds for a stay of deportation urged by respondent fall
properly within the more flexible sphere of purely administrative action
rather than the procedures imposed by the regulations under the
statutory provision. The statute and regulations contemplate that the
conditions relied upon be sufficiently static to enable, by a process of
adjudication subject to review, formation of a considered opinion of the
likelihood of physical persecution.
Yet the factual record here also supplies ample grounds for denying
respondent's application for a stay of deportation because of
anticipated physical persecution. Looking at conditions in the
Dominican Republic either at the time of the hearing or at the present
time, we find little likelihood that, if respondent returned there, his
allegations would be borne out. The situation in the Dominican
Republican is still developing. Nevertheless, in addition to being
insufficiently connected to respondent, assertions in the record that
the present democratic trend may terminate are speculative.
More importantly, however, respondent's application fails as a matter
of law. Counsel for respondent has been afforded unlimited opportunity
to develop his thesis. The attorneys who represented the Service at the
hearing in this and related cases have objected to certain testimony and
to submission of some of the documentary evidence as not germane to the
issue of physical persecution. The special inquiry officers -- although
often noting the merit of the objection -- have accepted such evidence
into the record in order not to hamper the respondents' presentation of
their position. We have reviewed counsel's contentions sympathetically
in order to give these respondents the consideration of everything in
their favor -- over and above what we might perceive as deficiencies in
their actual proof. At the minimum, however, the benefits of section
243(h) may be extended only to one who faces being singled out for
physical suffering imposed on the basis of some belief or activity which
the oppressor seeks to overcome or punish. /8/ The assertions by and in
behalf of respondent and his compatriots relating to the third
situation, which alone find any measure of support in the record, do not
bring them within this standard. We need not decide here what other
requirements may be implicit in the statutory language -- particularly
whether governmental authorities must inflict or sanction the physical
persecution.
We reach the same conclusion as the special inquiry officer, if not
completely upon the same grounds. Respondent's evidence and argument,
as related to that evidence, do not, in our minds, conform to any
reasonable statutory meaning for the term "physical persecution.' /9/ We
shall dismiss the appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
(1) ". . . Third Edition of Webster's New International Dictionary
issued in 1961, which is quoted as follows: "1a The Act or practice of
persecuting as (i) the infliction of sufferings, harm or death on those
who differ (as in origin, religion or social outlook) in a way regarded
as offensive or meriting extirpation; * * * b: a campaign having for
its object the subjugation or extirpation of the adherents of a religion
or way of life (pogroms in Russia)'.' Respondent's brief, p. 2.
(2) The point which counsel raises has been at least twice before
Federal courts of appeals. In each case a group of Communits -- acting
without the government's authority or approval -- allegedly would harass
the individual in question because of his political convictions. In
Lavdas v. Holland, 235 F.2d 955 (C.A. 3, 1956), the court ruled there
was insufficient basis for the petitioner's belief that if he returned
to his small community in Greece, Communists there, who in no way
represented the governmental authorities, would physically harm him.
The court for this reason did not decide nor comment upon whether fear
of persecution by secretly and illegally operating communist terrorists
in the petitioner's homeland might satisfy the requirements of the
statute -- section 4 of the Displaced Persons Act, 50 U.S.C. App.
section 1953.
In U.S. ex rel. Cantisani v. Holton, 248 F.2d 737 (C.A. 7, 1957)
cert. den. 356 U.S. 932 (1958) (referred to by the special inquiry
officer) the petitioner declared he would be subject to persecution and
abuse from communistic elements in his village in Italy. The court in
upholding the administrative denial of relief under section 243(h) of
the Immigration and Nationality Act (8 U.S.C. 1253(h)) gave no
indication whether abuse by nonofficial elements in the population could
constitute physical persecution for purposes of that statutory
provision. On that subject the court pointed out only that there was no
proof the authorities in the village, admittedly noncommunist, could not
protect the petitioner.
A district court, however, has considered that section 6 of the
Refugee Relief Act of 1953 as amended (50 U.S.C. App. section 1971d) did
not require "persecution or fear of persecution' to be by the de jure or
de facto government of the foreign country. The court ruled that the
petitioners should have been allowed to submit evidence that they feared
persecution from certain communist elements in Italy. D'Antonio v.
Shaughnessy, 139 F.Supp. 719 (S.D. N.Y. 1956).
(3) Blazina v. Bouchard, 286 F.2d 507 (C.A. 3, 1961), cert. den. 366
U.S. 950 (1961); Matter of Kale, A-9555532, 4/23/58, discussed in
Dombrovskis v. Esperdy, 195 F.Supp. 488 (S.D. N.Y. 1961); Gordon and
Rosenfield, Immigration Law and Procedure, 597 (1962 Supp.).
(4) Wasserman, Book Review, 28 Fordham L.Rev. 860 (1959-1960).
(5) Subsequent to oral argument in respondent's case, his counsel
argued a group of similar cases in which counsel's contentions relate
solely to what we characterize as the third situation.
(6) Since it is possible nationals of a country might incur risks
during a period of violent political discord which casual visitors would
not, the absence of a general ban on travel to the Dominican Republic
does not weaken counsel's argument in its entirety. But the freedom of
travel to the Dominican Republic does affect adversely counsel's
contention that respondent faces serious danger of personal injury as an
innocent bystander.
(7) Counsel for respondent indicates that the Service had earlier
refrained from deporting Dominican nationals to their homeland. A
change in that policy brought on these proceedings.
(8) Of course, many situations which would meet these broad criteria
would not, on other grounds, constitute "physical persecution.'
(9) In addition to the record in respondent's case, we have
considered the testimony and any additional exhibits in counsel's
similar cases currently before us, other material submitted by counsel
to the Board, and all of counsel's arguments.
Liability to fine was not incurred under section 273 of the Immigration and Nationality Act for bringing to the United States a nonimmigrant alien without a proper visa when such alien was paroled into the United States and was subsequently granted a waiver of the nonimmigrant visa requirement pursuant to the authority of a published regulation expressly providing that a visa is not required when such a waiver is granted. Matter of Plane "F-BHSQ', Int. Dec. No. 1200, 9-595, distinguished.
IN RE: Capitol Airways Plane N-5404, "Flight SR-4,' which arrived at the port of New York from foreign on September 13, 1962. Alien passenger involved: Geraldine MacManus.
BASIS FOR FINE: Act of 1952 -- Section 273(a) 8 U.S.C. 1323 .
This appeal is directed to an administrative penalty of $1,000 which
the District Director at New York has ordered imposed on Capitol
Airways, Inc., as owners, agents, charterers or consignees of the
aircraft, for bringing to the United States from a place outside thereof
(other than foreign contiguous territory) the above-named alien
passenger who was not in possession of an immigration visa or other
document valid in lieu thereof. The appeal will be sustained.
There is no dispute as to the basic facts of this case. The person
named above, a female, is an alien and was brought to the United States
as a passenger in the manner described above. She was presented to the
examining immigration officer for inspection as an alien coming to the
United States for a temporary visit. She presented a valid British
passport, but she lacked any other documents valid for admission into
the United States. The examining immigration officer determined that
she could not be admitted to the United States because she lacked such
documents. However, she was placed in parole status to appear at the
Chicago office of the Service on or before September 21, 1962. When she
appeared there on September 20, 1962, she applied for and was granted a
visa waiver, in accordance with the provisions of section 212(d)(4)(A)
of the Immigration and Nationality Act (8 U.S.C. 1182). Apparently, she
departed from the United States in accordance with the terms of her
admission.
This Board has previously ruled that a transportation company is
relieved of fine liability under this statute for bringing an alien to
the United States without a proper visa where such person is admitted
under the authority of a published regulation which, in express terms,
provides that a visa was not required when the waiver is granted. /1/
The facts of this case, and the provisions of 8 CFR 212.1(f), bring it
within the scope of that decision. In the light thereof, we hold that
liability to fine has not been incurred here.
The District Director's decision to impose the fine here is based on
a subsequent precedent decision of this Board, /2/ which we find
inapplicable. The reason is that in said case the alien was paroled
into the United States and not granted a waiver. The distinction
between a waiver and parole for present purposes is clearly pointed out
in the decision cited by the District Director, supra.
ORDER: It is ordered that the appeal be sustained and that the fine
be not imposed.
(1) Matter of Plane "CUT-604,' 7 I. & N. Dec. 701.
(2) Matter of Plane "F-BHSQ,' NYC-10/52.232, BIA, 3/1/62; Int. Dec.
No. 1200.
An alien lawfully admitted to the United States for permanent residence, who subsequently became deportable because of convictions of crimes involving moral turpitude, is statutorily ineligible for adjustment of status under section 245 of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) -- Two
crimes after entry -- robbery and robbery with violence.
The case comes forward on appeal from the order of the special
inquiry officer dated November 28, 1962, ordering respondent deported
from the United States to Brazil on the charge contained in the order to
show cause or, in the alternative, that he be deported to Portugal.
The record relates to a native and citizen of Portugal, 31 years old,
male, who last entered the United States in May 1955 after a two-day
visit to Canada. He had previously been lawfully admitted for permanent
residence on July 30, 1948.
The respondent was convicted upon his plea of guilty in the Superior
Court, Fairfield County, Connecticut on February 23, 1960 of robbery
committed on April 12, 1959 in violation of section 53-67 of the General
Statutes of Connecticut and was sentenced to a term of one year in the
County Jail, the sentence to be suspended at the expiration of three
months and the respondent to be placed on probation for a term of two
years from the date of said suspension. He was next convicted in the
Superior Court, Fairfield County, Connecticut on October 19, 1960 upon
his plea of guilty of the offense of robbery with violence committed on
July 26, 1960 in violation of section 53-14, General Statutes of
Connecticut and was sentenced to be confined for a term of not more than
six years nor less than three years in the Connecticut State Prison at
Wethersfield, Connecticut. These crimes involved moral turpitude and
did not arise out of a single scheme of criminal misconduct.
Deportability on the ground charged in the order to show cause is
established.
The respondent has filed an application for adjustment of status to
that of a permanent resident pursuant to the provisions of section 245
of the Immigration and Nationality Act as amended by section 10 of the
Act of July 14, 1960 (Public Law 86-648; 8 U.S.C.A. 1255(a) (C.A.P.P.
1961), 74 Stat. 505). In conjunction therewith he has, as provided by 8
CFR 245.1, requested the exercise of the discretion contained in section
212(g) of the Act as amended September 26, 1961 (8 U.S.C.A. 1182(h),
C.A.P.P. 1961) to waive the criminal ground of inadmissibility arising
under section 212(a)(9) because of his convictions as previously set
forth. Section 245(a) of the Act as amended provides that the status of
an alien, other than an alien crewman, who was inspected and admitted or
paroled into the United States may be adjusted by the Attorney General,
in his discretion under such regulations as he may prescribe, to that of
an alien lawfully admitted for permanent residence if (1) the alien
makes an application for such adjustment, (2) the alien is eligible to
receive an immigrant visa and is admissible to the United States for
permanent residence, and (3) an immigrant visa is immediately available
to him at the time his application is approved. We shall first address
ourselves to the question of whether section 245 as amended is
applicable to the case of an alien lawfully admitted for permanent
residence who subsequently becomes deportable because of criminal
convictions in the United States.
As originally enacted, section 245 of the Immigration and Nationality
Act of June 27, 1952, 8 USC 1255, provided for the adjustment of status
of aliens lawfully admitted to the United States as bona fide
nonimmigrants who were continuing to maintain that status and contained
certain other limitations upon the classes of those eligible for such
adjustment of status. The amendment of section 245 by the Act of August
28, 1958 (Public Law 85-700, 72 Stat. 699) dropped the requirement of
maintenance of nonimmigrant status, was available only to aliens who
were admitted as bona fide nonimmigrants and contained certain other
limitations such as exclusion of natives of contiguous countries and
adjacent islands from the benefits thereof.
The latest amendment to section 245 by Section 10 of the Act of July
14, 1960 (Public Law 86-648, H.J. Res. 397, 74 Stat. 504) simply
provides that "the status of an alien, other than an alien crewman, who
was inspected and admitted or paroled into the United States may be
adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence * * *.' The elimination of the specific
restriction to nonimmigrants contained in prior enactments of section
245 is not explained insofar as can be ascertained by reference to the
legislative history. The only reference to the amendment, which was
originally a part of House bill H.R. 9385 and was combined with House
Joint Resolution 397, is a statement that section 10 of the Joint
Resolution as amended would amend the existing section 245(a) of the
Immigration and Nationality Act which authorizes the Attorney General
under certain circumstances to adjust the status of an alien who was
admitted to the United States as a "bona fide' nonimmigrant to that of
an alien lawfully admitted for permanent residence; and that under the
proposed amendment to section 245(a) the procedure for the adjustment of
the immigrant status of aliens to that of aliens lawfully admitted for
permanent residence would be broadened so as to include all aliens
(other than alien crewmen) who have been inspected and admitted or who
have been paroled into the United States, thereby providing considerably
more flexibility in the administration of the law. /1/ It was
additionally commented that the necessity of the amendment arose from a
decision rendered by the Attorney General (41 Op. A.G. No. 77) on
November 20, 1959 which Congress feared would necessitate the
reinstatement of the fallacious procedure known as "preexamination' and
would greatly increase the number of private bills. It was explained
that the wording of the amendment is such as not to grant eligibility
for adjustment of status to alien crewmen and to aliens who entered the
United States surreptitiously; that the amendment does not change in
any way the qualitative and quantitative requirements of the basic
immigration laws and does not give any alien any benefit which was not
available to him under the Immigration and Nationality Act. /2/
The legislative history fails to reveal any discussion as to the
nature of the "considerably more flexibility in the administration of
the law' referred to above in connection with the enactment of the
proposed amendment. It is believed, however, that the reference to bona
fide nonimmigrants in the prior Act contrasted with "all aliens (other
than alien crewmen) inspected and admitted or paroled' in the new
amendment supplies the clue to the conclusion that the amendment applies
to nonimmigrants, as will be more fully set forth below. It is noted
that the far more rigorous requirements for adjustment of status of
those who subsequently became deportable upon qualitative grounds
prescribed by section 244(a)(5) were retained and, in fact, were
subsequently reenacted in streamlined or simplified version by the Act
of October 24, 1962 (Public Law 87-885, 76 Stat. 1247). It is likewise
noted that section 245 of the Immigration and Nationality Act as
amended, 8 U.S.C. 1255 (C.A.P.P. 1961), still retains its position under
the heading "Adjustment of status of nonimmigrant to that of person
admitted for permanent residence'. It is believed that the change in
language may have been motivated by a series of Service decisions in
which the bona fides of the nonimmigrant status of the aliens were
questioned and resulted in holdings that aliens, who were not actually
bona fide nonimmigrants and were in fact immigrants, were not eligible
for adjustment of status. /3/ The elimination of the necessity of
examining into the bona fides of the nonimmigrant status of persons who
were inspected and admitted as nonimmigrants would provide the greater
flexibility in the administration of the law referred to in the
legislative history.
The legislative history also restated with approval comments made in
connection with the enactment of the amendatory Act of August 21, 1958
(H.R. 2133, 85th Cong.) in which it was stated that in conformity with
the existing statutes, the language of the bill has been drawn so as to
permit its application to the cases arising thereunder pursuant to all
the discretionary powers of the Attorney General to waive or grant
exemptions from the grounds of exclusion relating to aliens seeking
immigrant visas including, but not limited to the Attorney General's
power under the Act of September 11, 1957. /4/ Provision was made in
the pertinent regulations, 8 CFR 245.1, as amended, to permit
application in conjunction with section 245 for the exercise of
discretion under sections 212(f), (g) and (h) of the Act, as amended
September 26, 1961 insofar as they relate to the excludability of an
alien in the United States. These sections set forth grounds of
excludability contained in section 212(a) of the Immigration and
Nationality Act and refer to preexisting grounds of inadmissibility in
the case of an applicant for a visa or for admission.
The Attorney General has stated after reviewing the history of
section 245 prior to the amendment of July 14, 1960, it seems clear that
section 245 was intended to perform no other function than to permit
nonimmigrants to obtain permanent resident status without leaving the
United States. /5/ There is no indication that the amendatory language
embodied in section 10 of the Act of July 14, 1960 was intended to serve
as a substitute for the provisions of section 244(a)(5) or section
244(a)(2) as amended by the Act of October 24, 1962. A change so
radical as to make section 245 apply to aliens lawfully admitted as
immigrants as well as nonimmigrants would surely have been the subject
of legislative comment.
An analogy may be drawn to the adjustment of status permitted under
section 249 of the Immigration and Nationality Act which permits
adjustment of status to those aliens who entered the United States prior
to June 28, 1940 and met certain other requirements. Two aliens, of
whom records of lawful admission existed, who subsequently became
deportable after entry under section 241(a)(4), sought to have their
status adjusted under the provisions of section 249 of the 1952 Act, as
amended, in conjunction with an application for a waiver of
excludability under section 212(g) of the Immigration and Nationality
Act. It was held that the aliens' records of lawful admission for
permanent residence had not been vitiated by the fact that the
respondents had been subsequently found deportable on criminal grounds
which arose subsequent to their entry into the United States. /6/
For the reasons already set forth at legnth, it is concluded that
this respondent, who was lawfully admitted to the United States for
permanent residence in possession of an immigrant visa, who has become
deportable because of convictions for crimes involving moral turpitude
committed in the United States subsequent to his lawful entry for
permanent residence, has nevertheless not lost his status as a permanent
resident and is not statutorily eligible for adjustment of status to
that of a permanent resident under the provisions of section 245 of the
Immigration and Nationality Act. Upon this basis alone, the appeal
should be dismissed.
However, even if the respondent were to be considered statutorily
eligible for adjustment of status pursuant to section 245 of the
Immigration and Nationality Act, as a matter of discretion his
application should be denied. On April 12, 1959 and October 19, 1960 he
committed the crimes of robbery and robbery with violence and at the
time his last hearing on September 25, 1962 was serving a sentence of
three to six years on the second conviction. Respondent married a
citizen of the United States on April 30, 1955 but separated shortly
thereafter. They were reconciled and a child was born to them on
October 3, 1957 but the respondent again separated from his family when
the child was approximately nine months old and thereafter failed to
support them. His wife charged him with nonsupport and on July 19, 1958
he was sentenced to imprisonment for a period of three months on that
charge, sentence was suspended and he was ordered to pay $35 a week for
the support of his wife and child but sent only a few checks. He has
not contributed to her support or to the support of their child at any
time during 1959 or thereafter. The wife received workmen's
compensation for injuries suffered to her hand but is now being
supported by State welfare authorities and resides with her sister.
Good moral character is a factor to be considered in determining
whether the Attorney General's discretion should be exercised in a given
case. In order to warrant the favorable exercise of discretion, good
moral character must exist for a reasonable period of time. /7/ In view
of the recency of the respondent's crimes and his present incarceration,
as well as his separation from his wife and child and failure to support
them in the past, leaving them dependent upon welfare authorities for
their support, it is believed that the case is not one meriting the
exercise of discretion.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) 2 U.S. Code Congressional & Adm. News (1960, 86th Cong., 2d
Sess.) 3147; Senate Report No. 1651 (86th Cong., 2d Sess.).
(2) 2 U.S. Code Congressional & Adm. News, 3137-3138.
(3) Matter of B , 8 I. & N. Dec. 621; Matter of G , 8 I. & N. Dec.
636; Matter of A , 8 I. & N. Dec. 655; Matter of F , 8 I. & N. Dec.
680.
(4) 2 U.S. Code Cong. & Adm. News (86th Cong., 2d Sess., 1960) 3137.
(5) Matter of S , Int. Dec. No. 1190 (A.G., January 22, 1962).
(6) Matter of M P , Int. Dec. No. 1228, aff'd Moldanada v. Rosenberg
(Civ. No. 62-1123-K), S.D. Cal. (December 26, 1962); Matter of
Preciado-Castillo, Int. Dec. No. 1230.
(7) Matter of Francois, A-12193870, Int. Dec. No. 1263 Jan. 17, 1963;
Matter of P , 8 I. & N. Dec. 167; Matter of W , Int. Dec. No. 1088;
Scozzari v. Rosenberg, 302 F.2d 593 (9th Cir., 1962), cert. den. 369
U.S. 886; Braun-Vega v. Esperdy, 62 Civ. 2487 (S.D.N.Y., November 9,
1962)
(1) An alien's application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, filed simultaneously with a petition for third-preference status at a time when the quota was open, but on which final action by the district director was completed after the quota had closed, may not be approved nunc pro tunc by the special inquiry officer in de novo consideration of application in deportation proceedings since as of the date of consideration an immigrant visa was not immediately available to the alien as required by subsection (a)(3) of section 245.
(2) The setting of the terms and conditions for voluntary departure is not within the jurisdiction of the Board of Immigration Appeals (8 CFR 244.2). (See also, Matter of Irie, Int. Dec. No. 1304.)
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251 --
Nonimmigrant (temporary visitor for pleasure) -- remained longer.
In a decision dated December 10, 1962, the special inquiry officer
denied the respondent's request for adjustment of his status, ante;
granted his application for voluntary departure; and provided for his
deportation on the above-stated charge in the event of his failure to so
depart. The appeal from that decision, which brings the case before
this Board for consideration, will be dismissed.
The record relates to a 21-year-old single male alien, a native and
citizen of Italy. He last entered the United States on or about October
5, 1961. He was then admitted as a temporary visitor for pleasure for a
period which, with extensions, was to run until July 5, 1962. He has
remained in the United States since the expiration of the temporary
period of his admission without authority. Accordingly, his
deportability on the above-stated charge is established.
On April 19, 1962, the respondent submitted an application for
adjustment of his status under section 245 of the Immigration and
Nationality Act, with accompanying documents. At the same time, a
petition to have him accorded third preference status under the Italian
quota, filed in his behalf by his legally resident alien father, was
also submitted. Both the application and the petition were received by
the Service on the following day, April 20, 1962.
On June 20, 1962, the respondent was accorded a hearing and
examination in connection with his application for adjustment of status.
On the following day, June 21, 1962, he was notified that his father's
petition in his behalf had been approved. On August 20, 1962, the
District Director denied his application for adjustment of status under
section 245 of the Immigration and Nationality Act, on the ground that
the third preference portion of the Italian quota was then
oversubscribed.
On November 26, 1962, deportation proceedings were instituted against
the respondent by the issuance and service upon him of an order to show
cause charging him with deportability on the above-stated ground. In
the course of the hearing conducted thereunder, held on December 10,
1962, the respondent renewed his request for adjustment of status under
section 245 of the Immigration and Nationality Act. It was denied by
the special inquiry officer, for the same reason it was previously
denied by the District Director.
The basis of the special inquiry officer's denial, as well as that of
the District Director previously, was a Department of State Visa Office
Bulletin in effect at the time of the decisions showing the third
preference portion of the Italian quota to be oversubscribed for a
period of approximately 10 years. The respondent concedes that this was
the case.
However, he points to Department of State Visa Office Bulletin #93,
dated April 2, 1962, showing that as of the date of its issuance the
third preference portion of the Italian quota was current. He stresses
that this situation continued until Visa Office Bulletin #93 (supra) was
cancelled by the issuance of Department of State Visa Office Bulletin
#96, dated June 4, 1962. The latter shows that as of July 1, 1962, the
third preference portion of the Italian quota was unavailable to
applicants or petitioners who had filed for such status subsequent to
December 1, 1953. /1/
He argues that, on the basis of the foregoing, his application could
have been granted at any time prior to July 1, 1962, because a visa was
then available to him. He contends that his petition and application
should have been processed within that period of time, and that failure
in the administrative process in this respect was unduly prejudical to
him. He requests that we approve his application, nunc pro tunc. This,
however, we cannot do.
Section 245(a)(3) of the Immigration and Nationality Act provides
that an alien's application for adjustment of status to that of one
lawfully admitted for permanent residence cannot be granted unless "an
immigrant visa is immediately available to him at the time his
application is approved.' The foregoing, however, establishes that we
are confronted with precisely such a situation here. Under the law,
therefore, the special inquiry officer had no alternative but to deny
the application. The law is equally binding on this Board. It makes no
provision for retroactive approval of the application.
Respondent's assertion that his visa petition and application for
adjustment of status should have been processed between April 20, and
July 1, 1962, overlooks the normal administrative steps required in the
processing of said petition and application. The dates set forth above
do not indicate any abnormal delay in this respect, and the respondent
points to none.
His argument also overlooks the fact that since the provisions of
sections 201(c) and 203(a) of the Immigration and Nationality Act (8 U.
S.C. 1151 and 1153) apply under all quotas, the indication that a quota
or a preference thereunder is current may not be construed to signify
that such numbers are available for use at all times during the period
for which requested or specified as being covered by the Department of
State Visa Office Bulletin in question. Moreover, it overlooks the fact
that while the respondent's petition and application were still subject
to administrative adjudication, he had no established right to the
future status he was seeking to obtain; and that the statute makes the
granting of such application a matter wholly within the discretion of
the Attorney General, acting through his duly designated
representatives. /2/ It further overlooks the fact that the law makes
the Department of State responsible for the determination that the third
preference portion of the Italian quota is or is not oversubscribed.
Such a determination is binding on all the parties here involved, and
this administrative tribunal is not the proper forum for review thereof.
8 CFR 245.2 does not, as claimed by respondent, authorize the special
inquiry officer to review a District Director's denial of adjustment
under the statute. Rather, it specifically precludes appeal from the
District Director's denial and provides for de novo consideration by the
special inquiry officer. 8 CFR 242.17 makes this abundantly clear.
The only other aspect of the case requiring comment is respondent's
alternative request for voluntary departure. The special inquiry
officer has, on the record before us, properly found respondent eligible
for such relief and granted it. There is no merit in respondent's
request that we return his case to the special inquiry officer or the
District Director with instructions to grant voluntary departure with an
indefinite time for departing, on the basis of the equitable and
humanitarian factors in the case previously pointed up. Under the
regulations (8 CFR 244.2), the setting of the terms and conditions for
voluntary departure is not properly a function of this Board.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Department of State Visa Office Bulletin #104 of January 2, 1963,
now sets this date as March 1, 1955.
(2) Fassilis v. Esperdy, 301 F.2d 429.
An alien who entered the United States as a crewman is statutorily ineligible for suspension of deportation under the provisions of section 244(f) of the Immigration and Nationality Act, as amended by section 4, Act of October 24, 1962, notwithstanding he had pending on the effective date of the amendment an application for suspension of deportation.
CHARGE:
Warrant: Act of 1924 -- Remained longer -- crewman.
The case comes forward on appeal from the decision of the special
inquiry officer entered November 29, 1962, finding the respondent
subject to deportation on the charge stated above; holding that he is
not eligible for the discretionary relief of suspension of deportation
because he entered as a seaman or crewman; granting him the privilege
of voluntary departure and providing for an automatic order of
deportation should he fail to depart; and further directing that if
Australia, the country the respondent designated as the place of
deportation, is unwilling to accept the respondent, he should then be
deported to Italy.
The record relates to a 49-year-old married male alien, who was born
in Sansego, Italy, which later became Yugoslavia, and who is presently
stateless. His last and only entry into the United States occurred at
Newport News, Virginia, on February 27, 1951, "SS Brazil' when he was
admitted under section 3(5) of the Act of 1924 as a seaman. He has
since remained in the United States. The charge of deportability is
established.
The warrant of arrest was originally served on respondent on October
10, 1952, and he was accorded a hearing on November 19, 1952. The
special inquiry officer found him deportable as charged in the warrant
of arrest, denied the application for suspension of deportation inasmuch
as the respondent at that time had resided in the United States only two
years, had no family ties in this country and was not eligible for that
form of discretionary relief. The special inquiry officer denied
applications for voluntary departure and preexamination or voluntary
departure alone. On June 17, 1953, this Board dismissed the appeal from
the decision of the hearing officer. On January 31, 1958, this Board
dismissed a motion to reopen for the reason that the motion was
unsupported by evidentiary data or points of law or precedents to
support the motion to reopen for suspension of deportation under 8
U.S.C. 1254(a)(1) of the Immigration and Nationality Act of 1952 or, in
the alternative for the purpose of preexamination. On May 8, 1958, the
Acting Regional Commissioner, Northeast Region, Burlington, Vermont
denied respondent's application for stay of deportation pursuant to
section 243(h) of the Immigration and Nationality Act for failure to
establish that the applicant would be subjected to physical persecution
if returned to the country to which his deportation was designated, to
wit, Italy. On March 24, 1961, a motion requesting that the outstanding
order of deportation be set aside and the proceedings be reopened to
permit application for suspension of deportation under section 244(a)(5)
of the Immigration and Nationality Act was denied for the reason that
the motion was not properly supported. On March 1, 1962, this Board
granted the motion to reopen to permit the respondent to apply for
suspension of deportation.
On the issue of discretionary relief it has been established that the
respondent has resided in the United States continuously since his entry
on February 27, 1951, as a seaman. When he first made application for
suspension of deportation under section 19(c)(2) of the Immigration Act
of 1917 (8 U.S.C. 155) being on November 19, 1952, respondent was
clearly ineligible because he had no close family ties in the United
States who were dependent upon him for support and he had not been in
this country for a period of seven years; nor did he possess those
qualifications on December 24, 1952, the date the Immigration Act of
1917 was repealed.
The respondent's present application for suspension of deportation
under section 244 of the Immigration and Nationality Act was made during
the course of the reopened hearing on March 16, 1962. The hearings were
concluded on May 23, 1962. The decision of the special inquiry officer
was handed down on November 29, 1962. In the meantime there had been
enacted on October 24, 1962, Public Law 87-885 (76 Stat. 1247).
Section 4 of Public Law 87-885 amended section 244 of the Immigration
and Nationality Act (8 U.S.C. 1254) by streamlining or condensing the
five subsections of section 244(a) into two subsections; and added
paragraph (f) which provides that no provision of this section shall be
applicable to an alien who (1) entered the United States as a crewman;
* * *. The special inquiry officer held that applications previously
made under section 244(a)(1) through (5) prior to October 24, 1962, have
not been preserved and that he was required to determine the
respondent's application for suspension of deportation under section 244
as presently amended. Inasmuch as that section specifically provided
that suspension of deportation should not be granted to an alien who
entered the United States as a crewman which, by definition in section
101(a)(10) of the Act includes a seaman, and inasmuch as the respondent
had entered the United States as a seaman, the special inquiry officer
concluded he fell within this terminology and was barred from suspension
of deportation.
Counsel for the respondent has filed a brief in which he contends
that the amendment of section 244 by section 4 of Public Law 87-885 on
October 24, 1962, was prospective in nature and applied only to future
crewman arrivals and not to all persons in that category already in the
United States; and that this respondent, who was already deportable,
was not affected by the new Act. Counsel also argues that under the
savings clause, section 405(a) of the Act, the present application for
suspension of deportation as well as the one made before the effective
date of the 1952 Act should be and are preserved and that the respondent
should be found statutorily eligible for the relief of suspension of
deportation. Counsel also states that the respondent, being statutorily
eligible, should be granted the discretionary relief requested.
Public Law 87-885 approved October 24, 1962 (76 Stat. 1247)
originated as Senate Bill S. 3361 to facilitate the entry of alien
skilled specialists and certain relatives of United States citizens and
for other purposes. The legislative history of the bill, as finally
reported in the statement of the Managers on the part of the House,
shows that agreement was reached by the Committee of Conference with
regard to the House amendment numbered 1 to amend the language of
section 4 of the Senate Bill to achieve the purpose envisioned by the
Senate in a modified manner. As intended by the Senate, relief would
have been granted to certain aliens physically present in the United
States, but that under the language agreed to by the Committee of
Conference, the granting of relief would be subject to Congressional
review and it would be predicated on the showing of specified type and
degree of personal hardship which might occur in the absence of such
relief. The amended language specifically excluded the granting of
relief to alien crewman (seaman and airman) and to persons who entered
the United States under educational exchange programs. /1/ In
commenting on the Bill, Mr. Walter and Mr. Feighan stated that the basic
principles of a sound immigration policy, in the continuous concern to
preserve the integrity of the very important international educational
exchange program, caused the conferees to exclude from the benefits of
this legislation those aliens who entered the United States as crewmen
or exchange visitors. /2/ Mr. Mansfield commented that section 4 of the
Bill, as agreed upon by the conferees, is in the nature of a substitute
for the provisions contained in the Senate version of the Bill which
would have permitted the Attorney General to create a record for
permanent residence in the cases of certain aliens who entered the
United States prior to October 24, 1952; that section 4 now provides a
procedure within the framework of the suspension of deportation
procedures presently contained in section 244 of the Immigration and
Nationality Act, and that the aliens affected would be granted
substantially the same relief that they would have received under the
provisions of section 4 of the Senate version of the Bill, with a
requirement that the action of the Attorney General in suspending
deportation be reported to Congress for approval. Mr. Keating stated
that the Conference version of section 244 has continuing future
applicability to any alien who can satisfy either the 7- or the 10-year
physical presence requirements in addition to other criteria for
suspension of deportation. /3/
It is believed that the decision of the special inquiry officer
should be affirmed for the reasons set forth in the case of Fassilis,
Cataldo and Fevola v. Esperdy, 301 F.2d 429 (2d Cir. March 12, 1962).
In that case the aliens involved had entered the United States on
January 29, 1960, January 14, 1956 and sometime prior to July 14, 1960,
respectively, all of the aliens entering this country in the status of
crewmen. The District Judge granted defendant's motion against Fassilis
on two theories -- first, that there was no abuse by the administrative
officials of the discretion given by the statute; and, second, that the
July 14, 1960 amendment to section 245 of the Immigration and
Nationality Act that became law while the administrative appeal was
pending precluded crewmen after that date from obtaining permanent
residence status under that section. /4/ On appeal, the Circuit Court
stated that there was a statutory change between the filing of the
appellants' applications and the ultimate administrative decision
disposing of these applications. (The decision of the District Director
as affirmed by the Regional Commissioner made no reference to the
statutory change enacted on July 14, 1960, excluding crewmen from the
benefits of adjustment of status under section 245(a) of the Immigration
and Nationality Act.) The court pointed out that the amendment of July
14, 1960, was not being applied retroactively and that while the
appellants' applications were still subject to administrative
adjudication, the appellants had no established right to the future
status that they were seeking to obtain by their applications,
especially since the statute involved made the granting of such
applications a matter wholly within the discretion of the Service. The
court further stated that the aliens in that case had acquired no status
prior to the amendment that they were deprived of by the amendment, for
the status each of them sought the agency to award them was not
acquirable until final administrative action upon their applications.
The court noted, that although not determinative of the result, it was
not without significance that when Congress amended section 245 of the
Immigration and Nationality Act of 1952, to preclude its application to
crewmen, it did not enact a savings clause (section 405(a)) to protect
pending administrative proceedings as it had done when that Act was
adopted. The court concluded that it affirmed the decisions of the
District Director on the ground that the Commissioner was required by
the new amendment to deny the applications and since the result reached
by the Commissioner was one over which he had no discretion, it was
unnecessary to decide whether he properly exercised the discretion which
he erroneously believed himself to have.
We find the reasoning of the Fassilis case, supra, equally applicable
to the circumstances of the case before us. Here, the respondent was
still the subject of administrative adjudication and had not established
any right to the future status he was seeking to obtain by his
application. No savings clause was enacted as a part of the amendment
of section 244 by the Act of October 24, 1962. The exclusion of relief
under section 244 applies to crewmen and exchange visitors as the result
of an announced public policy on the part of Congress. The same
exclusion from the benefits of adjustment of status under section 245 of
the Immigration Act of 1952 had previously been embodied in the
amendment thereto by the Act of July 14, 1960, which likewise excluded
alien crewmen from the benefits thereof. The law expresses a clear
Congressional policy and intent to exclude alien crewmen from the
benefits of the remedial legislation contained in sections 244 and 245
of the Immigration and Nationality Act. Inasmuch as in the case of
suspension of deportation, a favorable order would still require a
reference to Congress, it would appear incongruous to hold crewmen
eligible for a benefit from which Congress has specifically prescribed
their exclusion. /5/
For the reasons set forth at length in the foregoing discussion, we
concur in the opinion of the special inquiry officer that the
respondent, who entered the United States as a crewman, is not eligible
for adjustment of status under section 244(a) of the Immigration and
Nationality Act because of the exclusion of crewmen from the benefits of
that Act by the Act of October 24, 1962 (Public Law 87-885). The appeal
will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) 18 U.S.C. Cong & Adm. News, 5488-5489 (87th Cong. 2d Sess.
November 5, 1962); 108 Congressional Record 21981 -- Conference Report
No. 2552 (daily ed. October 11, 1962).
(2) 108 Congressional Record 22153 (daily ed. October 12, 1962).
(3) Volume 108 Congressional Record 22169 (daily ed. October 13,
1962).
(4) 192 F.Supp. 884 (S.D.N.Y., 1961).
(5) Cf. U.S. ex rel. Hintopoulos et al. v. Shaughnessy, 353 U.S. 72.
Adjustment of status under section 245 of the Immigration and Nationality Act, as amended, is denied as a matter of discretion to an alien who did not enter the United States as a nonimmigrant in good faith and who intended to circumvent the quota restrictions of the Act, having intended at the time of entry to remain as long as possible and having concealed in his application to the American Consul in Paris for a nonimmigrant visa the fact that his parents were then lawful permanent residents of the United States; that he had registered with the American Consulate in Tel Aviv in 1957 for an immigrant visa, and that he was denied a nonimmigrant visa by that same consulate in 1960.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer -- visitor.
The respondent, a native and citizen of Israel, male, 25 years of
age, married, appeals from an order entered by the special inquiry
officer on October 29, 1962, granting him voluntary departure in lieu of
deportation as an alien who entered the United States as a visitor on
August 13, 1962, and remained longer than permitted (section 241(a)( 2)
of the Immigration and Nationality Act; 8 U.S.C. 1251(a)(2)). The
order also provides for the respondent's deportation to Israel in the
event he fails to depart as required. Applications for discretionary
relief under sections 212(h)(1) and 245 of the Immigration and
Nationality Act were denied (8 U.S.C. 1182(h)(1) and 1255). This appeal
is directed to the denial of the applications for discretionary relief.
The issue of deportability is not before us as respondent has
conceded that he is deportable as charged in the order to show cause (p.
4). Our discussion of the evidence will be limited to the respondent's
applications for relief under sections 212(h) and 245 (supra).
The respondent was born at Tel Aviv, Israel, on February 9, 1937. He
and his parents registered for quota immigration visas at the American
Consulate in Tel Aviv on September 10, 1957 (p. 4 and letter attached to
Ex. 14). His parents entered the United States for permanent residence,
the father in 1958, the mother in 1959 (p. 7). They have resided in the
United States since their entry for permanent residence.
The respondent applied for a nonimmigrant visa at the American
Consulate in Tel Aviv during September of 1960. The consul at Tel Aviv
denied the respondent's application on the ground that he did not
believe the respondent to be a bona fide nonimmigrant (pp. 11 and 12).
Thereafter the respondent journeyed to Paris, France. During August
of 1961 he applied to the American Consul in Paris for a nonimmigrant
visa. He was asked in connection with this application as to whether he
had ever filed an application for a visa to come to the United States
and where his parents were residing at that time.
The respondent admits that he concealed from the consul in Paris the
fact that he was registered for an immigration visa at the Consulate in
Tel Aviv and had been denied a nonimmigrant visa in September of 1960 at
this same consulate. The respondent also admits that he informed the
consul in Paris that his parents were then residing in Tel Aviv, Israel
and that at the time he entered the United States on August 13, 1961, it
was his intention to remain in the United States as long as possible
(pp. 11-14). The respondent testified that he misrepresented the facts
to the consul because "I wanted to be together with my parents' (p. 15).
The fact that the respondent has applied for a waiver of the ground
of exclusion specified in section 212(a)(19) of the Immigration and
Nationality Act indicates a belief that he considers his
misrepresentations to the consul in Paris may have been material to the
issuance of the nonimmigrant visa with which he entered the United
States. He seeks a waiver of this ground for exclusion under the
provisions of section 212(h)(1) of the Immigration and Nationality Act
(8 U.S.C. 1182(h)(1)). This provision of the Immigration and
Nationality Act, added by the Act of September 26, 1961 (75 Stat. 655),
provides, inter alia, that the Attorney General in his discretion, may
admit the respondent for permanent residence notwithstanding the fact
that "he . . . has procured a visa or other documentation, or entry into
the United States, by fraud or misrepresentation . . .'
The respondent also seeks to adjust his unlawful immigration status
to that of a permanent resident alien without a departure from the
United States. He seeks to accomplish this under the provisions of
section 245 of the Immigration and Nationality Act as amended by the Act
of July 14, 1960. /1/ The broadened provisions of section 245, as
amended, merely require an applicant for status as a permanent resident
alien to establish that he was inspected and admitted or paroled into
the United States; that he is admissible to the United States for
permanent residence; that he is eligible to receive as immigration visa
and that an immigration visa is immediately available to him at the time
his application is approved. The statute also provides that
notwithstanding the fact that the applicant meets the substantive
requirements his status "may be adjusted by the Attorney General in his
discretion and under such regulations as he may prescribe.' (Emphasis
supplied.)
The respondent maintains that he can meet the substantive
requirements of section 245 (supra) provided the Attorney General
exercises his discretion under section 212(h)(1) (supra) thereby
removing the ground of inadmissibility which now exists. He was
inspected and admitted as a nonimmigrant at the port of New York on
August 13, 1961. He alleges that a quota immigration visa is
immediately available to him under the third preference of the Israeli
quota. /2/ The primary issue before us is whether the respondent's
applications merit favorable exercise of the Attorney General's
discretion.
The amendment to section 245 (supra /1/ ) was intended to broaden the
scope of the Attorney General's authority in order that he may adjust in
his discretion the status of all aliens other than alien crewmen and
aliens residing in territories adjacent to the United States who enter
the United States in good faith without any intention of circumventing
the quota restrictions of the Immigration and Nationality Act. (See
Committee Report, U.S. Code, Congressional and Administrative News, 86th
Congress, 2d Session 1960 at pp. 3137, 3138 and 3147.) We have in a
recent case /3/ adjusted the status of an alien from a nonquota area who
entered the United States as a nonimmigrant. The alien concerned
affirmatively established that although he had at some time in the past
a desire to enter the United States for permanent residence,
nevertheless at the time he secured his nonimmigrant visa he fully
intended to comply with the terms of his temporary admission unless
permitted to remain in the United States lawfully by taking advantage of
a provision of the immigration laws designed to obviate the need for
departure and reentry on his part. There was no showing in the case
that the alien intended to circumvent the quota restrictions of the
Immigration and Nationality Act.
The alien in the instant case admits that he concealed from the
consul at Paris the fact that he had been denied a nonimmigrant visa by
the consul at Tel Aviv, the fact that he had been registered for a quota
immigrant visa at the Consulate in Tel Aviv since September of 1957 and
the fact that his parents were then residing lawfully in the United
States The respondent also admits that at the time he entered the United
States as a nonimmigrant he had fully intended to remain as long as
possible in order that he could be "together with (his) parents.' The
evidence affirmatively establishes that the respondent did not enter the
United States in good faith as a nonimmigrant without any intention of
circumventing the quota restrictions of the Immigration and Nationality
Act.
The circumstances under which the respondent acquired his
nonimmigrant visa in Paris show a preconceived plan to enter the United
States as an immigrant regardless of his position on the Isareli quota
registration. An exercise of the Attorney General's discretion in this
case would adjust the status of an alien who fully intended to
circumvent the quota restrictions of the Immigration and Nationality
Act. Section 245 does not contemplate the adjustment of an alien's
status who did not enter the United States as a nonimmigrant in good
faith. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
(1) P.L. 86-648, 86th Congress, 2d Session.
(2) A visa petition filed in his behalf by his lawfully resident
alien wife was approved on August 28, 1962 (Ex. 6).
(3) Matter of Carlos Barrios, A-12376413, B.I.A., October 11, 1962,
Service motion to reconsider, denied January 1963, Int. Dec. No. 1264.
The favorable exercise of the discretionary authority contained in section 245 of the Immigration and Nationality Act, as amended, is accorded in alien from a nonquota country, previously denied an immigrant visa because he could not furnish an affidavit of support, who entered the United States as a nonimmigrant fully intending to comply with the terms of his admission, and who did not formulate a specific intention to become a permanent resident until after arrival when he saw an opportunity to work and study simultaneously.
CHARGE:
Order: Act of 1952 -- Section 241(a)(9) 8 U.S.C. 1251(a)(9) --
Failed to comply -- nonimmigrant visitor for pleasure.
The respondent, a native and citizen of Bolivia, male, 22 years of
age, unmarried, has been found deportable under section 241(a)(9) of the
Immigration and Nationality Act (8 U.S.C. 1251(a)(9)) as a nonimmigrant
visitor who failed to comply with the conditions of the status under
which he was admitted. An order entered by the Board of Immigration
Appeals on October 11, 1962 adjusted the respondent's immigration status
under the provisions of section 245 of the Immigration and Nationality
Act (8 U.S.C. 1255) and terminated the deportation proceedings. The
case is now before this Board on motion of the Immigration and
Naturalization Service for reconsideration of our decision and order of
October 11, 1962.
The Immigration and Naturalization Service seeks the withdrawal of
our order granting the respondent an adjustment of his immigration
status on the ground that our action is not a sound exercise of the
Attorney General's discretion. The Service maintains that to grant such
relief to a nonquota alien who entered as a nonimmigrant with a
preconceived plan to obtain permanent residence by adjusting his status
after arrival would encourage deliberate evasion of consular functions.
The Service also argues that an alien who "presents himself with tainted
hands' does not merit the favorable exercise of a provision in the
immigration laws (section 245) which "contemplates relief from hardship
in cases presenting strong equities justifying a departure from the
normal requirements of the law' (p. 5, Service motion).
Basically, the Service motion is premised upon the same conclusions
reached by the special inquiry officer when he denied the respondent's
application for an adjustment of his status. We rejected the special
inquiry officer's conclusions on the theory that the facts of this
particular case when considered in the light of the recent amendment of
section 245 by the Act of July 14, 1960, permitted an interpretation
more favorable to the respondent's application than that permitted by
the statute prior to its amendment.
The Service argument would have us read into the amended statute the
identical restrictions which were removed by the Congress. The Service
adheres to the theory that an alien nonimmigrant who had a desire or
purpose to enter the United States for permanent residence at sometime
prior to securing a visa and entry as a nonimmigrant, is precluded from
taking advantage of a statute specifically designed to enable him to
attain his past desire or purpose without departure from the United
States if permitted to do so lawfully. The courts have refused to adopt
this theory. Brownell v. Carija, 254 F.2d 78, C.A.D.C., 1957; Brownell
v. Gutnayer, 212 F.2d 462, C.A.D.C., 1954.
As stated above our decision to grant relief turns upon the facts of
this particular case. The Service would have us base our action solely
on the preliminary statement taken from the respondent on April 18, 1962
(Ex. 13). We do not agree with the Service that in the respondent's
sworn statement ". . . he unequivocally admitted that it was his
intention to come here permanently at the time that he applied for and
got his nonimmigrant visa' (p. 3 of Service motion).
The key questions and answers in the preliminary statement concerned
with the respondent's intention to establish a permanent residence in
the United States are as follows:
Q. Did you come to the United States with the intention to
remain here permanently?
A. Yes, sir.
* * * * * * *
Q. Then did you have as your intention in Switzerland in
December 1961, that you would come to the United States as a
visitor, then apply here for permanent residence?
A. Yes. (Ex. 13)
The first question makes no reference to the respondent's intention
"at the time he applied for and got his nonimmigrant visa.' The
respondent's affirmative reply to the second question merely establishes
that while in Switzerland in 1961 he decided to enter the United States
as a visitor and after such an entry he would apply for permanent
residence if permitted to do so lawfully. This is precisely the same
situation that was before the Courts of Appeal in the Carija and
Gutnayer cases (supra).
The Service concedes that on this record the respondent is
statutorily eligible for relief under section 245. They take the
position that the respondent should not be rewarded for his subterfuge
and evasion by granting him an adjustment of his status (p. 4, Service
motion). The Service in support of their position cites two cases /1/
which they allege "make it quite clear that a preconceived intent to
seek permanent residence through adjustment of status after arrival, is
a valid basis for nonexercise of discretion under section 245, even
though the alien may be entitled to admission as a nonquota immigrant'
(p. 5, Service motion).
The cited cases are not dispositive of the issue presented by the
instant case. Both cases are concerned with aliens who entered as
nonimmigrant crewmen. Relief under section 245 as amended is
specifically barred to alien crewmen. Entry as a "bona fide
nonimmigrant' was a statutory requirement of section 245 at the time the
alien in the Trujillo-Gonzalez case applied for relief under section
245. The District Director denied relief on two grounds (1) statutory
ineligibility and (2) the facts did not warrant the exercise of
discretion. The court held that the District Director had reasonable
grounds to believe that the alien was not a bona fide crewman and
therefore statutorily ineligible for relief. The Service in the instant
case concedes that the respondent is statutorily eligible.
The alien crewman in the Fassilis case, /1/ supra, applied for relief
under section 245 prior to its amendment on July 14, 1960. The District
Director on June 2, 1960 denied relief on both statutory and
discretionary grounds. The Regional Commissioner on August 23, 1960,
subsequent to the amendment of section 245, affirmed the action taken by
the District Director. The court found no irregularity in the denial of
the alien's application on the ground that he was not a bona fide
nonimmigrant crewman. The court, however, disposed of the case on the
theory that the amendment of section 245 while the administrative
proceeding was pending made mandatory the alien's statutory
ineligibility for relief since he entered as a crewman.
Here we are confronted solely with a matter of discretion whereas the
aliens in the cases referred to by the Service were both ineligible for
relief in that they did not enter as bona fide nonimmigrants, a
statutory element no longer present in section 245. The only evidence
we find germane to denying discretionary relief for the reason advanced
by the Service, namely, "that it outrages all of the orderly processes
of government to reward . . . subterfuge and evasion . . .' is the
respondent's testimony that he did not inform the consul in Switzerland
of his "intentions' at the time the nonimmigrant visa was issued (Ex.
13, R. p. 13). There is no showing in this record, however, that the
respondent as a condition precedent to obtaining a nonimmigrant visa was
required by the consul in Switzerland to state his ultimate "intention'
after arrival in the United States.
We do not share the Service concern that to grant relief in this case
"would encourage deliberate evasion of consular functions' (p. 5 of
Service motion). We stated in our opinion of October 11, 1962, that
section 245 is not the only provision of the immigration laws /2/ which
permits an alien in the United States to apply directly to the Attorney
General for an adjustment of his immigration status. Consular functions
are protected by the fact that the amended statute retains the safeguard
that an alien's immigration status "may be adjusted by the Attorney
General in his discretion and under such regulations as he may
prescribe.'
The facts of the instant case concerned with the exercise of
discretion are simply not as heinous as the Service would have us
believe. The Government has not made out a case which controverts the
following testimony of the respondent with regard to his purpose in
entering the United States as a nonimmigrant:
* * * * * * *
A. The principal purpose of coming here was to visit some
factories and to visit some relatives, but not at that time to
change to a resident here.
Q. When did you decide that you wanted to become a resident of
the United States?
A. When I saw the opportunity that I could work here and study
here at the same time. When I entered this country I was not
decided about changing status to become a resident. I wanted
first to find out here about the circumstances and the
opportunities (R. p. 13).
* * * * * * *
Q. Mr. Barrios, is there anything else that you wish to say on
the evidence?
A. I didn't intend to violate your laws. If I did it was not
with my intention (R. p. 18).
A composite of the evidence found in the preliminary statement (Ex.
13) and the record of hearing relevant to the issue of exercising the
Attorney General's discretion establishes to our satisfaction that we
have here an alien from a nonquota country who prior to entry had been
unable to obtain an immigration visa for permanent residence because he
could not furnish an affidavit of support. We also have a nonquota
alien who entered the United States as a nonimmigrant fully cognizant of
the fact that he could not remain permanently unless permitted to do so
lawfully. This combination of factors does not spell out a case of
circumventing the immigration laws by seeking an adjustment of status
under the amended provisions of section 245 of the Immigration and
Nationality Act. Discretionary relief is warranted on this record.
A case recently decided by this Board is typical of a class of cases
in which relief should not be granted as a matter of discretion although
the alien was statutorily eligible for an adjustment of status under
section 245 (supra). The alien in Matter of Sauer, registered with his
parents for an immigration visa under the Israeli quota in September of
1957. His parents secured visas and entered the United States for
permanent residence in 1958 and 1959 respectively.
The alien Sauer in September of 1960 applied for and was denied a
nonimmigrant visa by the Consul at Tel Aviv. He journeyed to Paris,
France, and there falsely represented to the Consul that he had never
applied for an immigration visa to enter the United States and that his
parents were then residing in Israel. He secured a visitor's visa in
August of 1961 and entered the United States as a nonimmigrant.
Following this entry he married a resident alien. A third preference
visa petition filed by his wife was approved on August 28, 1962. During
the course of deportation proceedings he applied for an adjustment of
status under the provisions of section 245. The Board of Immigration
Appeals dismissed his appeal from an order of the special inquiry
officer denying his application. The evidence established to our
satisfaction that he did not enter the United States in good faith as a
nonimmigrant and that he intended to circumvent the quota restrictions
when he falsely represented his immigration status to the Consul at
Paris. Matter of Sauer, A-12350247, BIA, January 1963, Int. Dec. No.
1265.
The motion will be denied.
ORDER: It is directed that the motion be and the same is hereby
denied.
(1) U.S. ex rel. Trujillo-Gonzalez v. Esperdy, 186 F.Supp. 909 (D.C.
S.D.N.Y., 1960); Fassilis v. Esperdy, 192 F.Supp. 84 (D.C. S.D.N.Y.,
1961).
(2) Aliens who apply for the creation of a record of lawful entry
under section 249 of the Immigration and Nationality Act do not make
application directly to the consul.
Since the existence of good moral character for a reasonable period of time is a factor which must be considered in determining whether an application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, merits the favorable exercise of discretion, adjustment is denied to an alien who was convicted as recently as November 1961 of a crime involving moral turpitude, has had several additional brushes with the law, is at liberty only upon the restraint exercised by the terms of his probation, has been married but a short time, and has not yet fully solved his problem areas.
CHARGE:
ORDER: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) -- Crime
committed within five years after entry, to wit: transporting stolen
auto.
The case comes forward pursuant to certification by the special
inquiry officer of his order dated July 13, 1962 granting the
respondent's application for a waiver under section 212(g) of the
Immigration and Nationality Act of the ground of inadmissibility under
section 212(a)(9) of the Act, resulting from his conviction on November
1, 1961 of the offense of unlawfully, wilfully and knowingly
transporting a stolen motor vehicle in interstate commerce, knowing the
same to have been stolen; and further ordering that the respondent's
application for adjustment of status pursuant to section 245 of the Act
to that of an alien lawfully admitted for permanent residence be
granted.
The record relates to a native and citizen of Belgium, 20 years old,
male, married, who last entered the United States at the port of New
York on October 15, 1960 and was admitted for permanent residence. He
was previously in the United States from 1957 to 1960 in a diplomatic
status as the member of a family attached to the Belgian Embassy. The
respondent was convicted in the United States District Court for the
Southern District of New York on November 1, 1961 upon his plea of
guilty of the offense of unlawfully, wilfully and knowingly transporting
a stolen vehicle in interstate commerce, knowing the same to have been
stolen in violation of Title 18, sections 2312 and 2, U.S. C. and was
sentenced to one year and one day, execution of sentence suspended and
defendant placed on probation for two years, subject to the standing
probation order of the court. The term "stolen' as used in 18 U.S.C.
2312 includes all felonious takings of motor vehicles with intent to
deprive the owner of the rights and benefits of ownership. /1/ The
crime involves moral turpitude. The respondent is subject to
deportation as charged in the order to show cause.
Respondent has applied for adjustment of status pursuant to the
provisions of section 245 of the Immigration and Nationality Act in
conjunction with a waiver under 212(g) of the ground of inadmissibility
arising under section 212(a)(9) as a result of his conviction as set
forth above. Section 245(a) of the Immigration and Nationality Act as
amended by section 10 of the Act of July 14, 1960 (74 Stat. 504, 8 U.S.
C. 1255(a), 1961 C.A.P.P.) provides that the status of an alien, other
than an alien crewman, who was inspected and admitted or paroled into
the United States may be adjusted by the Attorney General in his
discretion and under such regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence if (1) the alien makes
an application for such adjustment, (2) the alien is eligible to receive
an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at
the time his application is approved.
The respondent has no arrest record in Belgium. His arrest record in
the United States, other than a conviction which forms the ground of his
deportability, is not entirely clear from the record. In his
application for adjustment of status pursuant to section 245 (Form
I-485) executed April 5, 1962, the respondent sets forth disorderly
conduct, Washington, D.C., 1960, two arrests, disposition uncertain. He
indicates an arrest in Washington about a month after his conviction for
disorderly conduct as a result of which he forfeited $10 collateral, an
earlier disorderly conduct arrest when he was about 18, from which his
father obtained his release.
A report of the probation officer for the United States District
Court for the District of Columbia, dated April 6, 1962, discloses that
the respondent's prior arrest record up until the date he was placed on
probation included three traffic violations, the subject forfeiting
collateral each time, and one arrest for disorderly conduct, which was
dismissed. Since being placed on probation the respondent has been
given another ticket for a traffic violation for driving a motorcycle
without a driver's permit and upon this charge he forfeited a small
collateral. The report makes reference to a skirmish which took place
in the respondent's neighborhood several weeks ago which was disposed of
with no further action taken. The probation report indicates that the
respondent is now enrolled in a weekly group therapy program, is anxious
to solve some of his problem areas, and in view of the fact that
respondent is now working regularly, has remained out of any serious
difficulty with local authorities in recent months, has just gotten
married and is fully cooperating, it is the recommendation of the
probation officer, as well as that of the Federal Court in New York
City, that he be permitted to remain in this country.
The granting of adjustment of status pursuant to section 245 of the
Immigration and Nationality Act is not automatic upon a showing of
compliance with the three requisites thereof: (1) the alien makes an
application for such adjustment; (2) the alien is eligible to receive
an immigrant visa and is admissible to the United States for permanent
residence; and (3) an immigrant visa is immediately available to him at
the time his application is approved. Section 245 provides that the
status of an alien "may be adjusted by the Attorney General, in his
discretion.' The waiver under section 212(g), by regulation, 8 CFR
245.1, can only be granted in conjunction with the application for
adjustment of status under section 245 or section 249. /2/ An applicant
for adjustment of status under section 245, as amended, is not required
by the law or implementing regulations to establish good moral character
and the provisions of section 101(f) of the Act, setting forth eight
classes of persons who shall not be regarded as persons of good moral
character, are not literally applicable.
However, it cannot be denied that good moral character is a factor
which must be considered in determining whether the Attorney General's
discretion should be exercised in a particular case. The standards set
forth in section 101(f), as well as other reasons or factors, may be
considered in determining whether an application for the exercise of
discretion merits favorable action. /3/ Section 245, like section 249,
does not specify the period for which good moral character is required.
Nevertheless, good moral character to warrant the exercise of descretion
must exist for a reasonable period of time in considering whether the
exercise of favorable discretion is warranted. /4/
In the present case the respondent's crime, which involves moral
turpitude, was committed on or about September 20, 1961 and on November
1, 1961, upon conviction upon his plea of guilty, his sentence to one
year and one day was suspended and he was placed on probation for a
period of two years. He is presented on probation to extend to November
1, 1963. He has been married only since April 2, 1962, a period of
approximately nine months. He has had several additional minor brushes
with the law.
In view of the comparative recency of the respondent's crime, the
fact that he is at liberty only upon the restraint exercised by the
terms of his probation, the fact that he has been married but a short
time, and the evidence indicating that the respondent has not yet fully
solved his problem areas, it is believed that the favorable exercise of
the Attorney General's discretion is not warranted.
Accordingly, we need not consider whether the respondent's status is
susceptible of adjustment under section 245 of the Immigration and
Nationality Act. In view of this disposition of the case the Service
motion dated November 21, 1962, which is concerned with discretionary
relief, will be denied.
ORDER: It is ordered that the application for adjustment of status
pursuant to section 245 of the Immigration and Nationality Act be
denied.
It is further ordered in Service motion to remand dated November 21,
1962, be denied.
It is further ordered that the alien be deported to Belgium on the
charge stated in the order to show cause.
(1) United States v. Turley, 352 U.S. 407 (1957).
(2) Cf. Cammarata v. Sahli, 163 F.Supp. 125 (E.D. Mich., S.D. 1958).
(3) Matter of S , 8 I. & N. Dec. 234.
(4) Cf. Matter of P , 8 I. & N. Dec. 167; Matter of W , Int. Dec.
1088; Scozzari v. Rosenberg, 302 F.2d 593 (9th Cir. 1962), cert. den.
369 U.S. 886; Braun-Vega v. Esperdy, 62 Civ. 2487, S.D. N.Y. (11/9/
62).
(1) In determining mitigation of fine under section 254(a)(2) of the Immigration and Nationality Act, the following factors, among others, are to be considered: (1) proper precautions to detain the crewmen on board; (2) cooperation with the Service after the escape of the crewmen; (3) earnest efforts of the responsible parties to locate and/ or apprehend the escapees; (4) apprehension of the escapees by the responsible parties or the voluntary return of the crewmen; (5) prompt removal of the escapees by and at the expense of the responsible parties and (6) apprehension by Service officers on information of the responsible parties.
(2) In arriving at the extent of mitigation, it is the reasonableness of the precautions exercised, not necessarily their effectiveness, which is determinative.
BASIS FOR FINE: Act of 1952 -- Section 254(a)(2) 8 U.S.C. 1284 .
This appeal is directed to an administrative penalty totaling $2,000,
$1,000 as to each of the persons named above, which the District
Director has ordered imposed on Sea Brokers, Inc., as owners, agents,
charterers or consignees of the M/V "Clydefield.' Said official charges
that Pang Chui and Tse So are aliens; that they were serving as crew
members aboard this vessel at the time of arrival, ante; that they were
not granted conditional landing privileges insofar as the United States
was concerned; and that they were not thereafter detained aboard the
ship at all times. He has also found present herein no factors which,
in his opinion, merit mitigation of the fines to any extent.
The basic facts of this matter are not in dispute. Pang Chui and Tse
So are aliens and they were serving as crewmen aboard the ship at the
time here involved. Immigration inspection was accorded the crew of
this ship immediately upon its arrival from foreign and resulted in the
refusal of conditional landing privileges to them and to 29 other
Chinese members of the crew. Some time in the late evening hours of
September 5, 1962 or the early morning hours of September 6, 1962, these
two crewmen absconded from the vessel and effected illegal entry into
the United States. They were not aboard the ship on the occasion of its
next foreign sailing, and insofar as the record shows they are still at
large in the United States.
The foregoing establishes, and it is uncontested, that the absolute
duty of detention imposed on Sea Brokers, Inc., by the statute as to
these crew members was not met and, therefore, that liability to the
fines has been incurred. The only issue presented for our consideration
is whether mitigation of the fines is merited and, if so, to what
extent. In our opinion, the District Director's refusal to authorize
such relief herein was clearly erroneous.
There are many factors, and combinations thereof, to be considered in
arriving at a determination as to whether mitigation is warranted under
this statute, as well as the amount thereof. Examples of such factors
would be:
(1) Proper precautions to detain the crewmen on board, such as
-- the hiring of professional guards; lifting of the detainees'
papers; confining them to quarters; and having the ship
constantly checked by its officers to see to the crewmen's
continued detention on board.
(2) Cooperation with the Service after the escape of the
crewmen, such as -- furnishing the Service prompt notice of their
escape; turning over their papers; and furnishing information
which might be of use in apprehending them.
(3) Earnest efforts of the responsible parties to locate and/
or apprehend the escapees, such as -- immediately searching the
ship; hiring private detectives; and posting rewards.
(4) Apprehension of the escapees by the responsible parties or
the voluntary return of the crewmen.
(5) Prompt removal of the escapees by and at the expense of the
responsible parties.
(6) Apprehension by Service officers: on information of the
responsible parties (a) with little or no extra effort; (b) with
considerable effort and/or expense.
The total amount of mitigation merited, then, would logically be the
sum of all the mitigating factors present therein. In this connection,
it is the reasonableness of the precautions -- not necessarily their
effectiveness -- which is determinative. Of course, under the statute
the maximum mitigation is $800.
Application of the facts of this matter in the light of the foregoing
convinces us that the total penalty herein should be reduced to the
extent of $1,200, $600 per crewman. Prior to this vessel's arrival, the
Master wired its agents to put them on notice that professional guards
would be necessary because of the make-up of his crew. At the time here
involved, one professional guard was on duty at or near the head of the
gangway, on an around-the-clock basis. Also, the pier guard was
notified twice, once telephonically and once personally, that no Chinese
members of the crew were to be permitted through the gate unless they
had a pass, and the names of the only four Chinese members of the crew
who had passes were furnished him. In addition, one Chinese
quartermaster per shift was posted at the gangway, or under shelter
nearby in bad weather, to watch for any detainees leaving so that they
could be prevented from doing so. Moreover, a deck officer and an
apprentice were assigned to guard watch to see to it that no detainees
left the ship. The ship's officers conducted periodic checks (at least
five a day) of the detainees and it was one of these that revealed the
absence of these crew members. It appears from the record that the
escape of these two crew members was promptly reported to the Service
telephonically. Their discharge books were turned over to an
immigration officer who came aboard to investigate their escape. Their
Hong Kong identification cards were forwarded to the appropriate British
Consul.
In the light of the foregoing, we cannot agree with the District
Director's conclusion that the hiring of only one professional guard to
enforce the detention of 31 detained crew members is not a mitigating
factor. This is not to say, however, that such might not be the case if
it were the only factor present. But here we have other equivalent
factors which must be taken into consideration, such as the assigning of
a deck officer and an apprentice to duty to assist the professional
guard; the stationing of a quartermaster at the gangway for a similar
purpose; and notifying the pier guard as was done here. In our
opinion, these aspects of the case coupled with the hiring of one
professional guard do constitute a proper precaution meriting
mitigation. When they are considered with the other factors mentioned
above, then mitigation of the penalty to the extent indicated clearly is
warranted.
Maximum mitigation of the penalties, to wit: down to $200 per
crewman, is not warranted. As pointed out by the District Director, no
apparent effort was made by the responsible parties to bring about the
location and/or apprehension of the escapees. They were not confined to
their quarters. Apparently, no information as to their possible
whereabouts in the United States could be furnished the Service by the
responsible parties. Finally, since they are still at large in the
United States it is obvious that they have not been removed from this
country promptly by and at the expense of the responsible parties. We
will not enter an appropriate order accordingly.
ORDER: It is ordered that the decision of the District Director be
modified to provide for mitigation of the penalty to the extent of
$1,200, $600 per crewman, and that as so modified the decision of said
official be and the same is hereby affirmed. The penalty permitted to
stand is $800, $400 as to each crewman.
Since the alien is not institutionalized at public expense where the maintenance charges have been paid and are currently being paid in the sum demanded, even though the charges have been fixed by appropriate State authorities at a rate less than the rate prescribed under State statute, a charge of deportability under section 241(a)(3) of the Immigration and Nationality Act does not lie. Matter of C R , 7 I. & N. Dec. 124, overruled.
CHARGE:
Order: Act of 1952 -- Section 241(a)(3) 8 U.S.C. 1251(a)(3) --
Institutionalized at public expense for mental disease.
The case comes forward on appeal from the order of the special
inquiry officer dated August 30, 1962, directing that the respondent be
deported to Belgium on the charge contained in the order to show cause.
The record relates to a native and citizen of Belgium, about 27 years
old, female, who last entered the United States at the port of New York
on May 28, 1960, as a returning resident. She was previously admitted
to the United States on March 29, 1958, for permanent residence and
thereafter made two trips to Belgium returning from her first trip on
March 30, 1959, after an absence of about two months and from her last
trip after a stay in Belgium of about seven or eight months. She is
married to a permanent lawfully resident alien by whom she has a
four-year-old son.
The respondent has been a patient at the Chicago State Hospital since
her commitment thereto by the County Court of Cook County, Illinois, on
September 26, 1960. Her condition has been diagnosed as schizophrenic
reaction, chronic undifferentiated type. The respondent was previously
committed to the same institution from August 8, 1960, to August 29,
1960. The statement of a staff member of the hospital, dated September
29, 1960, sets forth that the respondent was a schizophrenic of long
standing and that her history disclosed that she had been hospitalized
in a mental institution prior to the time she came to the United States.
The respondent's hospitalization in a mental institution in Belgium on
two occasions prior to her entry into the United States was verified.
The section of law under which deportation of the respondent is
sought is section 241(a)(3) of the Immigration and Nationality Act which
provides for the deportation of an alien who hereafter, within 5 years
after entry, becomes institutionalized at public expense because of
mental disease, defect or deficiency, unless the alien can show that
such disease, defect or deficiency did not exist prior to his or her
admission to the United States. The evidence establishes that the
respondent has become institutionalized within 5 years after entry
because of a mental disease, defect or deficiency, and it has not been
shown that the mental disease, defect or deficiency did not exist prior
to her admission to the United States. The only issue remaining is
whether the respondent was institutionalized at public expense within
the meaning of the act.
The special inquiry officer, by order dated March 31, 1961, after a
hearing at which the husband had testified that he had paid nothing on
his wife's bill, that he did not want his wife back and that because of
all of his other expenses he was unable to pay for her hospitalization,
ordered deportation on the charge stated in the order to show cause. On
appeal, by order dated June 23, 1961, we remanded the case for the
purpose of including in the record evidence showing the husband's legal
liability for payment of hospitalization and treatment in the Chicago
State Hospital and the final results of an action for recovery of the
respondent's monthly maintenance charges from the respondent's husband
provided in sections 9-19 and 9-23 of the Illinois Mental Health Code
and for such other action as might be appropriate.
At the reopened hearing evidence was presented showing that the
husband had been informed by the Department of Welfare as of January 30,
1962, that the monthly rate to him on the basis of his financial
situation for the care and maintenance of the respondent was decreased
from $36.00 a month to $9.00 a month, that the husband had remitted
payment on February 16, 1962 of all charges assessed against him for the
care of his wife which brought his account up to current status, that
the husband paid $87.00, the amount billed for his wife's care, and has
been paying the sum of $9.00 a month as billed for his wife's care and
maintenance at the Chicago State Hospital.
The special inquiry officer, after considering various provisions of
the Illinois Mental Health Code and several court decisions, /1/ came to
the conclusion that inasmuch as the only payments made for the
respondent's care and maintenance were her husband's remittances of
$9.00 per month which were less than the rate prescribed under section
9-20 of the Illinois Mental Health Code, that the respondent had been
institutionalized at public expense. The decision of the special
inquiry officer was based upon the precedent decision of Matter of C R ,
7 I. & N. Dec. 124, 126, which was quoted as follows:
The determining factor under section 241(a)(3), supra, however,
is whether an alien after the enactment of the statute "becomes
institutionalized at public expense' because of mental disease,
defect or deficiency. Congress in providing this new ground for
deportation in the 1952 Act was aware of the fact that in some
cases where aliens are institutionalized because of mental
deficiency they escape deportation as a public charge by payment
of the minimum charge of public institutions which does not
represent the full cost to the taxpayer. Under the circumstances,
we are of the opinion that the special inquiry officer's
conclusion with respect to the respondent's hospitalization is
based upon the wrong premise. It is our opinion that the defenses
applicable to the "public charge' provision of the 1917 Act have
no application to section 241(a)( 3), supra. In other words,
under section 241(a)(3) of the 1952 Act there is no basis for
terminating the proceedings as long as the full debt has not been
discharged.
The decision in Matter of C R , supra, relied upon the language of
Senate Report No. 1515 pursuant to Senate Resolution 137 (81st Congress,
2d Session) at page 390 in which it was the conclusion of the
subcommittee that all aliens who become public charges any time after
entry from causes not affirmatively shown to have arisen after entry
should be subject to deportation; that information available to the
subcommittee indicates that in some cases where persons are
institutionalized because of mental deficiency they escape deportation
as a public charge by payment of the minimum charge of public
institutions which does not represent the full cost of the taxpayer. It
was therefore recommended that all aliens who become institutionalized
because of mental deficiency within five years after entry should also
be deportable. The Committee Report is dated April 20, 1950.
It is believed that by relying upon this language contained in the
Senate Report No. 1515, the decision in Matter of C R /2/ reached an
erroneous conclusion. It is true that the various Senate bills
introduced at the first and second sessions of the 82nd Congress (S.
716 introduced January 29, 1951, S. 2055 introduced August 27, 1951 and
S. 2550 introduced January 29, 1952) all provided in section 241(a)(3)
for the deportation of an alien who within five years after entry became
institutionalized because of mental disease, defect, or deficiency.
However, the House Bill, H.R. 5678, introduced October 9, 1951 (82nd
Congress, 2d Session) section 241(a)(3) provided for the deportation of
any alien who "hereafter within five years after entry, becomes
institutionalized at public expense because of mental disease, defect,
or deficiency.' (Emphasis supplied.) In an analysis of some of the major
differences between the McCarran Omnibus Bill (S. 2550) and the
Humphrey-Lehman Bill (S. 2842) it was pointed out that section 241(
a)(3) of the McCarran Bill makes deportable aliens who, within five
years after entry, become institutionalized because of mental disease,
defect or deficiency, though it be a nervous breakdown, whether or not
the alien can pay his own way and whether or not the cause existed
before entry. The Humphrey-Lehman Bill makes such persons deportable
only if they are institutionalized at public expense and if the mental
disease, defect or deficiency existed prior to entry. It was pointed
out that the Humphrey-Lehman Bill follows the present law. /3/
The bill, as it was finally enacted on June 27, 1952, provides in
section 241(a)(3), 8 U.S.C. 1251(a)(3), for the deportation of any alien
who hereafter, within five years after entry, becomes institutionalized
at public expense because of mental disease, defect or deficiency,
unless the alien can show that such disease, defect, or deficiency did
not exist prior to his admission to the United States. The final draft
of the bill appears to have evolved as a floor amendment and the only
comment relative thereto is to the effect that in conforming the
language of both House and Senate versions, the conferees have provided
for a statute of limitations (as contained in the House version) in
accord with humanitarian principles, particularly in the cases of aliens
where deportation would be based on mental disease or on economic
distress. /4/
It can be seen that the bill as finally enacted differed widely from
the original draft which was the result of the recommendations contained
in House Report No. 1515 (81st Congress, 2d Session), page 390. Not
only was a five-year statute of limitations provided for, but provision
was also made that if the alien became institutionalized at public
expense and if it was shown that the mental disease, defect or
deficiency did not exist prior to his admission, the ground of
deportability would fail. Thus, the legislation as finally enacted
resembled closely the public charge provisions of the Immigration Act of
February 5, 1917. Therefore, the comments in the Report on the
Committee on the Judiciary pursuant to Senate Resolution 137 /5/ with
its recommendation that all aliens who become institutionalized because
of mental deficiency within five years of entry should be deportable was
never enacted into law, but the less stringent provisions of the
Humphrey-Lehman Bill was enacted into section 241(a)(3) which followed
the then existing law. /6/
The law that then existed is set forth in Matter of B , 3 I. & N.
Dec. 323 (A.G., October 28, 1948). In that case the respondent first
entered the United States in 1920, and last entered on July 22, 1939,
after a visit to Ireland. Early in 1940 she was sent to the Cook County
Psychopathic Hospital for observation and in March she was ordered
committed to the Manteno State Hospital by the County Court of Cook
County, Illinois. Her condition was diagnosed as psychoneurosis,
reactive depression, and at the time of the hearing she was still a
mental patient at that institution. Her sister provided money for the
purchase of respondent's clothes and for other incidentals. The
Illinois statute provided that the respondent was entitled to receive
free maintenance, care and treatment while a patient at the Mantena
State Hospital and she was only liable for her clothing, transportation
and other incidental expenses which were discharged by her sister. The
Board, citing the cases of Nocchi v. Johnson, 6 F.2d 1 (1st Cir., 1925)
and Ex parte Kichmiriantz, 283 F. 697 (N.D. Cal. 1922), evolved the
following rule: (1) the State or other governing body must, by
appropriate law, impose a charge for the services rendered to the alien;
in other words, the State must have a cause of action in contract
against either the person taking advantage of the State's services or
other designated relatives or friends; if no charge is made and if the
State does not have a cause of action, the alien cannot be said to be a
public charge; (2) the authorities must make a demand for payment of
the charge upon those persons made liable under the State law except
where the patient and persons legally responsible for its care and
maintenance are known to be destitute; and (3) there must be a failure
to pay for the charges; if there is a failure to pay either because of
the lack of demand or because the State authorities do not perform their
duty to collect the charges, the alien cannot be said to have become a
public charge. A minority of the Board dissented from this view but the
Attorney General sustained the majority opinion.
In the present case, the State has fixed a charge having in mind the
ability of the respondent or her legally liable husband, to pay, and
payment has been made of the sum demanded. The fact that the State
might later have recourse against the estate of the patient or of her
husband we believe is not material to the charge laid under section
241(a)(3) of the Immigration and Nationality Act. Inasmuch as the
maintenance charges have been paid and are currently being paid, it
cannot be said that the respondent is being institutionalized at public
expense and the charge must therefore fall. The proceedings will be
terminated.
ORDER: It is ordered that the appeal be sustained and that the
proceedings be and the same are hereby terminated.
(1) Sections 9-19, 9-20, 9-21, 9-22, and 9-24 of the Illinois Health
Mental Code; Public Welfare v. Bohleber, 21 Ill.2d 587, 173 N.E.2d 457;
Department of Public Welfare v. A'Hern, 14 Ill.2d 575, 153 N.E.2d 22.
Both of these cases involved claims against the estate of the deceased
patients for maintenance charges.
(2) 7 I. & N. Dec. 124.
(3) 98 Congressional Record 5799.
(4) House Report No. 2096 (82nd Cong., 2d Sess.), p. 127; 98
Congressional Record 7017 (June 11, 1952).
(5) Senate Report No. 1515 (81st Cong., 2d Sess., 390).
(6) 98 Congressional Record 5797.
Neither the Board of Immigration Appeals nor the special inquiry officer, in deportation proceedings, has jurisdiction to grant or to review the denial of a waiver of the foreign-residence requirements of section 212(e) of the Immigration and Nationality Act, as amended. (Reaffirmed, Matter of Irie, Int. Dec. No. 1304.)
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant remained longer.
The case comes forward on appeal from the order of the special
inquiry officer dated October 8, 1962, denying the respondent's
application for adjustment of status pursuant to section 245 of the
Immigration and Nationality Act, denying the application of the
respondent for suspension of deportation pursuant to section 244(a)(5)
of the Act but granting the respondent's application for the privilege
of voluntary departure in lieu of deportation, with the further order
that if respondent failed to depart as required, the privilege of
voluntary departure would be withdrawn and the respondent would be
deported from the United States to the Republic of the Philippines on
the charge contained in the order to show cause.
The record relates to a native and citizen of the Philippine Islands
33 years old, female, who last entered the United States through the
port of Honolulu, Hawaii, on January 10, 1955, at which time she was
admitted as an exchange visitor to receive training as a medical doctor.
Her last extension of temporary stay in the United States expired
December 4, 1961, but she has failed to depart from the United States.
Deportability on the charge contained in the Order to Show Cause is
established.
The respondent has made application for adjustment of status to that
of a permanent resident pursuant to the provisions of section 245 of the
Immigration and Nationality Act. The respondent was originally admitted
as an exchange visitor to receive training as a medical doctor. She
therefore comes under the provisions of 8 CFR 245.1 which provides in
pertinent part:
Pursuant to section 212(e) of the Act, an alien who has or has
had the status of an exchange alien or of a nonimmigrant under
section 101(a)(15)(J) of the Act is not eligible for the benefits
of section 245 of the Act unless he has complied with the foreign
residence requirements of section 212(e) of the Act or has been
granted a waiver thereof.
Section 212(e) of the Immigration and Nationality Act, as added by
the Act of September 21, 1961 (P.L. 87-256), the Mutual Educational and
Cultural Exchange Act of 1961, provides as follows:
No person admitted under section 101(a)(15)(J) or acquiring
such status after admission shall be eligible to apply for an
immigrant visa, or for permanent residence, or for a nonimmigrant
visa under section 101(a)(15)(H) until it is established that such
person has resided and been physically present in the country of
his nationality or his last residence, or in another foreign
country for an aggregate of at least two years following departure
from the United States: Provided, That such residence in another
foreign country shall be considered to have satisfied the
requirements of this subsection if the Secretary of State
determines that it has served the purpose and the intent of the
Mutual Educational and Cultural Exchange Act of 1961: Provided
further, That upon the favorable recommendation of the Secretary
of State, pursuant to the request of an interested United States
Government agency, or of the Commissioner of Immigration and
Naturalization after he has determined that departure from the
United States would impose exceptional hardship upon the alien's
spouse or child (if such spouse or child is a citizen of the
United States or a lawfully resident alien), the Attorney General
may waive the requirement of such two-year foreign residence
abroad in the case of any alien whose admission to the United
States is found by the Attorney General to be in the public
interest: And provided further, That the provisions of this
paragraph shall apply also to those persons who acquired exchange
visitor status under the United States Information and Educational
Exchange Act of 1948, as amended.
The respondent submitted an application for a waiver to the
Immigration and Naturalization Service and on June 11, 1962, was
informed by the District Director, Los Angeles District, that the
application for a waiver had been denied (Ex. 5). The special inquiry
officer has concluded that the granting of the waiver under section
212(e) lies within the jurisdiction and the discretion of the District
Director and that the authority to grant such a waiver has not been
delegated to a special inquiry officer; therefore, he has no authority
either to act in connection with such an application for a waiver or to
review any decision made by the District Director upon an application
for a waiver.
Counsel contends that the provisions of section 235(a) of the
Immigration and Nationality Act (8 U.S.C. 1225(a)) and of the
regulations 8 CFR 242.17(a) are broad enough to allow the special
inquiry officer to examine every aspect of the respondent's eligibility
for adjustment of status. He summarizes his argument by stating that
the Board has been granted jurisdiction to review the decision of the
special inquiry officer as to eligibility for adjustment of status under
section 245 of the Act and, unless there is a specific statute or
regulation to the contrary, the question of eligibility must also
include a determination of the applicant's eligibility for a waiver of
the two-year residence requirements.
The nonimmigrant status of the respondent is defined in section 101(
a)(15)(J) of the Immigration and Nationality Act as added by section
109(b) of the Act of September 21, 1961 (The Mutual Educational and
Cultural Exchange Act of 1961) as an alien having a residence in a
foreign country which he has no intention of abandoning who is a bona
fide student, scholar, trainee, teacher, professor, research assistant,
specialist, or leader in a field of specialized knowledge or skill, or
other person of similar description, who is coming temporarily to the
United States as a participant in a program designated by the Secretary
of State, for the purpose of teaching, instructing or lecturing,
studying, observing, conducting research, consulting, demonstrating
special skills, or receiving training, * * *.
The legislative history dealing with this amendment discloses that a
special new nonimmigrant visa was designed to serve solely the purposes
of the Mutual Educational and Cultural Exchange Act of 1961 (H.R.
8666). By administrative arrangement a type (J) visa had been issued
pursuant to authority in section 201 of the Educational Exchange Act.
The main purpose of this new language is to reserve the (F) visa for
students other than exchange students and made the new (J) type
nonimmigrant available solely to nonimmigrants selected under the
exchange program. The placing of exchange aliens in a separate category
(J) would also simplify the administration of the two-year foreign
residence requirement contained in the new subsection (b), which
reenacts and amplifies P.L. 84 555 but contains one important change in
existing law, namely, the requirement of the finding by the Secretary of
State that the 2-years' residence abroad of an exchange alien, if not
occurring in the country from which he came to the United States, was in
accord with the basic purpose of the exchange program. The purpose of
this modification of the existing requirement was to avoid a situation
where an exchange alien trained in the United States prefers to spend
the required two years in a country well supplied with the skills which
he acquired in the United States to the obvious detriment of his own
country or other areas where his skills could be better utilized. /1/
To make available the services of exchangees who possess talents
required by our universities, foundations and other institutions, the
language of the House Bill was modified to permit the waiver of the
foreign residence requirement on the request of an interested United
States Government agency; the language was also modified to permit an
interested United States Government agency to request a waiver in other
special circumstances. Its terms were extended to include those who
acquired exchange visitor status under the Educational Exchange Act of
1948. /2/
While section 242.17(a) of Title 8, Code of Federal Regulations,
gives the special inquiry officer authority to hear applications for
suspension of deportation under section 244(a) or for adjustment of
status under section 245 of the Act, such applications are made subject
to the requirements contained in Parts 244 and 245. The special inquiry
officer has the duty of informing the respondent of his apparent
eligibility to apply for any of the benefits enumerated therein and to
afford him an opportunity to make application therefor during the
hearing. However, nothing in this section gives the special inquiry
officer authority to grant the waiver provided for by section 212(e) of
the Act. The authority to waive, on the basis of personal hardship to
the alien, his citizen or resident alien spouse or child, is
specifically delegated under section 212(e) to the Commissioner of
Immigration and Naturalization who has in turn delegated such authority
to the District Director. The regulations of the Department of Health
Education and Welfare provide in 45 CFR 50.5 that the responsibility in
connection with applications for a waiver based on the personal hardship
provisions of the Department of State regulations, 22 CFR 63.6, are
under the jurisdiction of the Immigration and Naturalization Service and
inquiry should be directed to the appropriate district office of that
Service: the regulation points out the same is true of applications for
extension of visas. The State Department regulations, 22 CFR 63.6(f),
provides that an exchange visitor who wishes to apply for a waiver under
the personal hardship provisions of that section may apply to the
District Director of the Immigration and Naturalization Service having
administrative jurisdiction over his intended place of residence in the
United States.
From the foregoing, it must be concluded that the authority to grant
the waiver contained in section 212(e) of the Act, like the authority to
grant extensions of visas, lies within the jurisdiction of the
Immigration and Naturalization Service and not with the special inquiry
officer. /3/ The Board's jurisdiction as described in 8 CFR 3.1(b)
includes appeals from decisions of the special inquiry officer in
exclusion cases as provided in Part 236 and in deportation proceedings
as provided in Part 242 of the Act, but does not extend to decisions of
the District Director in the granting of the waiver under section 212(
e). /4/ We agree with the conclusion of the special inquiry officer
that he has no jurisdiction to grant the waiver provided by section
212(e) nor to review the denial of such waiver. Accordingly, the
application for adjustment of status under section 245 was properly
denied.
In connection with respondent's application for suspension of
deportation under section 244(a)(5) of the Immigration and Nationality
Act the special inquiry officer concluded that the respondent was not
statutorily eligible under that section because she does not have the
required 10 years' residence. That conclusion is obviously correct.
Even under the provisions for suspension of deportation in section 244(
a) as amended by the Act of October 24, 1962 (76 Stat. 1247) the
respondent would not be eligible because of the limitation contained in
section 244(f) which provides that no provision of the amended section
244 shall be applicable to an alien who was admitted to the United
States pursuant to section 101(a)(15)(J) or has acquired such status
after admission to the United States. The special inquiry officer has
granted the respondent the privilege of voluntary departure which
appears to be the only discretionary relief available to her.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Volume 2, U.S. Code Congressional and Administrative News (87th
Cong. 1st Sess. 1961) 2774.
(2) Idem, 2780.
(3) Matter of Han. Int. Dec. No. 1241 (B.I.A., August 10, 1962).
(4) Cf. Matter of De G -- et al., Int. Dec. No. 1036 (A.G., 1959).
An overt voluntary act manifesting clearly and unambiguously a decison to accept a foreign nationality previously acquired by operation of law, even though such act in and of itself may not constitute a statutory ground of expatriation, results in the loss of United States citizenship under section 2 of the Act of March 2, 1907, and the loss of citizenship dates from the time of the act of acceptance Matter of Di P , Int. Dec. #1215, upheld .
APPLICATION: Admission as United States citizen.
The special inquiry officer ordered the applicant admitted as a
United States citizen and certified the case to the Board for final
decision. We shall reopen proceedings.
Applicant, born in Italy on January 15, 1932, claims to be a United
States citizen through birth to Giuseppe Picone who in 1922 became a
United States citizen by naturalization. The Service contends that
applicant's father lost United States citizenship by later becoming
naturalized in Italy before applicant was born. The Department of State
has ruled that as a matter of law Giuseppe Picone could not have lost
United States citizenship in the manner relied upon by the Service.
Pertinent portions of relevant statutes follows:
That any American citizen shall be deemed to have expatriated
himself when he has been naturalized in any foreign state in
conformity with its laws, or when he has taken an oath of
allegiance to any foreign state. (Section 2, Act of March 2,
1907, 34 Stat. 1228)
There shall be recovery of Italian citizenship by one who
having ceased to be an Italian citizen owing to the acquisition of
foreign citizenship, has been resident in the kingdom for two
years. (Article 9(3), Italian Nationality Law, June 13, 1912,
UNITED NATIONS PUBLICATION, LAWS CONCERNING NATIONALITY, July
1945, 269)
These are the facts of record. The exclusion hearing reveals that
applicant's father was naturalized in the United States on March 16,
1922, that he secured a United States passport on March 27, 1922, that
he went to Italy to marry, that he returned to the United States in
October 1923 (his wife never came), that he next went to Italy on
December 17, 1925 on a United States passport issued on October 20,
1925, and that he remained in Italy until his death in 1958.
An affidavit executed by Giueseppe Picone on February 6, 1953 reveals
that he left behind no property in the United States when he returned to
Italy, but in Italy owned farm land and three houses valued at about
15,000,000 lire, that part of the property was inherited and part
purchased from 1922 to 1947, that property tax was paid in Italy but no
taxes were paid to the United States, that on April 18, 1928, he was
issued an Italian Identity Card No. 2179 by the Commune of Carini, that
the card showed his nationality as Italian, that he is of the belief
that he voted in 1934 and in all the following election held in Italy
from 1946 to 1952 but remembers well only having voted in 1951 and 1952,
that he announced his American citizenship to local authorities, that he
had never renounced his American citizenship, that he did not know that
naturalized citizens were supposed to return to the United States before
October 15, 1946, and that he had not been in contact with the Consulate
at Palermo, Italy since his arrival in Italy. The affidavit shows that
applicant's father stated it was his intention to establish United
States citizenship because his son, the applicant, wished to come to the
United States. This affidavit and another executed the same day reveal
that Giuseppe Picone's return to Italy in 1925 was for the purpose of
taking his father to the United States, because his father had been left
alone after the death of his wife (1920), that two brothers were
residing in the United States, that his father's death in 1941 and the
circumstances which arose subsequently caused his protracted residence
in Italy, and that it was his intention to return to the United States
to reside permanently if he were authorized to do so.
On February 16, 1953, the Vice Consul at Palermo issued a certificate
of expatriation finding the applicant's father had lost United States
citizenship under section 2 of the Act of March 2, 1907 by having been
naturalized as a subject of Italy under article 9(3) of the Italian
Nationality Law of June 13, 1912 and having manifested a voluntary
acceptance of such nationality. This certificate was approved by the
Secretary of State on September 9, 1953.
Applicant's father died in Italy on March 23, 1958. The applicant
requested a review of his case. On February 23, 1961, the American
Consul at Palermo informed the Department of State that a review of
Giuseppe Picone's case resulted in the determination that the
naturalization granted by operation of Italian law may not have
expatriated applicant's father under the provisions of section 2 of the
Act of March 2, 1907 but that he did become expatriated (after
applicant's birth) by voting in elections held in Italy in 1951. The
Department of State concurred in the finding that the applicant's father
had not lost United States citizenship by accepting the Italian
naturalization and had not lost United States citizenship until he had
voted in 1951. The applicant was, therefore issued a United States
passport.
The action of the Department of State in reversing its former finding
that the applicant's father had lost United States nationality by
accepting the Italian naturalization is based on the following
reasoning:
The Department of State, after the most careful consideration
and study in the light of recent important court decisions, had
reversed its long standing policy that expatriation under the
first paragraph of section 2 of the Act of March 2, 1907 may be
based upon the fact that a person has acquired a foreign
nationality solely by operation of law (as, for example, under
section 9(3) of the Italian Nationality Law of June 13, 1912),
followed by overt acts voluntarily performed, which may be
regarded as "acceptance' of the foreign nationality. Underlying
this determination was the Department's relief, particularly in
the light of the Supreme Court decision in the case of Nishikawa
v. Dulles 356 U.S. 129 (1958) that an administrative decision that
a person has lost United States citizenship will be upheld by the
courts only if the decision is based upon an act which must be
both voluntary and specifically made expatriating by statute.
(Ex. 5)
The special inquiry officer, in a most comprehensive opinion, points
out that the Service had the burden of establishing (by evidence that
was clear, convincing, and unequivocal) that applicant's father had
accepted Italian nationality. The special inquiry officer found that
the Service had not borne its burden. The special inquiry officer held
that the prolonged residence in Italy had been partially explained away
by the applicant's father, and that in any event, it did not constitute
an acceptance of Italian nationality. The special inquiry officer held
that the obtaining of an identity card, without eliminating the
possibility that it was procured under duress, necessity, or ignorance,
did not constitute an acceptance; and that the voting concerning which
there is certainty (the voting in 1951 and 1952) is too remote to
establish that in 1927, some 24 years earlier when Italian nationality
had become available, the applicant's father had formed the intention of
accepting Italian nationality. In a letter dated December 20, 1961,
counsel asks that the order of the special inquiry officer be confirmed
and that the position of the State Department be fully considered. At
oral argument the Service representative contended that the applicant
was not a United States citizen at birth because his father had
expatriated himself by, among other things, registering as an Italian
national.
Briefly, the "long standing policy' to which the Department of State
refers, as it related to Italy, took cognizance of the fact that until
July 1943, Italy regarded any naturalized American citizen of Italian
origin who resided in Italy for two years after July 1, 1912 as having
acquired Italian nationality under article 9(3) of the Itialian
Nationality Law of 1912 by no other act than mere residence in Italy for
the period of two years regardless of whether the naturalized American
citizen desired to become an Italian citizen or not. /1/
Nevertheless, the United States did not consider acquisition of
Italian nationality in such a manner as causing loss of American
citizenship under section 2 of the Act of March 2, 1907 unless the
individual manifested a voluntary acceptance of Italian nationality by
declaration, or overt act such as accepting employment by the Italian
Government, accepting an Italian passport or identity card, voting in
Italy, or joining an Italian political party. (HACK-WORTH, DIGEST OF
INTERNATIONAL LAW, Vol. 3, Government Printing Office, 1942, 207-217;
Barsanti v. Acheson, 103 F.Supp. 1011, Mass. (1952), aff'd 200 F.2d 562,
C.A. 1; Rosasco v. Brownell, 163 F.Supp. 45, 55, E.D.N.Y. (1958);
United States v. Cuccaro, 138 F.Supp. 847, E.D.N.Y. (1956); U.S. ex
rel. De Cicco v. Longo, 46 F.Supp. 170, Conn. (1942); Matter of P ,
Int. Dec. No. 1155; Matter of M , 6 I. & N. Dec. 70).
The abandonment of the "long standing policy' by the Department of
State was noted in Matter of P , Int. Dec. No. 1155, but was not
considered because we found there that the Service had failed to bear
its heavy burden of showing that P had voluntarily accepted Italian
naturalization. In Matter of D P , A-12561169, Int. Dec. No. 1215, 4/
26/62, a reevaluation of the problem in light of Nishikawa caused us to
hold that since the burden of proof was upon the Government to prove
expatriation by clear, convincing, and unequivocal evidence, we could no
longer indulge in the fiction that acceptance of Italian naturalization
which arose by operation of law implied that there had been an
acceptance as of the date of the naturalization. We did not discuss the
issue raised here -- the propriety of finding that it was possible to
accept naturalization by an act which was not in itself a ground of
expatriation. In the instant case there is considerable evidence that
the Italian naturalization was voluntarily accepted by the applicant's
father. It becomes necessary, therefore, to decide whether to join the
Department of State in what appears to be its view that as a matter of
law, a person cannot become expatriated under a law which makes him a
foreign national solely by operation of law, although there are overt
acts voluntarily performed which may be regarded as acceptance of the
foreign nationality.
The Department of State relies upon Nishikawa v. Dulles, 356 U.S.
129, as requiring abandonment of the established rule. We must
respectfully dissent from this view. Nishikawa was not concerned with
substantive issues of expatriation but with issues which related "solely
to problems of burden of proof,' (at p. 662). As to the burden of
proof, the court held that "regardless of what conduct is alleged to
result in expatriation, whenever the issue of voluntariness is put in
issue, the Government must in each case prove voluntary conduct by
clear, convincing, and unequivocal evidence'. This is, of course, the
burden which must be met by the Government in the instant case.
However, we do not believe that Nishikawa attempts to be controlling on
what is or is not an act of expatriation.
Nishikawa did not concern itself with section 2 of the Act of March
2, 1907 which is involved here. Nishikawa dealt with expatriation under
section 401(c) of the Nationality Act of 1940 which involved service in
the armed forces of a foreign country. Nishikawa does not state that a
person could not have become naturalized in a foreign country by
voluntarily acquiring a foreign nationality which as far as the United
States is concerned he was free to accept or reject as he pleased.
There is no logical reason why an individual who had been naturalized in
the United States could not voluntarily accept Italian nationality which
was offered to him by Italian law. The only problem we see raised is
one of proof.
The issue here is whether there was a voluntary acceptance of Italian
nationality. Before we decide whether there was such a voluntary
acceptance, we believe further information, if it is available, should
be supplied on the following matters: what is involved in obtaining an
Italian identity card, whether an Italian identity card is available to
one of dual nationality, why it was obtained in the instant case,
whether applicant's father could have continued to live in Italy without
obtaining one, what benefits and what obligations are involved in
obtaining one, whether application had ever been made for documentation
for the emigration of applicant's grandfather, and why, if the
applicant's father returned to Italy in 1925 to bring his father back to
the United States, he did not do so, what military document, employment
card, and party certificates are referred to on page 2 of the
application for registration executed by applicant's father on February
6, 1953 (Ex. 2), whether the applicant's father who is shown as not
having paid taxes to the United States, was liable for the payment of
United States taxes, and whether applicant's father as a United States
national was treated differently for tax purposes by the Italian
Government than he would have been if he had not been a United States
national. Any other pertinent information should, of course, be made a
part of the record.
ORDER: It is ordered that the order of the special inquiry officer
be and the same is hereby withdrawn.
It is further ordered that proceedings be reopened for the reasons
contained in this opinion and for such further action as the special
inquiry officer may deem appropriate.
(1) After July 1943 the Italian Government gave some recognition to
the intention of the naturalized American citizen of Italian origin as
to whether he desired to become an Italian national.
The Commissioner requests that this case be certified to the Attorney
General for review. An issue of fact and an issue of law are involved.
The issue of law is whether United States citizenship is lost under
section 2 of the Act of March 2, 1907, 34 Stat. 1228, by a foreign
naturalization arising solely by operation of law under section 9(3) of
the Italian Nationality Law of June 13, 1912 where the naturalization is
followed by voluntary acts not in themselves made acts of expatriation
by statute but which do show an acceptance of the Italian nationality.
The Service and the Board adhere to the rule that a foreign
naturalization arising by operation of law may be accepted by an act
which is in itself not a ground of expatriation. The Department of
State is of the belief that expatriation cannot occur unless an act is
performed which is expressly made one of expatriation by statute.
The factual question, assuming that the first question is answered in
the affirmative, is whether the applicant has conducted himself in a
manner as to indicate his acceptance of Italian nationality.
The Board has ordered reopening of proceeding for additional evidence
as to the nature of the acts of acceptance and as to other background
matters. The Service however finds it inadvisable to await resolution
of the factual issue. The Service states that it is faced with a
serious, urgent and continuing problem arising out of the differences
between the Service and Board on one hand and the Department of State on
the other which makes it imperative to obtain a prompt ruling on the
legal issue. The Board believes that until the additional information
is obtained, the record will not be in the state necessary for a proper
determination; however, under the regulations it has no alternative to
complying with the Commissioner's request that the case be certified.
ORDER: Under the provisions of 8 CFR 3.1(h)(1)(iii), the case is
referred to the Attorney General for review of the Board's decision.
This case has been certified to me for review by the Board of
Immigration Appeals pursuant to 8 CFR 3.1(h)(1)(iii).
The applicant seeks admission as a United States citizen. His claim
to citizenship is based on the assertion that his father was a United
States citizen at the time of his birth in Italy in 1932, R.S. Section
1993. /1/ The Immigration and Naturalization Service concedes that
applicant's father was naturalized in the United States in 1922, but
contends that he had expatriated himself prior to applicant's birth.
The special inquiry officer held that the Service had not sustained its
burden of establishing that applicant's father had lost his United
States citizenship prior to the applicant's birth and ordered that
applicant be admitted as a United States citizen. The Board of
Immigration Appeals ordered that the proceedings be reopened for the
taking of additional evidence on the question of expatriation.
Following denial of a motion by the Service for reconsideration of the
Board's order, /2/ the Service requested that this case be certified to
me for review limited to the question of the correct interpretation of
the statute which is the basis for the claim of expatriation. There is
no dispute between the Board and the Service on this question. Since,
however, the Department of State has taken a contrary position, the
Service desired that this conflict in administrative interpretations be
resolved prior to the remand of the case to the special inquiry officer.
/3/ Although it is ordinarily the better practice to refer to the
Attorney General only cases in which the Board has reached a final
decision on the merits, I am accepting this case because the legal
question involved is a recurring one and its resolution does not hinge
on the particular facts shown by the record.
The record shows, and I assume for the purpose of this opinion, the
following facts:
Applicant's father, a native of Italy, was naturalized in the United
States in 1922 and returned to Italy that same year. He returned to the
United States in 1923, returned to Italy in December 1925 and remained
there until his death in 1958. The applicant was born in Italy on
January 15, 1932, and lived there until he applied for admission to the
United States in June 1961.
Whether or not applicant is a United States citizen depends on
whether his father was a United States citizen on applicant's date of
birth. R.S. Section 1993, supra. The Service contends that the father
had expatriated himself prior to January 15, 1932, under section 2 of
the Act of March 2, 1907, 34 Stat. 1228, by acquiring and voluntarily
accepting Italian citizenship. The relevant portion of section 2 reads
as follows:
That any American citizen shall be deemed to have expatriated
himself when he has been maturalized in any foreign state in
conformity with its laws, or when he had taken an oath of
allegiance to any foreign state. /4/
Article 9 of the Italian Nationality Law of June 13, 1912, provides:
He who has lost citizenship * * * may reacquire it * * * (3)
after two years of residence in the Kingdom, if the loss of
citizenship has been due to the acquisition of foreign
citizenship.
It is conceded in this proceeding that article 9 had the effect of
automatically conferring Italian citizenship upon applicant's father
after he had completed 2 years' residence in Italy. See 3 Hackworth,
Digest of International Law (1942) 212.
Such a "naturalization' is within the literal coverage of section 2
of the Act of March 2, 1907, Matter of M , 6 I. & N. Dec. 70, 71 (1953).
It has long been held, however, that section 2 applies only to
voluntary expatriation, Perkins v. Elg, 307 U.S. 325, 343 (1939), and
that where a citizen of the United States acquires a foreign nationality
through operation of law and not upon his own application, his United
States citizenship is not lost unless he indicates acceptance of the
foreign nationality by some voluntary affirmative act, Matter of V , 3
I. & N. Dec. 671 (1949); Matter of R , 6 I. & N. Dec. 15 (1953);
Barsanti v. Acheson, 103 F.Supp. 1011 (D. Mass. 1952) aff'd per curiam
200 F.2d 562 (C.A. 1, 1953); 3 Hackworth's Digest, 211-215. Such acts
have been held to include accepting a passport or identity card
describing the individual as a national of the foreign country, voting
in an election of such country, or joining an organization open only to
its nationals, Matter of V , supra, at 674; 3 Hackworth's Digest, at
213. Most of the cases in which these principles were applied have
involved article 9 of the Italian Nationality Law. Since the voluntary
act showing acceptance of the foreign nationality was regarded merely as
evidence of the intent existing at the time such nationality was
acquired, it was held that once the act was shown, the expatriation
would relate back to the date when the foreign nationality was acquired
by operation of law, Matter of V , supra, at 674; Matter of M , supra.
However, the Board of Immigration Appeals has recently reexamined
this rule of retroactivity and has concluded that in the light of the
Supreme Court's statement in Nishikawa v. v. Dulles, 356 U.S. 129, 133
(1958), to the effect that the Government must show expatriation by
clear, convincing and unequivocal evidence, there is "no longer any
justification for indulging in the fiction that the act showing
acceptance of Italian nationality invariably also shows a voluntary
acceptance of Italian nationality as of the first possible moment such
acceptance could be made,' Matter of DiP , Int. Dec. No. 1215 (1962).
Consequently, it is now the Board's position that expatriation dates
from the time of the act indicating acceptance of the foreign
nationality and not from the time when that nationality was acquired by
operation of law. Applying this rule in the instant case, the Board
found the record incomplete and remanded the case to the special inquiry
officer to take further evidence as to the nature of the acts relied on
by the Service to manifest voluntary acceptance of Italian nationality.
The applicant, on the other hand, urges me to adopt the position
recently taken by the Department of State in its administration of the
nationality laws. This position is stated by the Department as follows:
The Department of State, after the most consideration and study
in the light of recent important court decisions, has reversed its
long standing policy that expatriation under the first paragraph
of section 2 of the Act of March 2, 1907 may be based upon the
fact that a person has acquired a foreign nationality solely by
operation of law (as, for example, under section 9(3) of the
Italian Nationality Law of June 13, 1912), followed by overt acts
voluntarily performed, which may be regarded as "acceptance' of
the foreign nationality. Underlying this determination was the
Department's belief, particularly in the light of the Supreme
Court decision in case of Nishikawa v. Dulles 356 U.S. 129 (1958)
, that an administrative decision that a person has lost United
States citizenship will be upheld by the courts only if the
decision is based upon an act which must be both voluntary and
specifically made expatriating by statute.
The question before me on this review is whether to adhere to the
long-standing administrative view that voluntary acceptance of a
naturalization obtained by operation of law results in expatriation
under the Act of 1907 or to adopt the conclusion of the Department of
State that in such circumstances the voluntary act cannot result in
expatriation unless the act itself is specifically made an expatriating
act by the statute. /5/ In a memorandum submitted in support of its
position, the Department argues that Nishikawa establishes that
expatriation must be shown by clear, convincing and unequivocal
evidence, and that where the act relied on to establish expatriation is
not, standing alone, an expatriating act under the statute, then, as a
matter of law, it cannot be so clear, convincing and unequivocal as to
justify a finding of intent to renounce United States citizenship.
I cannot accept the view that the substantive law of expatriation is
affected by the decision in Nishikawa v. Dulles. The opinion in that
case states that the Government has the burden of proving "an act that
shows expatriation by clear, convincing and unequivocal evidence.' 356
U.S., at 133. But the question of the quantum of proof necessary to
establish expatriation is quite separate from the substantive question
of what voluntary conduct, assuming it is proved, results in
expatriation under section 2. In the Nishikawa case the "act' of
expatriation upon which the Government relied was service in a foreign
army; here the "act' is naturalization in a foreign state. There, as
here, an issue was raised as to the voluntariness of the act upon which
reliance was placed. Although the Court in Nishikawa held that the
burden of proof on this issue must be borne by the Government, and that
the standard of proof to be met was "clear, convincing and unequivocal
evidence,' /6/ it did not by any means hold, as the Department of State
in effect argues, that the evidence adduced on the issue of
voluntariness could relate only to incidents that would independently
furnish grounds for expatriation. The opinion clearly contemplates that
the voluntariness of Nishikawa's service in the Japanese armed forces
could be shown by evidence of any acts or declarations having the
requisite probative value, whether independently expatriating or not.
Nevertheless, the position taken by the Department of State, as well
as the Board's own modification of the voluntary acceptance rule in
Matter of DiP , supra, suggests the desirability of a re-examination of
the rule obtaining in cases of naturalization by operation of law.
The language of section 2 is that an American citizen shall be deemed
to have expatriated himself "when he has been naturalized in any foreign
state in conformity with its laws * * *.' There is no exception in the
statute for involuntary naturalization, but such an exception has been
read into the statute, Perkins v. Elg, supra, at 343, and would today
appear to be a constitutional requirement, Perez v. Brownell, 356 U.S.
44, 61 (1958). Naturalization by operation of law has long been
considered to be within the exception for involuntary naturalization,
although as a matter of strict logic a citizen whose voluntary acts,
such as foreign residence, give rise to a foreign naturalization could
be held to the legal consequences of his actions regardless of whether
he knew those consequences would ensue. See Mackenzie v. Hare, 239 U.S.
299 (1915); Savorgnan v. United States, 338 U.S. 491 (1950). /7/
However, the term "naturalization' ordinarily connotes a deliberate and
purposeful acquisition of a changed citizenship status. For that
reason, it is unlikely that Congress intended to expatriate by section 2
a citizen who, unaware of the consequences, performed a voluntary act
which brought about a foreign naturalization. The section should not be
interpreted in such a way as to make it a trap for the unwary. /8/
It does not follow, however, that because the statute does not apply
to every naturalization by operation of law, it should apply to none.
Every naturalization occurs by operation of law in the sense that the
law of the foreign country operates on a given set of facts, which may
consist of residence in that country for a certain period of time, an
application for naturalization, an oath of allegience, or some other act
or event. When we distinguish for purposes of section 2 between a
voluntary naturalization and one which is at least prima facie
involuntary because it arose by operation of law, we import into section
2 a requirement that for expatriation to result there must be an intent
on the part of the citizen to acquire the foreign nationality, and where
the acts which give rise to the naturalization, though voluntary in
themselves, are not such acts as ordinarily give rise to naturalization,
we presume that they have been performed without this required intent.
/9/ Thus, in cases involving article 9 of the Italian Nationality Law,
we regard a mere two years' residence in the country of the citizen's
former nationality as insufficient evidence of intent to reacquire that
nationality, and treat such a naturalization by operation of law as
involuntary.
But the principle which justifies the exception for involuntary
naturalization also defines its limits. Where intent to acquire the
foreign nationality is present at the time of naturalization or intent
to accept the nationality arises thereafter and is manifested by
affirmative and unambiguous acts, there would appear to be no reason in
law or policy to bring the case within the exception. It seems clear,
for example, that where it can be shown by contemporaneous proof that
the United States citizen intended by his two-year residence to
reacquire his Italian citizenship, he should be held to have become
"naturalized' within the meaning of section 2, and hence to have
expatriated himself, notwithstanding that the naturalization was
accomplished "by operation of law' and without any formal application
for a new citizenship status. Such cases are, of course, seldom
encountered. In the usual case the only evidence of the citizen's
intent to reacquire Italian nationality is provided by his actions
subsequent to that naturalization. So arose the doctrine of voluntary
acceptance. The theory was that the naturalization by operation of law
created an ambiguity as to the citizen's intention, which could be
resolved by subsequent evidence of his desire to accept Italian
nationality. When the citizen manifested his acceptance of Italian
nationality by an overt voluntary act, this act was taken as evidence of
the citizen's intent, at the time when he took up residence in Italy, to
reacquire Italian nationality, and his expatriation was held to relate
back to the date when his naturalization took effect under the law of
Italy. Matter of V , supra, at 674. Because of the obvious
artificiality of a rule which related the finding of intent to acquire
Italian nationality back to an arbitrary point of time, often in the
remote past, the Board in Matter of DiP , supra, ruled correctly that
the act indicating acceptance of Italian nationality was probative only
of intent at the time the act was performed, and that therefore
expatriation should no longer be held to relate back but should date
from the act of acceptance.
The decision in Matter of DiP , however, forces recognition that the
requirement of an overt voluntary act of acceptance is not, and probably
never was, a rule of evidence but a rule of substance reflecting the
proper interpretation of the term "naturalization' as used in section 2.
The significance of the act of acceptance does not lie primarily in its
value as proof of previous intent, for such value is often doubtful, but
rather in its value as a manifestation of present intent. The act of
acceptance is the final constituent element of a more complex act,
voluntary naturalization, which entails the legal consequence of loss of
United States citizenship. Since, however, it is an essential element
of the ultimate fact upon which expatriation depends under the statute
it cannot be equivocal but must be an act which clearly and
unambiguously imports a purposeful assumption of nationality.
It has been suggested that a "naturalization' involuntary when it
took place cannot be converted into a voluntary naturalization by an act
occurring years afterward, and that since concededly section 2 of the
Act of 1907 applies only to voluntary naturalizations, the Board's rule
is an attempt to amend section 2 to create an additional act of
expatriation, i.e., acceptance of a previously involuntary
naturalization. This argument seems to me a mere confusion of terms.
As already noted, the term "naturalization' as used in the statute,
because of constitutional and other considerations, must be construed to
mean a voluntary and purposeful aquisition of foreign nationality.
Although the involuntary acquisition of foreign nationality or the
acquisition of such nationality by operation of law certainly
constitutes naturalization in one sense of the term, naturalization in
the sense intended by the statute does not occur until the individual
has appropriately manifested an intent to accept the foreign
nationality. Acceptance thus does not serve to give legal effect to a
naturalization which has already occured; it is itself an element of
the naturalization made expatriating by the statute.
The construction of the statute which is proposed by the Department
of State would lead to anomalous results. It would require a holding
that a United States citizen naturalized in a foreign country by
operation of law who may have accepted all the benefits of that status,
who may even have renounced United States citizenship, would
nevertheless not have lost his United States citizenship unless he had
taken an oath of allegiance to the foreign state, the only other act
made expatriating be section 2. I cannot doubt that such a result would
be contrary to the intent of the Congress that enacted the Act of 1907,
and that it would also be contrary to this Nation's often expressed
recognition of the inherent right of expatriation. 15 Stat. 223-224;
Savorgnan v. United States, supra, at 497-98.
Because litigation involving nationality usually arises in the
context of an assertion of United States citizenship by an individual
and the claim of expatriation by the Government (although compare
Kawakita v. United States, 343 U.S. 717 (1952)), it is sometimes
overlooked that expatriation found its place in the law initially not as
a weapon of the Government but as a right of the individual. It is
true, of course, that "rights of citizenship are not to be destroyed by
an ambiguity,' Perkins v. Elg, supra, at 337, but when a United States
citizen becomes naturalized by operation of law in a foreign country and
by his subsequent course of conduct clearly manifests an intention to
accept the rights and obligations that go with his new nationality, I do
not believe that it does violence to the language of the Act of 1907 to
hold that he has expatriated himself, notwithstanding that the tender of
a new status under foreign law and its acceptance by the individual do
not occur contemporaneously. I believe it is more realistic and more
consistent with the policy of our nationality legislation to regard the
naturalization by operation of law as in effect a continuing offer, the
acceptance of which completes the act of naturalization in a foreign
state made expatriating by section 2. /10/ Such doubts as might be
raised by the contrary argument are set at rest by the long history of
administrative and judicial application of the voluntary acceptance
rule, Barsanti v. Acheson, supra; 3 Hackworth's Digest, 211-215.
As has been stated, my purpose in reviewing this case in its present
posture is to resolve the conflict in interpretation between the
Department of State and the Board of Immigration Appeals over continued
adherence to the voluntary acceptance rule. I hold that an overt
voluntary act manifesting clearly and unambiguously a decision to accept
a foreign nationality previously acquired by operation of law results in
the loss of United States citizenship under section 2 of the Act of
1907. What acts constitute such an acceptance and what factual showing
is required to establish their character I find it unnecessary to
consider at this time.
The case is remanded to the Board of Immigration Appeals for
disposition in accordance with the views set forth herein.
(1) R.S. Section 1993, in force in 1932, conferred United States
citizenship on children born outside the United States whose fathers at
the time of their birth were citizens of the United States and had
resided therein.
(2) The motion for reconsideration was directed to the question of
the burden of proof on the issue of expatriation. This question is not
before me on this review.
(3) In such cases the rulings of the Attorney General are
controlling. Immigration and Nationality Act, Section 103(a), 8 U.S.C.
1103(a).
(4) Section 2 further provides:
When any naturalized citizen shall have resided for two years in the
foreign state from which he came, or for five years in any other foreign
state it shall be presumed that he has ceased to be an American citizen,
and the place of his general abode shall be deemed his place of
residence during said years: Provided, however, That such presumption
may be overcome on the presentation of satisfactory evidence to a
dipolmatic or consular officer of the United States, under such rules
and regulations as the Department of State may prescribe: And provided
also, That no American citizen shall be allowed to expatriate himself
when this country is at war.
However, this presumption of loss of citizenship arising from
prolonged residence abroad was interpreted by Attorney General
Wickersham, 28 Ops.A.G. 504 (1910), to operate merely to relieve the
Government of the obligation of protecting citizens residing abroad and
to have no effect on the status of citizenship itself. This view has
been followed in Camardo v. Tillinghast, 29 F.2d 527 (C.A. 1, 1928); In
re Alfonso, 114 F.Supp. 280 (D.N.J. 1953); Garcia Laranjo v. Brownell,
126 F.Supp. 370 (N.D. Cal. 1954). While judicial authority to the
contrary is not lacking, Zimmer v. Acheson, 191 F.2d 209 (C.A. 10,
1951); Rosasco v. Brownell, 163 F.Supp. 45, 55-57 (E.D. N.Y. 1958), I
find the opinion of Attorney General Wickersham rendered a relatively
short time after the enactment of the statute, the more persuasive, and
I adhere to it.
Section 2 of the Act of 1907 was repealed prospectively by the
Nationality Act of 1940, 54 Stat. 1137, 1172, and therefore affects only
cases involving acts that occurred during the period 1907 to 1941.
(5) Thus the Department of State would attach no legal significance
to the naturalization by operation of law, and expatriation, if
established, would be grounded entirely on the subsequent expatriating
act.
(6) Following the decision in Nishikawa v. Dulles, Congress enacted
section 19 of Public Law 87-301, 75 Stat. 650, 656, which added to
section 349 of the Immigration and Nationality Act, 8 U.S.C. 1481, a new
subsection (c) providing that when loss of United States nationality is
put in issue in an action or proceeding commenced on or after September
26, 1961, the fact that such a loss occurred may be established by "a
preponderance of the evidence.' This enactment has no application to the
present proceeding, which was instituted before September 26, 1961.
(7) Perkins v. Elg, supra, is not authority to the contrary. In that
case the citizen was a minor at the time of her foreign naturalization
and therefore was not legally responsible for the acts giving rise to
the naturalization.
(8) The Department of State points to the following passage in the
Congressional debate on section 2 as evidence that the section was
intended to have no application to naturalization by operation of law:
Cong. Lacey: "* * * If a man buys a piece of land or a piece
of real estate in Mexico it is necessary for him to say in the
deed that he does not desire to be a Mexican citizen. The mere
fact of recording the deed otherwise makes him a citizen of
Mexico. I would like to ask my friend how far we would recognize
that peculiar state of the Mexican law?'
Cong. Perkins: "It does not so far. * * *' 41 Cong. Rec.
1467.
However, this colloquy furnishes little instruction on the question
before me, because neither the position of the Department of State nor
that of the Service and the Board goes "so far.'
(9) This principle is not in conflict with Savorgnan v. United
States, 338 U.S. 491, 499-500 (1950), where it was held that an American
who had applied for and accepted Italian citizenship expatriated herself
notwithstanding that she did not intend to give up her American
citizenship. The intent required by section 2 is not an intent to
renounce United States citizenship but an intent to become naturalized
in a foreign state.
(10) This conclusion makes it unnecessary to consider whether an
expatriation may arise in such a situation otherwise than under the
provisions of the Act of 1907. See 39 Ops.A.G. 411, 412 (1940); United
States ex rel. Rojak v. Marshall, 34 F.2d 219, 220 (W.D. Pa. 1929);
United States ex rel. DeCicco v. Longo, 46 F.Supp. 170, 174 (D. Conn.
1942); contra, Leong Kwai Yin v. United States, 31 F.2d 738, 740 (C.A.
9, 1929).
Recourse may not be had to the remarks of the State's Attorney to the court at the time of sentencing in order to determine whether or not the crime involves moral turpitude where respondent was convicted under a broad, divisible statute which enumerates several acts, the commission of which may or may not involve moral turpitude, and the record of conviction merely refers to the section of law involved.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) -- Crime
involving moral turpitude committed within five years -- Sentenced to
confinement a year or more -- Encouraging abortion (Conn. 1959).
The case comes forward on appeal by the trial attorney from the order
of the special inquiry officer dated September 26, 1962 ordering that
the proceedings be terminated.
The record relates to a native and citizen of Italy, 27 years of old,
male, who last entered the United States at the port of New York on
December 1, 1955 when he was admitted for permanent residence. On April
14, 1959 he was convicted in the Superior Court, New Haven, Connecticut
of the offense of Encouraging the Commission of Abortion in violation of
section 53-31 of the General Statutes of Connecticut and was sentenced
to confinement in jail for a period of one year, execution of sentence
suspended, and placed on probation for 2 years.
The record of conviction discloses that the respondent was first
charged with violation of section 53-29 of the General Statutes of
Connecticut, "Attempt to Procure Miscarriage'. He entered a plea of not
guilty to that charge. Thereafter, the State's Attorney, with consent
of the court, filed a substituted information charging the respondent
with violation of section 53-31 of the General Statutes of Connecticut,
"Encouraging Abortion'. The substituted information merely states that
on February 21, 1959 the respondent and another person, Carmen Coscia,
did violate section 53-31 of the General Statutes. There is no further
description or specification of the acts committed. The respondent
pleaded guilty to the substituted information on April 14, 1959.
The section of law under which the respondent was convicted, section
53-31 of the General Statutes of Connecticut, is entitled "Encouraging
the Commission of Abortion' and provides:
Any person who, by publication, lecture or otherwise or by
advertisement or by sale or circulation of any publication,
encourages or prompts to the commission of the offenses described
in sections 53-29 Attempt to Procure Miscarriage or 53-30 Abortion
or Miscarriage who sells or advertises medicines or instruments or
other devices for the commission of any of said offenses, except
to a licensed physician or to a hospital approved by the State
Department of Health, or who advertises any so-called monthly
regulator for women, shall be fined not more than $500 or
imprisoned for not more than one year or both.
It is noted that the section of law of which the respondent was
convicted is a broad, divisible statute which enumerates several acts,
the commission of which may or may not involve moral turpitude. The
record of conviction, which includes the charge (information or
indictment), plea, verdict and sentence, does not throw any light upon
the nature of the crime committed inasmuch as the substituted
information merely charged the commission of the crime by reference to
the section of the law involved. The trial attorney urges that recourse
may be had to the remarks of the State's Attorney to the court at the
time of sentencing but we concur with the special inquiry officer that
the established authority is to the contrary. /1/
We do not believe that the case of Marinelli v. Ryan /2/ assists the
Service. In that case, while the record before the criminal court did
not contain a copy of the "information', the court remarked that the
substance of the information appeared in the judgment of that court and
from the counts specified in the judgment the court was able to
determine that the crime involved moral turpitude. The appellate court
found it unnecessary to reconsider what it had laid down in United
States ex rel. Zaffarano v. Corsi, 63 F.2d 757; i.e., that in reviewing
an order of deportation, the court may not look beyond the indictment,
the plea, the verdict and the sentence and, therefore, the question did
not arise as to whether the evidence before the court that sentenced the
alien might be examined to ascertain whether the sentence brought him
within the deportation statute.
The special inquiry officer has noted that in the case of the
co-defendant of this respondent, who was convicted of the same offense,
the proceedings were terminated upon a finding that upon the record the
Service had failed to bear its burden of establishing that the
respondent was deportable by evidence which was reasonable, substantial
and probative. /3/ We concur with the conclusion of the special inquiry
officer in the instant case that from the record of conviction it is not
possible to establish that the crime of which respondent was convicted
necessarily involves moral turpitude. The special inquiry officer
properly terminated the proceedings. The appeal of the trial attorney
will be dismissed.
ORDER: It is ordered that the appeal by the trial attorney from the
special inquiry officer's decision of September 26, 1962 terminating the
proceedings be and the same is hereby dismissed.
(1) Mylius v. Uhl, 210 Fed. 860 (2d Cir. 1914); United States ex
rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931); United States ex
rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir., 1933).
(2) 285 F.2d 474 (2d Cir., 1961).
(3) Matter of C , A-10029078 (May 1, 1962).
Where respondent, who entered the United States as a nonquota immigrant on the basis of a fradulent marriage, is deportable under section 241(a)(1) of the Immigration and Nationality Act because excludable at time of entry under section 211(a) in that she was not a nonquota immigrant as specified in her visa, she is ineligible for the benefits of section 241(f) since she was not "otherwise admissible' at entry.
CHARGE:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry -- not nonquota immigrant.
This is an appeal from the order of the special inquiry officer
finding respondent deportable upon the ground stated above, and granting
voluntary departure.
The appeal does not appear to be timely filed (8 CFR secs. 3.3,
242.21 (Supp. 1961), Matter of Z M , 3 I. & N. Dec. 167, Matter of SS.
"Dirphys', 3 I. & N. Dec. 223); however, in view of the importance of
the issue involving section 241(f) of the Act (8 U.S.C.A. 1251(f) (Supp.
1961)), we shall take jurisdiction by certification (8 CFR 3.1( c)
(Supp. 1961)).
In the notice of appeal, issue is taken with the finding of
deportability, and with the denial of an application for creation of the
status of an alien lawfully admitted for permanent residence under
section 244(a) of the Immigration and Nationality Act. However, we find
no application for the relief. The special inquiry officer neither
mentioned nor ruled upon such an application, and counsel did not refer
to it in his brief or oral argument; we shall, therefore, address
ourselves to the question of deportability.
The issues are: (1) whether respondent who entered as a nonquota
immigrant is deportable because she was not entitled to such status, (2)
if deportable, whether respondent comes within a provision of law which
removes certain aliens who obtained visas by fraud from liability to
deportation. As to the first question we find in the affirmative, and
as to the second, in the negative.
Respondent, a 34-year-old female, a native and citizen of Jamaica,
entered the United States upon surrender of a nonquota immigrant visa
issued to her as the wife of Joseph Slade, a United States citizen. The
Service charges that the marriage to Slade was a sham one, that it did
not create the relation of husband and wife for immigration purposes,
and that the respondent therefore was not entitled to a nonquota status
as the wife of a United States citizen.
Respondent refused to testify at the deportation hearing concerning
her marriage, but the record contains sworn statements made by her on
this subject to a Service investigator on two occasions (Ex. 2,
statement of April 30, 1959; Ex. 3, statement of October 18, 1961).
These statements reveal that after respondent entered the United States
as a visitor, she paid Dudley Goulbourne and others the sum of $400 to
arrange a marriage between herself and a United States citizen. On
March 12, 1956, in accordance with the arrangements, Goulbourne
introduced the respondent to Joseph Slade, a person who had agreed to
marry respondent for a fee. On this same day, the parties securd a
marriage license and were married. (The marriage certificate was
postdated to March 14, 1956 to conceal the fact that there had been a
violation of a state law which required the passage of 24 hours between
the issuance of the license and the performance of the marriage.) A few
hours after the marriage was performed, respondent and her husband
parted and went separate ways. No attempt was made to consummate the
marriage. The respondent stated the marriage had been entered into with
the mutual understanding that it would not be consummated, that there
would be no marital responsibilities, that the parties would not live
together, and that it would be terminated by divorce after the
respondent secured a visa and became a United States citizen (probably
within a 3-year period after the marriage), that the marriage was a
"paper' one, and that it had been entered into solely to enable
respondent to get a nonquota visa as the wife of a United States
citizen.
A marriage of the nature described -- a marriage entered into by both
parties without a bona fide intention of residing together as husband
and wife and made merely for the purpose of obtaining benefits under the
immigration laws, is not a valid marriage for immigration purposes
(Matter of M , 8 I. & N. Dec. 217). For immigration purposes,
therefore, the respondent was not married to a United States citizen at
the time she applied for the visa; she was not entitled to a nonquota
visa, and she is clearly deportable on the charge that she was not a
nonquota immigrant at the time of entry. The charge in the order to
show cause is sustained.
We come now to the question as to whether respondent is removed from
liability to deportation by section 241(f) of the Act (8 U.S.C. 1251(f)
(Supp. 1961)) /1/ which provides in pertinent part that the requirement
for the deportation of an alien who procured a visa by fraud "shall not
apply to an alien otherwise admissible at the time of entry' who is the
parent of a United States citizen (respondent is the mother of a child
born out of wedlock in the United States). Counsel contends that, since
it has been found that respondent entered into a fraudulent marriage
which became the basis for the issuance of the nonquota visa, section
241(f) of the Act applies and prevents the use of the fraud and the
obtaining of the nonquota visa as grounds of deportation. /2/ The
special inquiry officer, pointing out respondent's deportation was being
sought not on a fraud charge but on a documentary ground, assumed for
the purpose of discussion, that respondent could have been found
deportable under section 212(a)(19) of the Act because of her fraudulent
misrepresentations to the consul when she obtained her visa; he
concluded, nevertheless, that respondent did not come within section
241(f) of the Act because being deportable on a documentary ground she
was not "otherwise admissible' than by reason of section 212(a)(19) of
the Act.
Counsel's contentions are made against the fact that legislation
similar in essence to that found in section 241(f) of the Act, was
construed as authorizing waiver of only two grounds of deportation -- a
fraud ground under section 212(a)(19) of the Act, and the ground that a
person was not of the nationality shown in his visa (section 211(a) of
the Act, supra, note 2). The legislation referred to, the predecessor
of section 241(f) of the Act, is section 7 of Public Law 85-316, 85th
Cong., S. 2792, September 11, 1957 which reads as follows:
Sec. 7. The provisions of section 241 of the Immigration and
Nationality Act relating to the deportation of aliens within the
United States on the ground that they were excludable at the time
of entry as (1) aliens who have sought to procure, or have
procured visas or other documentation, or entry into the United
States by fraud or misrepresentation, or (2) aliens who were not
of the nationality specified in their visas, shall not apply to an
alien otherwise admissible at the time of entry who (A) is the
spouse, parent, or a child of a United States citizen or of an
alien lawfully admitted for permanent residence; or (B) was
admitted to the United States between December 22, 1945, and
November 1, 1954, both dates inclusive, and misrepresented his
nationality, place of birth, identity, or residence in applying
for a visa: Provided, That such alien described in clause (B)
shall establish to the satisfaction of the Attorney General that
the misrepresentation was predicated upon the alien's fear of
persecution because of race, religion, or political opinion, if
repatriated to his former home or residence, and was not committed
for the purpose of evading the quota restrictions of the
immigration laws or an investigation of the alien at the place of
his former home, or residence, or elsewhere. After the effective
date of this Act, any alien who is the spouse, parent, or child of
a United States citizen or of an alien lawfully admitted for
permanent residence and who is excludable because (1) he seeks,
has sought to procure, or has procured, a visa or other
documentation, or entry into the United States, by fraud or
misrepresentation, or (2) he admits the commission of perjury in
connection therewith, shall hereafter be granted a visa and
admitted to the United States for permanent residence, if
otherwise admissible, if the Attorney General in his discretion
has consented to the alien's applying or reapplying for a visa and
for admission to the United States.
As we have previously stated, the section was held to excuse from
liability to deportation, a person who had made a material
misrepresentation and a person who had been charged to the wrong quota.
We held the law was not intended to cover any other ground of
inadmissibility (Matter of D'O , 8 I. & N. Dec. 215, Matter of S , 7 I.
& N. Dec. 715; see Langhammer v. Hamilton, 194 F.Supp. 854, 857, D.
Mass. (1961), aff'd 295 F.2d 642, 648, 1st Cir. (1961), Buffalino v.
Holland, 277 F.2d 270, 3rd Cir. (1960), cert. den. 364 U.S. 863). The
wording of section 7 would hardly permit another interpretation. /3/
The fact that two grounds of inadmissibility were specifically mentioned
in section 7 would, on well known legal principles, rule out grounds not
mentioned.
Moreover, to extend the section to cover any ground of
inadmissibility not specifically mentioned by Congress would make it
impossible to withhold its thrust from any ground of inadmissibility,
whether documentary criminal or subversive, which had been the subject
of a misrepresentation, for there is no logical basis on which to
differentiate grounds of deportation which have not been specifically
mentioned. Bearing in mind that an alien receives the waiver not as a
matter of discretion, but of right it becomes most unlikely that
Congress could have intended a waiver of any but the two grounds
specifically mentioned. /4/
Congressional comment reveals that the provisions of section 7 of
Public Law 85-316 were incorporated in the Immigration and Nationality
Act "for the purpose of codification' and to "codify existing law
applicable to the granting of waivers of certain excluding provisions of
the Immigration and Nationality Act and to consolidate with the basic
statute the matter now contained in separate enactments, to wit, * * *
section 7 of the act of September 11, 1957' (1961 U.S. Code Cong. & Ad.
News, 87th Cong., 1st Sess. 2950, 2981). The Congressional comment
continues:
It is not proposed to incorporate into the basic statute a
provision contained in section 7 of the act of September 11, 1957,
relating to deportation of certain aliens within the United States
where deportation was predicated on certain misrepresentations
made by a specific category of immigrants, namely, displaced
persons and refugees who entered the United States not later than
November 1, 1954. This special relief provision of the 1957 act
has served its humanitarian purpose and its continuation and
inclusion into permanent law appears unnecessary inasmuch as
according to available information persons eligible to be granted
such relief have already obtained the envisaged benefit. (1961
U.S. Code Cong. & Ad. News, 87th Cong., 1st Sess. 2981).
In other words, the codification withdrew relief from aliens who did
not have the specified relations in the United States but the
codification purported to make no other change. Since section 241(f) of
the Act is termed a codification, we see no reason for extending the
scope of the section. This is especially so since published
administrative and judicial interpretation of section 7 of Public Laws
85-316 existed before the codification was made. /5/
Another reason for the relief that Congress intended no change to be
made in the Board's interpretation that only two grounds were waived is
found in section 10 of Public Law 87 310 amending section 205(c) of the
Act (8 U.S.C. 1155(c) (Supp. 1961)) in which Congress forbade the
issuance of a nonquota visa to an alien who after a sham marriage had
entered into a valid marriage to a United States citizen. This was done
to "counteract the increasing number of fraudulent acquisitions of
nonquota status through sham marriages.' (1961 U.S. Code Cong. & Ad.
News, 87th Cong., 1st Sess. 2980). If one going through a sham marriage
achieved a nonquota status by the sham marriage, there would appear to
be only unusual situations which would require subsequent application
for a nonquota visa and it is unlikely that Congress would enact a law
to deal with such rare cases. Moreover, we can see no reason why by
section 241(f) of the Act Congress would have intended to give permanent
residence to an alien who had achieved nonquota status fraudulently by
means of a sham marriage, if at the same time Congress would not give
permanent residence to one in this category who had subsequently
lawfully married a United States citizen.
Does our conclusion make section 241(f) of the Act meaningless as
counsel contends? We think not. A person deportable as having obtained
a visa by fraud is barred from the United States. In the absence of
legislation such as that contained in section 241(f) of the Act there
could be no waiver of this perpetual bar to the acquisition of lawful
permanent residence in the United States even though ties with United
States citizens or legally resident aliens existed. Section 241(f) of
the Act is also effective to require termination of deportation
proceedings where an alien willfully misrepresented a matter which did
not make her inadmissible but which was nevertheless material; i.e., a
misrepresentation concerning name, existence of a conviction of a crime
which did not involve moral turpitude, etc. (see, Matter of S and B C ,
Int. Dec. 1168).
Matter of G , 8 I. & N. Dec. 355, cited by counsel as authority for
granting relief to respondent supports the Board's position. In the
case cited, respondent had obtained a nonquota immigrant visa by
alleging he was the husband of an American citizen; in fact he was not.
He was found deportable on the same section under which respondent's
deportation is sought; he was required to depart from the United
States; deportation proceedings were not terminated.
Matter of Y , 8 I. & N. Dec. 143, is cited counsel. We fail to see
its applicability. We stated there that a qualitative ground of
inadmissibility arising out of the commission of criminal or subversive
acts is not waived under section 7 of the Act of September 11, 1957 and
that the lack of documents which would have otherwise made the alien
inadmissible to the United States could be waived under section 211(b)
of the Act which authorizes the admission without documents of an alien
lawfully admitted for permanent residence who departed from the United
States temporarily. Such waiver would not be applicable to the present
case. Respondent would therefore, remain deportable on documentary
grounds as well as because of the fraud.
Matter of T , 8 I. & N. Dec. 493, cited by counsel is not apposite.
It involves section 241(c) of the Act (8 U.S.C. 1251(c)) which is not
before us. We held that the failure of the service to sustain a fraud
charge based on 241(c) of the Act precludes the sustaining of a
documentary charge under 241(a) of the Act. In the instant case, it is
clear that the fraud charge based upon the misrepresentation as to
marital status and destination, before the consul, and the nonquota
charge are not dependent upon each other. Whether or not a fraud charge
is sustained, the respondent was not validly married to a United States
citizen and was not entitled to a nonquota status.
Since the respondent attempts to secure a waiver of grounds other
than that she procured a visa by fraud or that she was not of the
nationality specified in the visa, and since she was also inadmissible
for an additional ground -- the fact that she was not a nonquota
immigrant as her visa showed her to be, we hold she is ineligible for
relief under section 241(f) of the Act. Respondent was no more
admissible at time of entry than was an alien who concealed the fact
that he had been a member of the Communist Party.
Counsel is of the belief that failure of the Government to lodge a
charge accusing the respondent of having obtained a visa by fraud is
being used to prevent the respondent from taking advantage of the
benefits of section 241(f) of the Act. Obviously this is not so. Even
if the respondent were deportable as having obtained a visa by fraud, we
do not believe she would be entitled to the benefits of section 241( f)
of the Act.
We need add nothing to the special inquiry officer's discussion of
counsel's contentions concerning the use of respondent's admissions
against interest.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Section 241(f) of the Act provides as follows:
The provisions of this section relating to the deportation of aliens
within the United States on the ground that they were excludable at the
time of entry as aliens who have sought to procure, or have procured
visas or other documentation, or entry into the United States by fraud
or misrepresentation shall not apply to an alien otherwise admissible at
the time of entry who is the spouse, parent, or a child of a United
States citizen or of an alien lawfully admitted for permanent residence.
(2) Aliens are deportable who are excludable at time of entry
(section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1)). Section 212(a)(
19) of the Act, 8 U.S.C. 1182(a)(19) provides for the exclusion of "Any
alien who seeks to procure, or has procured a visa or other
documentation, or seeks to enter the United States, by fraud, or by
willfully misrepresenting a material fact;'
Section 211(a) of the Act (8 U.S.C. 1181(a)) makes excludable aliens
who fail to comply with certain documentary requirements. It provides:
"No immigrant shall be admitted into the United States unless at the
time of application for admission he (1) has a valid unexpired immigrant
visa or was born subsequent to the issuance of such immigrant visa of
the accompanying parent, (2) is properly chargeable to the quota
specified in the immigrant visa, (3) is a nonquota immigrant if
specified as such in the immigrant visa, (4) is of the proper status
under the quota specified in the immigrant visa, and (5) is otherwise
admissible under this Act.'
(3) The legislative intent in passing section 7 of the Act of
September 11, 1957 is summarized in the report of the Senate Committee
accompanying the Senate Bill which became be law. The report states:
Section 7 of the bill S. 2972 would provide for the correction of a
situation which exists in the case of certain aliens admitted under the
Displaced Persons Act who are in a deportable status because of
misrepresentations made with reference to their nationality or place of
birth to avoid repatriation to Communist-controlled countries. This
section would also permit a similar adjustment to be made in the case of
spouses, parents, or children of United States citizens or lawful
resident aliens, who have sought to procure or have procured visas or
other documentation or entry into the United States by fraud or
misrepresentation. The section further provides that after the
effective date, the Attorney General shall have discretionary authority
to waive the ground of inadmissibility in behalf of the spouse, parent
or child of a United States citizen or alien lawfully admitted for
permanent residence who is found to be subject to exclusion because he
has practiced fraud or made a misrepresentation in connection with his
visa application or application for admission to the United States. (S.
Rep. No. 1057, 85th Cong., 1st Sess. 5 (1957).
(4) A ground of inadmissibility which would not exist except for the
fact that a false statement was made, i.e., the admission of the
commission of perjury in the making of a false statement under oath
before the consul (section 212(a)(9) of the Act) merges in the obtaining
of the visa by fraud and comes within the waiver (Matter of Y , 8 I. &
N. Dec. 143, 149). The charge that a person was not a nonquota
immigrant does not flow from the fact that fraud was committed in
obtaining a visa, it precedes the fraud.
(5) Congressional awareness of Board decisions is shown (see 1961 U.
S. Code Cong. & Ad. News, 87th Cong., 1st Sess., 2984, comment on two
Board decisions concerning expatriation, and section 401 of the Act, 8
U.S.C. 1106).
Where the rentention provisions of section 301(b) of the Immigration
and Nationality Act can be met by an interpretation of section 16, Act
of September 11, 1957, which permits the periods of permissible absence
to be included in the computation of the required period of physical
presence, as well as by an interpretation which requires the periods of
absence to be compensated for by additional periods of physical
presence, it is unnecessary to adopt one or the other of such
interpretations in deciding the case. cf. Matter of Bustillos-Ruiz,
Interim Decision #1243.
The Board of Immigration Appeals on August 7, 1962, entered an order
directing the reopening of this case for the introduction of additional
evidence on the issue of whether the applicant's physical presence in
the United States has been sufficient for the retention of his United
States citizenship acquired at birth (section 301(b) of the Immigration
and Nationality Act, as amended by section 16 of Public law 85-316; 8
U.S.C. 1401(b) and 1401b). The order also directed that the case be
certified to the Board for final decision pursuant to 8 CFR 3.1(c). The
case is again before us following a reopened hearing accorded the
applicant on September 5, 1962.
The applicant, a married male, 24 years of age, was born in Mexico on
Jan. 2, 1938, of lawfully married parents, one of whom was a citizen of
the United States, the other an alien. He applied for entry as a United
States citizen at the port of El Paso, Texas on February 4, 1962. He
was excluded as an alien not in possession of an immigration visa
(section 212(a)(20), Immigration and Nationality Act, 8 U.S.C.
1182(a)(20)). The special inquiry officer concluded that the applicant
had lost his United States citizenship by failing to establish a
residence in the United States prior to his 23rd birthday and therefore
required documentation to enter as an alien.
Our decision of August 7, 1962, rejected the special inquiry
officer's interpretation of section 301(b), as amended, to wit: that in
order for the foreign-born child to retain citizenship acquired at birth
he must enter the United States for permanent residence before attaining
the age of 23 years, and shall thereafter be physically present in the
United States for at least 5 years following any such entry prior to the
age 23 and after age 14. We also rejected the special inquiry officer's
interpretation that section 16 of Public Law 85-316 (supra) avails the
applicant nothing because as a condition precedent to computing
allowable absences from the United States the foreign-born citizen child
must "take up residence in the United States' prior to his 23rd
birthday.
The Board's decision of August 7, 1962, is based on our conclusion
that it was the intent of Congress to eliminate the residential
requirements for retention of citizenship formerly embodied in section
201(g) of the Immigration and Nationality Act of 1940 when they enacted
section 301(b) of the Immigration and Nationality Act (supra). We
reasoned that it would distort the retention provisions of the present
Act if we were to equate such phrases as "must reside in the United
States' and "has not taken up residence in the United States' the
language used in the retention provisions of former section 201(g), with
the phrases "he shall come to the United States' and "be continuously
physically present in the United States' the language now found in the
retention provisions of section 301(b) of the Immigration and
Nationality Act.
Section 301(b) of the Immigration and Nationality Act provides in
substance that a child born abroad to parents, one of whom is an alien,
retains his United States citizenship provided he comes to the United
States prior to attaining the age of 23 years and immediately following
any such coming he is physically present in the United States for a
continuous period of at least 5 years, which physical presence must
follow the attainment of 14 years and precede the age of 28 years. The
amendment to section 301(b) permits absences from the United States of
less than 12 months in the aggregate during the period for which
continuous physical presence is required. A limited interpretation
could construe that portion of the amendment which reads "during the
period for which continuous physical presence in the United States is
required' to mean that the foreign-born citizen must have a continuity
of actual physical presence in the United States totaling 5 years prior
to attaining the age of 28 years and this 5-year period must not be
interrupted by total absences which aggregate 12 months or more (8 U.S.
C. 1401b).
The aggregate of the applicant's absences from the United States
between his 23rd birthday (January 2, 1961) and February 4, 1962, the
date he applied for admission, totals 178 1/2 days (see appendix A,
Board's decision, August 7, 1962). Under this limited interpretation of
the statute and the amendment, the applicant must have a continuity of
actual physical presence in the United States immediately preceding
January 2, 1961 (23rd birthday) which will compensate for the 178 1/2
days of absences noted above. Furthermore, after compensating for 178
1/2 days of absences, the applicant, in order to establish actual
presence in the United States for a continuous 5-year period which is
not interrupted by total absences which aggregate 12 months or more,
must establish that his absences have not exceeded 185 1/2 days during
any 5-year period running from a date certain prior to his 23rd birthday
and ending on a date prior to his 28th birthday (January 2, 1966).
Appendix I attached to the special inquiry officer's opinion of
September 20, 1962, is a computation of the applicant's physical
presence in Mexico between April 1, 1959 and December 31, 1960. The
computation shows that for the period September 16, 1959, through
December 31, 1960, the applicant was physically present in Mexico for a
total of 163 7/12 days which is less than 185 1/2 days of allowable
absences for this period.
The applicant sought to enter the United States as a citizen on
February 4, 1962. Between September 16, 1959, and 12:00 midnight on
February 3, 1962, there is a span of 872 days or 2 years 4 months and 18
days. During this period the applicant has been absent from the United
States for a total of 342 1/12 days. Accordingly, if the applicant had
been admitted as a citizen on February 4, 1962, it would have been
mathematically possible for him to acquire a continuity of actual
physical presence in the United States totaling 5 years prior to his
28th birthday because during the period September 16, 1959 through
February 3, 1962, the total of his absences amount to some 22 11/12 days
less than one year (see Appendix I attached to the special inquiry
officer's opinion).
Using September 16, 1959, as the beginning of the continuous 5-year
period, the applicant has been physically present in the United States
for a total of 1 year 5 months and 12 days as of February 4, 1962, the
date he sought to enter. Accordingly, between September 16, 1959, and a
date certain in September of 1965 the applicant can acquire a continuity
of actual and potential physical presence in the United States totaling
5 years prior to attaining the age of 28 years and during this period
the applicant may be absent from the United States for not more than 22
11/12 days. Since the evidence now of record meets the test of
continuous actual physical presence according to a limited
interpretation of the statute as amended, we will affirm that portion of
the special inquiry officer's decision which applies this test and the
order admitting the applicant as a citizen of the United States.
Our decision of August 7, 1962, is based upon the premise that any
foreign-born who acquired United States citizenship at birth pursuant to
the provisions of section 301(a)(7) of the Immigration and Nationality
Act (8 U.S.C. 1401(a)(7)) could retain the citizenship so acquired by
coming to the United States prior to attaining the age of 23 years and
following any such coming by being actually physically present in the
United States for periods of time which have a continuity of 5 full
years between his 14th and 28th birthdays. The permissible absences
allowed by section 16 of Public Law 85-316 (supra) were not included in
the computation of the required continuous 5-year period as
"constructive presence.'
The special inquiry officer is of the opinion that it was the intent
of Congress to adopt the "constructive presence' theory when they
enacted section 16 of Public Law 85-316. Section 16 reads in pertinent
part "absences from the United States of less than 12 months in the
aggregate, during the period for which continuous physical presence in
the United States is required, shall not be considered to break the
continuity of such physical presence' (emphasis supplied). The special
inquiry officer maintains that the term "period' as used in the
emphasized portion of section 16 (supra) refers to the period of 5 years
of physical presence, rather than to the period between the ages of 14
and 28 years during which the 5 years of physical presence must occur.
Under the special inquiry officer's theory any absences of less than 12
months within a continuous 5-year period would count as "constructive
presence.'
The applicant herein is admissible to the United States as a citizen
under the limited interpretation of the "actual physical presence'
requirements set forth in section 301(b) as amended by section 16 of
Public Law 85-316 (supra). He is also admissible as a citizen under the
"constructive physical presence' theory advocated by the special inquiry
officer. Since a clear cut issue with regard to the "continuity of
physical presence' theory vis a vis the "constructive physical presence'
theory is not before us in this case we see no need to adopt either
theory at this time. An appropriate order will be entered.
ORDER: It is directed that the order entered by the special inquiry
officer on September 20, 1962 admitting the applicant as a citizen of
the United States be and the same is hereby affirmed.
An alien who has been the beneficiary of a visa petition based on a marriage found later to have been contracted for the purpose of evading the immigration laws (section 205(c)) cannot claim the benefit of the waiver provided by section 241(f) of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952 -- Sections 241(a)(2) and (c) 8 U.S.C. 1251(a)(
2) and (c) -- Visa procured by fraud in violation of section 212(a)(19)
8 U.S.C. 1182 .
Respondent is 35 years of age, married, male, alien, a native and
national of Italy. He first entered the United States in June 1954 as a
deserting seaman. He was apprehended by the Immigration and
Naturalization Service in October 1954 and was paroled for one week to
arrange to post a $1,000 bond. He last arrived in the United States on
August 8, 1955 and was admitted for permanent residence upon
presentation of a nonquota immigrant visa. This case has been before
the Board on several occasions. It is necessary to retrace briefly the
proceedings to date. On August 21, 1958, following a thorough hearing,
during which respondent was represented by counsel of his choice, the
special inquiry officer ordered responent deported on the charge set
forth above. Respondent appealed to this Board, and his counsel filed a
brief in support of the appeal. On October 22, 1958 we dismissed the
appeal. We found that respondent had obtained his visa on the basis of
his marriage to a United States citizen at Syracuse, New York on
November 13, 1954, and that marriage was annulled on July 9, 1956. We
stated (B.I.A., October 22, 1958, p. 3), "Clearly, the respondent has
failed to sustain his burden under the statute and the Government has
established by a preponderance of the evidence that he entered into his
marriage with Frances Buda to evade the quota requirements of the
immigration laws.'
During the proceedings in 1958 there was an indication that
respondent had entered into another marriage with a United States
citizen, but he offered no evidence regarding this marriage during the
deportation proceedings and made no request that the second marriage be
considered in any grant of discretionary relief. Counsel's memorandum
in support of the appeal to this Board stated that respondent was
married to a legally resident alien. The record indicates that
respondent's present wife is now a naturalized United States citizen and
that two citizen children have been born to this marriage.
There was no action taken in this matter after our order of October
22, 1958 until March 20, 1962 when the Board received a notice of motion
for a reopening, reconsideration and termination of warrant proceedings
filed by present counsel. The Board heard oral argument on the motion,
ordered the outstanding order and warrant of deportation withdrawn and
the proceedings reopened. We agreed that evidence relating to
respondent's present marriage and his two United States citizen children
should be made a part of the record, particularly in light of
legislation enacted since the entry of the outstanding order of
deportation which, counsel alleged, made respondent nondeportable. We
pointed out that the proceedings also should be reopened in order to
give the Service an opportunity to consider or oppose the grant of
relief sought by counsel under the new legislation.
Following the reopened hearing on July 3, 1962, and the filing of
briefs by both counsel for the alien and by the examining officer, the
special inquiry officer denied respondent's application for the waiver
nunc pro tunc provided by section 16 of the Act of September 26, 1961,
adding section 241(f) to the Immigration and Nationality Act. /1/ The
special inquiry officer granted him voluntary departure. The special
inquiry officer found that deportation of respondent would result in
serious detriment and hardship to his citizen wife and children, that
the wife is unemployed and that respondent is the sole support of the
family. The special inquiry officer denied the nunc pro tunc waiver
under section 241(f) solely on the ground that he found the alien not to
have been "otherwise admissible', as required by that section, at the
time of his last entry on August 8, 1955.
At the time of his last entry respondent was the beneficiary of a
visa petition filed by his first wife and previously was accorded
nonquota status under section 101(a)(27)(A). We have again reviewed the
entire record. The special inquiry officer's decision restates at some
length facts which were adjudicated by the special inquiry officer and
this Board in 1958. Counsel argues that this constituted a reopening of
the entire record, and justifies his request to cross-examine the
alien's first wife. He seeks, first, to readjudicate the issue of
whether the first marriage was fraudulent upon the part of the alien,
asserting that the marriage broke up after seven or eight months of
genuine effort by the alien to make it a good marriage. Counsel pleads
that the marriage was basically a misalliance, and that the religious
barrier was only one of the obstacles.
There is no claim of new evidence relating to the first marriage
which required the presence of the first wife at the reopened hearing.
The fraudulent nature of the first marriage was established in 1958.
The alien contracted a second marriage which is undoubtedly bona fide.
It was to give him an opportunity to show the facts of the new marriage,
asserted as the basis for relief, that this case was reopened and
returned to the special inquiry officer. The refusal of the special
inquiry officer to subpoena the first wife and to treat the case as a
hearing de novo was not error.
Counsel argues, second, that respondent did not commit a fraud by
entering as the nonquota spouse of a United States citizen, because for
some purposes an annulment does not annul the marriage from the
beginning, but only from the date of the annulment. Counsel claims that
the Domestic Relations Law of New York makes respondent's first marriage
void only from the time a judgment is rendered by the court. He quotes
section 7 of that statute as follows, "A marriage is void from the time
its nullity is declared by a court of competent jurisdiction if either
party thereto . . . (4) consents to such marriage by reason of force,
duress or fraud.' Counsel admits that the New York cases generally
sustain the idea, in spite of the statutory declaration, that a voidable
marriage declared void by a court is void ab initio. Counsel contends,
however, there is a minority view and cites Barker v. Barker, 172
App.Div. 244 (1916).
The special inquiry officer found respondent was not the lawful
spouse of a United States citizen at time of entry and was not,
therefore, a nonquota immigrant. He states (special inquiry officer,
August 9, 1962, p. 11):
Had all the facts been known by the Government on August 8,
1955, the date of respondent's entry, he would have been found
inadmissible under section 212(a)(20) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(20)) as an immigrant who is not
in possession of a valid unexpired immigrant visa or other entry
document. The respondent has failed to clearly establish that he
was "otherwise admissible' at the time of entry . . .
The special inquiry officer did not consider or refer to the
provisions of section 205(c), as amended by section 10 of the
Immigration and Nationality Act of September 26, 1961. /2/
The Service representative argued before this Board (1) that
respondent was either not a nonquota immigrant or he had no valid visa,
and (2) that even had the annulment not taken place, if the marriage was
in fact a fraudulent marriage, the no valid visa charge would be
sustainable, if the Service had chosen to bring that charge.
On several occasions the Board has had appeals from denials of visa
petitions, and we have said that a visa petition proceeding was not the
correct form in which to litigate the legality of a marriage. In those
cases we have returned the visa petition to the Service for the purpose
of having the validity of the marriages adjudicated in deportation
proceedings. This is just such a case, and it comes up now in a
deportation proceeding.
Counsel pleads that the equities of the case justify waiving the
fraud of the respondent's first marriage, if there was fraud. Counsel
admits that if respondent is required to depart, he is not again
eligible for nonquota status as the spouse of a United States citizen
because of the prohibition of section 10 of the Act of September 26,
1961, amending section 205(c) of the Immigration and Nationality Act
(see footnote 2).
The Board has held routinely in visa petition cases where an alien
has been accorded nonquota status as the spouse of a United States
citizen and approval of the visa petition was later revoked for fraud,
that such a beneficiary could not qualify for nonquota status on the
basis of a subsequent marriage, even though the subsequent marriage may
be bona fide. Matter of W , Int. Dec. No. 1222 (B.I.A., May 22, 1962);
Matter of A , Int. Dec. No. 1223 (B.I.A., June 1, 1962).
Both the Service representative and counsel recognize that Public Law
87-301, September 26, 1961, contains two divergent provisions. In
application these provisions appear to be conflicting. Section 16 (see
footnote 1) is an abbreviated but broadened reenactment of section 7 of
the Act of September 11, 1957, which was conceived primarily to assist
refugees and displaced persons who had made misrepresentations to avoid
repatriation to certain geographical areas in Europe following World War
II, or for other defensive reasons.
The Board was precluded from granting advance waivers under section 7
of the Act of September 11, 1957 to aliens within the United States, as
that provision was interpreted by the Attorney General in Matter of DeF
, 8 I. & N. Dec. 68. Under that statute respondent in the instant
matter would have been precluded from the waiver, because he would have
to depart from the United States to obtain it, and then the prohibition
of section 10 of the Act of September 26, 1961 (against granting a visa
petition on the basis of his second marriage) would have come into play.
However, the waiver provided by section 16 of the Act of September 26,
1961 clearly gives the authority simply to terminate proceedings when
the waiver is granted.
Section 10 of the Act of September 26, 1961 is an entirely new
provision of law. Referring to section 10, this Board said in Matter of
R , Int. Dec. No. 1188:
The legislative history indicates that the amendment was
proposed to strengthen existing law by giving the Attorney General
a new legal instrumentality to counteract the increasing number of
fradulent acquisitions of nonquota status through sham marriages
between aliens and United States citizens. The legislation was
prompted by a recent report of the Attorney General to Congress
about the increasing number of such sham marriages, indicating the
existence of marriage schemers operating in various parts of the
country arranging for high fees, for deceitful marriages involving
in most instances alien seamen. /3/
Sections 12, 14, 15 and 16 of the Act of September 26, 1961 give
enlarged rights and special consideration to aliens who are the spouse,
parent or child of a United States citizen or legally resident alien,
and who otherwise would be excludable or deportable. However, section
10 of the same Act indicates that Congress intended that the expanded
privileges are not to be available even to a bona fide spouse, if he has
in the past been party to a sham marriage entered into for the purpose
of evading the immigration laws. Even though section 10 of the Act of
September 26, 1961 specifically forbids only the approval of a visa
petition in his behalf, it indicates the intention of Congress that the
immigration status of such a person is not to be adjusted under any of
the ameliatory acts.
Counsel maintains that the words "otherwise admissible' in section 16
are not a bar to a grant of the waiver, claiming that this phrase refers
to a state of inadmissibility which might exist apart from the fraud,
e.g., criminality, feeble-mindedness, insanity, epilepsy. Counsel
asserts that the words "otherwise admissible' mean that, except for the
fraud and the impediment of the fraud, respondent must not have had some
other impediment at the time of entry that would make him inadmissible.
The Service asserts that to be "otherwise admissible' means that the
respondent must have been in possession of a valid visa at the time of
his entry, and that respondent cannot receive the waiver. He was
actually a quota immigrant, who entered as a nonquota immigrant. See
Matter of D'O , 8 I. & N. Dec. 215 (1958), wherein we held that
proceedings could not be terminated under section 7 of the Act of
September 11, 1957 (P.L. 85-316) where respondent evaded the quota
restrictions by securing entry as a nonquota immigrant. We stated in
D'O that there is nothing in the history of section 7 of the Act of
September 11, 1957 which indicates that it was the intention of Congress
to remove the careful protection which had been built into the
immigration laws regarding quotas. We stated, "Section 7 excuses the
presence of fraud. It does not wipe out the existence of all other
grounds of inadmissibility which may have been present. Section 7 also
excuses the fact that an alien had been charged to the wrong quota.' We
agree with the Service contention that respondent was not "otherwise
admissible' at the time of his last entry as required by section 16 of
the Act of September 26, 1961.
We are well aware of the hardship factors on which counsel has dwelt
at length. The same factors exist in the visa petition cases, of which
Interim Decisions Nos. 1222 and 1223 are examples. There are certain to
be family ties in the alien's favor in these cases; otherwise, this
problem in statutory construction could not arise since there would be
no visa petition filed in his behalf, and no request for a waiver under
section 241(f) which is available only to a spouse, parent or child of a
United States citizen or lawfully resident alien.
We find nothing in the record to justify reexamination of the issue
of the good faith of respondent's first marriage. Aside from the
testimony of respondent's first wife, he admitted that he would have
left the United States when he was first apprehended if he had not found
someone to post the $1,000 bond for him. He also testified that he knew
that some of his friends from Sicily had married in the United States
and had been permitted to remain here. Respondent was represented
throughout the 1958 proceedings by counsel who was vigorous and
knowledgeable.
Section 16 of the Act of September 26, 1961 provides an absolute
waiver for an alien who has procured documentation by fraud and who
comes within the other requirements of the provision. If respondent
were given such a waiver he and the Government would be in an untenable
position. He could not get a visa, because of the prohibition contained
in section 10 of the Act of September 26, 1961, but neither could he be
deported. He could not be granted a legal status, but neither could his
illegal status be litigated, because these proceedings would have been
terminated. Aside from the finding that respondent was not "otherwise
admissible' at entry, it is our conclusion that an alien who has been
the beneficiary of a visa petition based on a marriage found later to
have been contracted for the purpose of evading the immigration laws,
cannot claim the benefit of the waiver provided by section 16 of the Act
of September 26, 1961, adding section 241(f) to the Immigration and
Nationality Act. This is the only interpretation which reconciles
section 205(c) as amended, with section 241(f) of the Immigration and
Nationality Act.
ORDER: It is ordered that the appeal be and is hereby dismissed.
(1) Section 16 of the Act of September 26, 1961 provides:
Sec. 16. Section 241 of the Immigration and Nationality Act (8 U.S.
C. 1251) is hereby amended by adding the following:
(f) The provisions of this section relating to deportation of
aliens within the United States on the ground that they were
excludable at the time of entry as aliens who have sought to
procure, or have procured visas or other documentation, or entry
into the United States by fraud or misrepresentation shall not
apply to an alien otherwise admissible at the time of entry who is
the spouse, parent, or a child of a United States citizen or of an
alien lawfully admitted for permanent residence.
(2) Section 10 of the Act of September 26, 1961, amends section 205(
c) of the Immigration and Nationality Act by adding: "Notwithstanding
the provisions of this subsection, no petition shall be approved if the
alien previously has been accorded, by reason of marriage determined by
the Attorney General to have been entered into for the purpose of
evading the immigration laws -- (1) a nonquota status under section
101(a)(27)(A) as the spouse of a citizen of the United States. . . .'
(3) H. Rept. No. 1086, 87th Cong., 1st Sess., pp. 36, 37.
An alien who entered the United States as a crewman is not statutorily ineligible for voluntary departure under section 244(f) of the Immigration and Nationality Act (as amended by Act of Oct. 24, 1962; PL 87-885).
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant remained longer than permitted.
The special inquiry officer directed the respondent's deportation and
the case is before us on certification.
The respondent is a 44-year-old married male, native and citizen of
Spain, who last entered the United States on or about September 29,
1960, at which time he was admitted as a nonimmigrant crewman for the
period during which his vessel remained in port but not exceeding 29
days. He remained beyond that time without authority and has conceded
his deportability on the charge stated in the order to show cause.
The issues to be determined are (1) whether a crewman is statutorily
ineligible for voluntary departure under section 244 of the Immigration
and Nationality Act (8 U.S.C. 1254) as amended on October 24, 1962 (76
Stat. 1247-1249; Public Law 87-885, 87th Congress) and (2) whether that
relief should be granted in the exercise of discretion. The special
inquiry officer concluded that the respondent was statutorily eligible
for voluntary departure but exercised his discretion by denying that
relief. The Service indicated that it did not wish to express an
opinion on the question of whether the amendatory act does or does not
preclude the granting of voluntary departure to a crewman, preferring to
have this Board rule on the matter.
The statutory provision involved is section 4 of the Act of October
24, 1962, which amended section 244 of the Immigration and Nationality
Act. As originally enacted and as amended, subsections (a), (b), (c)
and (d) have reference to suspension of deportation and subsection (e)
to voluntary departure. Several changes were made in the subsections
relating to suspension of deportation. As a result, reference in
subsection (e) to paragraph (4) or (5) of subsection (a) was necessarily
changed to paragraph (2) of subsection (a). With that exception,
amended subsection (e) is identical with subsection (e) as it was
originally enacted. In substance, subsection (e) authorizes the
Attorney General, in his discretion, to "permit any alien under
deportation proceedings * * * to depart voluntarily from the United
States at his own expense in lieu of deportation' if he establishes good
moral character for five years. This is limited by the language
excluding certain aliens within the provisions of enumerated paragraphs
of section 241(a) but even such aliens may be granted voluntary
departure if they are eligible for suspension of deportation. Insofar
as concerns subsection (e) itself, which is the only subsection dealing
with voluntary departure, that relief may be granted to any alien under
deportation proceedings with the one limited exception we have
mentioned.
There was added to section 244 by the Act of October 24, 1962 a new
subsection (f) reading as follows:
(f) No provision of this section shall be applicable to an
alien who (1) entered the United States as a crewman; or (2) was
admitted to the United States pursuant to section 101(a)(15)(J) or
has acquired such status after admission to the United States; or
(3) is a native of any country contiguous to the United States or
of any adjacent island named in section 101(b)(5): Provided, That
the Attorney General may in his discretion agree to the granting
of suspension of deportation to an alien specified in clause (3)
of this subsection if such alien establishes to the satisfaction
of the Attorney General that he is ineligible to obtain a nonquota
immigrant visa.
A literal reading of subsection (f) would indicate that it applies,
not only to the subsections dealing with suspension of deportation, but
to subsection (e) which relates to voluntary departure. There may have
been cogent reasons why Congress prohibited the granting of suspension
of deportation to aliens who entered the United States as crewmen, or
who were admitted under section 101(a)(15)(J) or who are natives of
countries contiguous to the United States or adjacent islands. With
regard to a crewman there was a possibility under prior law that such an
alien, who had gained entry to the United States by the device of
deserting his ship, could eventually obtain suspension of deportation
and thus adjust his immigration status to that of a legal permanent
resident. Such a possibility added incentive for other crewmen to
desert their ships and remain illegally in the United States. On the
other hand, voluntary departure confers no right to remain in this
country permanently and is ordinarily advantageous to the Government
because the alien must pay the expenses relating to his departure, and
the delays which sometimes result from enforced expulsion are
eliminated.
It is a well-settled rule of statutory construction that a case may
be within the meaning of a statute and not within its letter or within
its letter and not within its meaning, and that a statute should be
construed so as to carry out the intent of the legislature, although
such construction may seem contrary to the letter of the statute.
Stewart v. Kahn, 78 U.S. 493, 504 (1871); Church of the Holy Trinity v.
United States, 143 U.S. 457 (1892).
We have carefully examined the legislative history of the statutory
provision here involved, and we observe that there is a complete absence
of anything which would indicate an intention of changing the original
provisions of section 244(e) under which voluntary departure could be
granted to any alien who met the requirements of that subsection. The
discussion in the Senate as it appears in the Congressional Record of
October 13, 1962 (Vol. 108, p. 22169) relates entirely to adjustment of
status through suspension of deportation without any reference to the
relief of voluntary departure. The Congressional Record of October 12,
1962 (Vol. 108, p. 22153) shows that in the House of Representatives
Honorable Francis E. Walter, in explaining the bill, stated in part as
follows:
Basic principles of a sound immigration policy and our
continuous concern to preserve the integrity of the very important
international educational exchange program caused the conferees to
exclude from the benefits of this legislation those aliens who
enter the United States as crewmen or exchange visitors. Similar
exclusion, with specified exceptions applies to natives of
countries and islands contiguous or adjacent to the United States.
If any alien in these classes becomes subject to deportation
proceedings, maximum relief which could be accorded him would be
discretionary action by the Attorney General who may permit such
alien to leave the United States without prejudice to his future,
lawful entry, provided that he or she leaves the United States
promptly when ordered by the Attorney General to do so. (Emphasis
supplied.)
We believe that Congressman Walter's remarks make it quite clear that
it was the intention and understanding of Congress that the provisions
of subsection (f) of section 244 applied only to the subsections
pertaining to suspension of deportation and were not intended to apply
to subsection (e) which authorizes the granting of voluntary departure.
In view of the foregoing, it is our considered opinion that section
244(f) does not preclude the granting of voluntary departure to an alien
who entered the United States as a crewman. The special inquiry officer
concluded that the respondent was statutorily eligible for voluntary
departure and apparently found that good moral character for five years
had been established. We concur in these conclusions.
With respect to the remaining issue, it is obvious from this record
that the respondent was not one who secured employment as a seaman for
the purpose of coming to the United States and deserting his ship. He
stated that he worked as a seaman for about 18 years and came to the
United States on about 15 to 18 occasions, his first arrival being about
1944. He testified that he departed with his vessel each time except on
his last arrival and an arrival in 1954 when he inadvertently failed to
return to his vessel before its departure. At that time he remained
ashore until 1956 when he was apprehended by the Service and was
permitted to depart voluntarily. He testified that he has sufficient
funds for his departure and is ready and willing to depart voluntarily
at his own expense if that relief is granted. His wife and three
children reside in Spain and are supported by the respondent. We
conclude that this case merits the granting of voluntary departure, and
this relief will be granted in the exercise of our discretion.
Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be sustained; that the
outstanding order of deportation be withdrawn; and that the alien be
permitted to depart from the United States voluntarily without expense
to the Government, to any country 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 deportation
be reinstated and executed.
(1) Where respondent, a native and citizen of Syria, obtained, in an assumed name, a birth certificate with which he secured a passport from the Republic of Lebanon, a "no valid passport' charge under section 212(a)(26) of the Immigration and Nationality Act is sustained since said passport did not show his identity and correct nationality.
(2) Respondent's willful misrepresentation to be the individual named in the Lebanese passport he presented in procuring his nonimmigrant visa is material under section 212(a)(19), since he would have been excludable at time of entry had he disclosed his true name. cf. Matter of Box, Int. Dec. No. 1247.
(3) In light of the contradiction inherent in counsel's request that respondent be permitted to complete his schooling after which the Government could "send him back at that time' and since respondent has presented no evidence, other than his own unconvincing testimony, to corroborate his claim, he has failed to establish that because of his Armenian origin and his religious beliefs he would be subject to physical persecution under section 243(h) if deported to Syria.
(4) Where, following hearing in November 1961 on respondent's section 243(h) application, there has been no decision by, nor even a recommendation to, the Regional Commissioner prior to the amendment of the regulations effective January 22, 1962 (Title 8, CFR, 26 F.R. 12110, Dec. 19, 1961), the reopening of the hearing after that date for determination of the application in accordance with the amended regulations was the proper procedure.
CHARGES:
Order: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) -- Excludable at entry under 8 U.S.C. 1182(a)(19) -- Visa procured by fraud or misrepresentation.
Lodged: Act of 1952 -- Section 241(a)(1) 8 U.S.C. 1251(a)(1) --
Excludable at entry under 8 U.S.C. 1182(a)(26) -- Nonimmigrant not in
possession of valid passport.
This case is before us on appeal from a decision of a special inquiry
officer granting voluntary departure and directing that the respondent
be deported if he fails to depart voluntarily.
The respondent is a 28-year-old unmarried male, native and citizen of
Syria, whose only entry into the United States occurred on September 25,
1957, at which time he was admitted temporarily as a nonimmigrant
student under the assumed name of Jirair Parkev Ananian, having obtained
a passport in that name from the Republic of Lebanon. The special
inquiry officer found that the visa was obtained by fraud or
misrepresentation and that the respondent did not have a valid passport,
and he concluded that both charges were sustained.
In the notice of appeal, counsel stated that deportability was
contested, and that the appeal was also based on denial of applications
under sections 244(a) and 243(h) of the Immigration and Nationality Act
8 U.S.C. 1254(a) and 1253(h) . No application was submitted under 8 U.
S.C. 1254(a), and the respondent does not meet the requirements of that
statutory provision. The issues to be determined are, therefore,
whether deportability has been established and whether deportation
should be withheld under 8 U.S.C. 1253(h).
Counsel did not file a brief, but we have carefully considered the
statements in the notice of appeal. There is nothing to indicate in
what respect counsel claims there was a failure to accord the respondent
due process of law, and this contention is dismissed as being without
merit.
Insofar as concerns the contention that the two charges are not
sustained, the respondent admitted that he obtained a birth certificate
in the name of Jirair Ananian; that he represented himself to be this
individual in obtaining a passport from the Republic of Lebanon; and
that he made a similar representation and claimed to be a Lebanese
citizen when he procured his nonimmigrant visa (hearing of February 8,
1960, p. 9). 8 U.S.C. 1101(a)(30) provides: "The term "passport' means
any travel document issued by competent authority showing the bearer's
origin, identity, and nationality if any, which is valid for the entry
of the bearer into a foreign country.' Since the Lebanese passport did
not show the respondent's identity and correct nationality, it was not a
valid passport, and we hold that he was excludable at the time of entry
under 8 U.S.C. 1182(a)(26). Accordingly, the lodged charge is
sustained.
With reference to the charge stated in the order to show cause, the
respondent was excludable under 8 U.S.C. 1182(a)(19) if he procured his
visa in either of two ways -- (A) by fraud or (B) "by willfully
misrepresenting a material fact'. The special inquiry officer held
(decision, p. 5) that the respondent was deportable because his visa had
been secured by one method or the other. However, there was no
particular discussion of whether he procured the visa by fraud. The
respondent obtained a birth certificate and a Lebanese passport by
fraud, and we are satisfied that fraud was necessarily inherent in the
procurement of the visa.
In connection with the question of whether the respondent procured
his visa by willfully misrepresenting a material fact, there were cited
Matter of S and B C , Int. Dec. 1168 (A.G., 1961), and Matter of L D L R
, Int. Dec. 1207 (1962). The special inquiry officer held that the
respondent had not borne the burden of establishing that the
misrepresentations did not cut off a line of inquiry which might have
resulted in the denial of the visa. Counsel contends that the
respondent met this burden of proof.
In Matter of S and B C , supra, the Attorney General stated (p. 7)
that the application of the test of materiality would turn on the
answers to three questions. The second question was whether the
misrepresentation tended to shut off a line of inquiry which was
relevant to the alien's eligibility, and it was stated that a
misrepresentation as to identity would almost necessarily have shut off
a relevant investigation. However, before reaching this second
question, the first question stated by the Attorney General must be
considered. This is whether the alien was excludable on the true facts.
As we have concluded above, this respondent was excludable at the time
of entry under 8 U.S.C. 1182(a)(26) because he did not have a valid
passport. It was only the respondent's willful misrepresentation,
identifying himself with the person named in the passport, that enabled
him to procure the nonimmigrant visa, and it seems obvious that he would
have been excluded under 8 U.S.C. 1182(a)( 26) when he applied for
admission to the United States if he had disclosed his true name. The
Attorney General specifically stated that if the alien was excludable on
the true facts, the misrepresentation was material. It is only where
the alien is not excludable on the true facts that the second and third
questions stated by the Attorney General are to be considered. Hence,
although we do not approve all of the special inquiry officer's
reasoning on this matter, we do concur in his conclusion that the
respondent was excludable at the time of entry under 8 U.S.C.
1182(a)(19), and we conclude that he is deportable on the charge stated
in the order to show cause.
The remaining issue relates to the respondent's application under 8
U.S.C. 1253(h). The hearing on this application was completed on
November 15, 1961. The special inquiry officer stated (Tr. p. 14) that
the officer who questioned the respondent concerning this application
had not made his recommendation to the Regional Commissioner prior to
the amendment of the regulations effective January 22, 1962 (26 F.R.
12110), and counsel contends that the procedure in the respondent's case
was defective for that reason. Since there had been no decision by the
Regional Commissioner nor even a recommendation to him, we believe the
Service followed the proper procedure in reopening the hearing in order
that the determination of this application might be made in accordance
with the regulations which had become effective in the meantime. The
respondent has not shown that this resulted in any prejudice to his
case. Accordingly, this contention is dismissed.
Under 8 CFR 242.17(c), the respondent has the burden of proving that
he would be subject to physical persecution if deported to Syria. No
evidence whatever was offered to support this application during the
reopened hearing on May 16, 1962, and a statement by counsel (Tr. p.
10), requesting that the respondent be permitted to complete his
schooling after which the Government could "send him back at that time',
seems to contradict the respondent's claim that he fears he would be
physically persecuted if deported to Syria. The only evidence in
support of the application is Exhibit 3 which consists of the
respondent's affidavit of August 22, 1961 and his testimony on September
12 and November 15, 1961.
We have carefully considered these statements of the respondent but
we believe they fall far short of establishing that the respondent would
be subject to physical persecution. In the affidavit of August 22,
1961, he stated that he is a Christian and an Armenian; that his father
is an active member of the political party that is "strongly against the
Communists'; that he received a letter from his brother stating that
many Armenians belonging to this party had been tortured and thrown in
jail; that he desired to obtain affidavits from experts and letters and
statements from relatives in Syria to support his application; and that
it would require until about September 15, 1961 to obtain this evidence.
At the hearing on September 12, 1961, a continuance was granted at the
request of the respondent and he was instructed to bring with him to the
next hearing all of his witnesses and evidence. On November 15, 1961 he
was questioned fully by the special inquiry officer. When he was asked
why he believed he would be subject to physical persecution, he made a
vague statement but finally said, "I can be tortured, I can be thrown in
jail, anything' (Ex. 3, p. 17). He admitted that his family in Syria,
who are also Christians, had not been persecuted. Apparently his only
basis for assuming that some action may be taken against him is the fact
that he had succeeded in coming to the United States by using a Lebanese
passport. The respondent's testimony that he would be subject to
physical persecution is unconvincing. At the conclusion of the hearing,
he was asked whether he had any evidence or witnesses to present and
answered in the negative. It is our conclusion that the respondent has
not proved that he would be subject to physical persecution if deported
to Syria. In view of the foregoing, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Subject's absence abroad in the United States armed forces during the
period of physical presence required by section 301(b) of the
Immigration and Nationality Act, as amended, for retention of United
States citizenship, is regarded as constructive physical presence in the
United States within the meaning of that section.
The subject has applied to this Service for a certificate of
citizenship, claiming to have acquired United States citizenship at
birth abroad to a citizen mother and an alien father. The District
Director and the Regional Commissioner have concluded that the
application should be granted, a conclusion in which this office
concurs.
Applicant's mother was born in the United States on January 23, 1917,
and lived in this country until 1921. On September 30, 1934, she was
married to applicant's father, an alien, and the applicant was born in
Hungary on May 14, 1936. He was admitted to the United States for the
first time on July 22, 1958, as a citizen of the United States in
possession of a United States passport. Thereafter, he was inducted
into the Armed Forces of the United States on May 13, 1960 and, under
military orders, served overseas on foreign duty from October 5, 1960
until May 12, 1962, when he was returned to the United States.
It is conceded that under Section 1993 U.S.R.S., as amended May 26,
1934 (48 Stat. 797), /1/ the applicant became a citizen of the United
States at the time of his birth. It is also undisputed that under
section 301(b) of the Immigration and Nationality Act (66 Stat. 163),
/2/ his arrival in the United States in 1958, at which time he was over
16 but under 23 years of age, was timely for the purpose of permitting
him then to be recognized as a citizen of the United States (Lee You Fee
v. United States, 355 U.S. 61; Matter of M , 7 I. & N. Dec. 646). A
question arises, however, with regard to whether he may still be
considered a citizen in view of the factual interruption of his physical
presence in this country by his absence abroad in the service of the
Armed Forces of the United States.
Under section 301(b) of the Act, the applicant, in order to retain
his United States citizenship, is required to complete five years'
continuous physical presence in the United States before reaching 28
years of age. Section 16 of the Act of September 11, 1957 (71 Stat.
644), /3/ permits temporary absences from the United States during the
period of required physical presence without a break in its continuity,
provided these absences in the aggregate are less than 12 months.
As the applicant's absence abroad totaled more than 12 months,
section 16 is ineffective to preserve the continuity of the period of
physical presence in the United States which began to accumulate with
his 1958 entry and, in view of his age when factually he resumed
physical presence in the United States, he is not in a position to
accumulate a new five-year period of continuous physical presence here
before he becomes 28 years old. Under section 301(b), therefore, his
service abroad in the Armed Forces of the United States will have had
the extraordinary effect of depriving him of his United States
citizenship, unless his physical presence may be regarded as having
continued to accumulate in the United States during the time he was
serving abroad. Forfeiture of citizenship under such circumstances
would be so palpably an absurd and inequitable result that resort may be
had to the legislative history of the Act for any light it may shed.
The legislative history of section 301(b), as well as related
sections, is of no assistance in determining the Congressional intent
concerning the effect of absence abroad in the Armed Forces of the
United States upon the period of physical presence being accumulated as
compliance with the conditions for retention of citizenship. The
original provisions of that section were found to be harsh and unduly
restrictive, however, and section 16 was enacted to alleviate the
hardships imposed. As to this ameliorative legislation, the reports on
the bills which preceded its enactment (Senate Report No. 1057 on S.
2792 and House Report No. 1199 on H.R. 8123, 85th Congress, 1st session)
indicate that there were then in contemplation only the results which
would follow from voluntary absences from this country, as in the cases
of students in the United States who might proceed abroad for the
purpose of spending summer vacations with their parents residing there:
The amendment to section 1 will permit nationals and citizens
of the United States at birth, born outside the geographical
limits of the United States and its outlying possessions of
parents, one of whom is an alien and the other a citizen of the
United States, to comply with the residential (sic) requirements
of section 301(b) of the Immigration and Nationality Act,
notwithstanding the fact that within the 5 years during which they
are required to be continuously physically present in the United
States, they may leave the United States for short periods. This
proposal is predicated on the fact that many persons, particularly
children, falling within the purview of the above-cited section of
the law, spend the requisite 5 years in the United States while
attending school. Under the present wording of the law, they are
prevented from leaving the United States during that time even for
the purpose of spending their vacation with their parents residing
abroad. Realizing that there is hardship involved, the committee
proposes to authorize a certain degree of statutorily limited
leniency in the administration of that section of the Immigration
and Nationality Act (House Report No. 1199, supra, p. 6).
Section 301(a)(7) of the Act shows also that legislative foresight
was exercised to insure that honorable service in the Armed Forces of
the United States would be taken into consideration in computing the
period of physical presence required of a parent to transmit citizenship
to a child born abroad. But these are the only areas in which a
Congressional intent is clearly shown.
It would be patently erroneous to infer from the failure on these two
occasions to provide legislatively for the problem in the instant case
that Congress intended the performance of military service abroad in the
Armed Forces of the United States to work forfeiture of United States
citizenship. Rather, the Congressional inaction must be viewed in the
light of the fact that constructive residence and physical presence in
the United States are concepts regularly given effect in the field of
immigration and nationality law, and that these concepts are manifestly
applicable to section 301(b).
Thus, in Matter of L B D (4 I. & N. Dec. 639 (1952)), in considering
the question of whether United States citizenship was retained under a
statute which required the child to take up residence in the United
States before 16 years of age, the Attorney General ruled that the
retention requirements were satisfied although factually residence was
not taken up until after that age because of conditions beyond the
control of the child.
Similarly, in Matter of J M D (7 I. & N. Dec. 105 (1956)), the Board
of Immigration Appeals had under consideration a section of the
Immigration and Nationality Act authorizing suspension of deportation if
an alien, among other prerequisites, had "been physically present in the
United States for a continuous period of not less than seven years.'
(Section 244.) /4/
In that case the alien factually for a time had been abroad in the
Armed Forces of the United States. The Board drew a distinction between
such an absence, which was under the compulsion of military orders, and
a voluntary absence such as that stemming from service as a seaman on
merchant vessels. In reaching its conclusion that the alien should be
regarded as continuously physically present in the United States and
hence eligible for suspension of deportation, the Board during its
discussion made some comments that are particularly apposite to the
present applicant's situation:
It is a well-settled rule of statutory construction that a case
may be within the meaning of a statute and not within its letter,
and within its letter and not within its meaning; and that a
statute should be construed so as to carry out the intent of the
legislature, although such construction may seem contrary to the
letter of the statute (Stewart v. Kahn, 78 U.S. 493, 504 (1870);
Church of the Holy Trinity v. United States, 143 U.S. 457, 459,
472 (1892)). We believe it is inconceivable that Congress could
have intended that one who risked his life in active combat duty
in a foreign country would thereby be barred from suspension of
deportation whereas another alien, who performed no military duty
and who was thus able to remain in the United States, would be
entitled to the benefits of section 244( a)(1) of the Immigration
and Nationality Act. It is our considered opinion that an alien
who, while residing in the United States, is inducted into the
Armed Forces of this country and serves honorably is to be
regarded as being physically present in the United States during
such service even though part or all of his tour of duty is in a
foreign country. (p. 107)
After the reopening as directed in the published decision and
submission of the case to Congress later in 1956 under the procedure
required by the statute where the granting of suspension of deportation
is approved, the record of lawful admission for permanent residence was
created, the deportation proceedings were canceled, and in due time the
alien was naturalized (Matter of Jung, A8 951 834).
In two other cases (Matter of S , 8 I. & N. Dec. 221, and Matter of S
, 8 I. & N. Dec. 226 (1958)), the Board of Immigration Appeals had under
consideration section 301(b), the identical section of law involved in
the present case. In those two cases, factually the coming to the
United States and consequently the beginning of physical presence in
this country were not in sufficient time to permit a full five years'
physical presence to accumulate before 28 years of age. The Board
nevertheless concluded that the applicants were to be regarded as having
constructively complied with the provisions of section 301(b), basing
its conclusions upon the fact that failure to take up timely physical
presence was due to circumstances beyond the control of the children.
Additionally, in a number of unreported cases, aliens who factually
at some time during the statutory period had been temporarily absent
from the United States in the Armed Forces of the United States were
nonetheless regarded by the courts as continuously resident and
physically present in the United States during the time they were so
abroad and as having met those statutory qualifications for
naturalization.
In all of the foregoing cases, there was the common factor -- as
there is in the instant one -- that literal compliance with the letter
of the law was presented by the action of the Government itself.
Based on the foregoing and in the absence of a clear legislative
directive that under circumstances such as those in the instant case the
concept of constructive physical presence in the United States is
inapplicable to section 301(b), this Service adheres to the view that
his physical presence in the United States within the meaning of section
301(b) has not been interrupted and he has not forfeited his United
States citizenship. His application for a certificate of citizenship
will, therefore, be granted.
The conclusion that the applicant has not been divested of United
States citizenship by reason of his absence from this country pursuant
to military orders is consistent with the well-settled principle of law
that no conduct results in expatriation unless it is engaged in
voluntarily (Nishikawa v. Dulles, 356 U.S. 129). To hold that the
applicant was voluntarily outside the United States within the
contemplation of section 301(b) loses sight of the obligations inherent
in military service.
ORDER: It is ordered that the action of the Regional Commissioner in
granting subject's application for a certificate of citizenship be
approved.
(1) See Appendix I.
(2) See Appendix II.
(3) See Appendix III.
(4) See Appendix IV.
Section 1933 U.S.R.S., as amended May 26, 1934:
Any child hereafter born out of the limits and jurisdiction of
the United States, whose father or mother or both at the time of
the birth of such child is a citizen of the United States, is
declared to be a citizen of the United States; but the rights of
citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the
United States previous to the birth of such child. In cases where
one of the parents is an alien, the right of citizenship shall not
descend unless the child comes to the United States and resides
therein for at least five years continuously immediately previous
to his eighteenth birthday, and unless, within six months after
the child's twenty-first birthday, he or she shall take an oath of
allegiance to the United States of America as prescribed by the
Bureau of Naturalization.
Section 301. (a) The following shall be nationals and citizens of
the United States at birth: . . .
(7) a person born outside the geographical limits of the United
States and its outlying possessions of parents one of whom is an
alien, and the other a citizen of the United States who, prior to
the birth of such person, was physically present in the United
States or its outlying possessions for a period or periods
totaling not less than ten years, at least five of which were
after attaining the age of fourteen years: Provided, That any
periods of honorable service in the Armed Forces of the United
States by such citizen parent may be included in computing the
physical presence requirements of this paragraph.
(b) Any person who is a national and citizen of the United States at
birth under paragraph (7) of subsection (a), shall lose his nationality
and citizenship unless he shall come to the United States prior to
attaining the age of twenty-three years and shall immediately following
any such coming be continuously physically present in the United State s
for at least five years: Provided, That such physical presence follows
the attainment of the age of fourteen years and precedes the age of
twenty-eight years.
(c) Subsection (b) shall apply to a person born abroad subsequent to
May 24, 1934: Provided, however, That nothing contained in this
subsection shall be construed to alter or affect the citizenship of any
person born abroad subsequent to May 24, 1934, who, prior to the
effective date of this Act, has taken up a residence in the United
States before attaining the age of sixteen years, and thereafter,
whether before or after the effective date of this Act, complies or
shall comply with the residence requirements for retention of
citizenship specified in subsection (g) and (h) of section 201 of the
Nationality Act of 1940, as amended.
Section 16 of the Act of September 11, 1957:
In the administration of section 301(b) of the Immigration and
Nationality Act, absences from the United States of less than
twelve months in the aggregate, during the period for which
continuous physical presence in the United States is required,
shall not be considered to break the continuity of such physical
presence.
Section 244. (a) As hereinafter prescribed in this section, the
Attorney General may, in his discretion, suspend deportation and adjust
the status to that of an alien lawfully admitted for permanent
residence, in the case of an alien who --
(1) applies to the Attorney General within five years after the
effective date of this Act for suspension of deportation; last
entered the United States more than two years prior to the date of
enactment of this Act; is deportable under any law of the United
States and is not a member of a class of aliens whose deportation
could not have been suspended by reason of section 19(d) of the
Immigration Act of 1917, as amended; and has been physically
present in the United States for a continuous period of not less
than seven years immediately preceding the date of such
application, and proves that during all of such period he was and
is a person of good moral character; and is a person whose
deportation would, in the opinion of the Attorney General, result
in exceptional and extremely unusual hardship to the alien or to
his spouse, parent or child, who is a citizen or an alien lawfully
admitted for permanent residence.
Respondent, who upon arrival in the United States was destined to join a vessel as a crewman, is ineligible for adjustment of his status under section 245 of the Immigration and Nationality Act, as amended (8 CFR 245.1), despite his admission as an alien in transit under section 101(a)(15)(C) of that Act.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Remained longer.
This is an appeal from the order of the special inquiry officer
finding respondent deportable on the ground stated above and denying his
application for adjustment of status under section 245 of the
Immigration and Nationality Act. Voluntary departure was granted. The
appeal will be dismissed.
No issue is taken with the finding of deportability. The special
inquiry officer found respondent ineligible for adjustment of status
because of his belief that respondent came within the terms of a
regulation which states that an alien crewman or an alien coming to the
United States to serve on a vessel cannot qualify for the relief.
Counsel contends that the regulation is invalid for it enlarges the
classes of persons who cannot obtain relief under the express terms of
the statute; and he contends that the regulation does not apply in any
event because respondent was not admitted to the United States as a
crewman or alien destined to join a vessel, but was admitted in transit.
The respondent is a 25-year-old married male, a native and citizen of
Greece, who was admitted to the United States on July 12, 1961, upon
presentation of a C-1 visa (alien in transit, section 101(a)(15)(C) of
the Act, 8 U.S.C. 1101(a)(15)(C)). /1/ Respondent was injured; he was
permitted to remain in the United States until August 10, 1961. Before
the date of his departure, he obtained a divorce from his wife in
Greece; in February 1962 he married a United States citizen. A visa
petition filed by respondent's wife was approved on April 12, 1962.
Respondent filed an application for adjustment of status under section
245(a) of the Act at his deportation hearing on July 2, 1962.
The agents of the steamship line to which respondent was destined
when he entered the United States have furnished the information that
respondent's entry was for the purpose of employment as a seaman on a
vessel (Ex. 7). The respondent admits that when he came to the United
States he had a seaman's book to ship as a crewman and that he came here
to reship on a vessel of the line on which he had arrived (pp. 13, 14).
In arriving at the finding of ineligibility, the special inquiry
officer relied upon section 245.1 of Title 8 of the Code of Federal
Regulations (Supp. 1962) which provides in pertinent part as follows:
An alien who on arrival in the United States was serving in any
capacity on board a vessel or aircraft, or was destined to join a
vessel or aircraft in the United States to serve in any capacity
thereon, or was not admitted or paroled following inspection by an
immigration officer is not eligible for the benefits of section
245 of the Act. * * * /2/
The Attorney General is given the power to prescribe the regulations
for the enforcement of section 245(a) of the Act. His regulation is
binding upon the Board. The regulation excludes from the benefits of
section 245(a) of the Act a person coming to the United States to join a
vessel on which he is to serve as an alien crewman; respondent is such
a person. The appeal must be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) At oral argument counsel supplied the information that an
investigation conducted by him revealed that an individual coming to the
United States to take employment on a vessel could have been issued a
D-1 (crewman) visa under section 101(a)(15)(D) of the Act, 8 U.S.C.
1101(a)(15)(D).
(2) For reasons hereinafter set forth no discussion of counsel's
contentions will be made; however, so that the contentions may be
understood, pertinent portions of the law and regulations will be set
forth.
Section 245(a) of the Immigration and Nationality Act (8 U.S.C.
1255(a)) reads as follows:
The status of an alien, other than an alien crewman, who was
inspected and admitted or paroled into the United States may be
adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully
admitted for permanent residence if * * *
The term "crewman' is defined to mean "a person serving in any
capacity on board a vessel or aircraft' (section 101(a)(10) of the
Act, 8 U.S.C. 1101(a)(10)).
An "alien crewman' is described as follows:
A n alien crewman serving in good faith as such in any capacity
required for normal operation and service on board a vessel (other
than a fishing vessel having its home port or an operating base in
the United States) or aircraft, who intends to land temporarily
and solely in pursuit of his calling as a crewman and to depart
from the United States with the vessel or aircraft on which he
arrived or some other vessel or aircraft; (section 101(a)(15)(D),
8 U.S.C. 1101(a)(15)(D)).
Respondent, who was indicted for abetting a nonimmigrant visitor "to make a false and fraudulent statement' in an application for an extension of stay, and who was convicted of an offense defined by the third part of 18 U.S.C. 1001, which relates to the making or use of a false writing knowing it to contain any false, fictitious or fraudulent statement, has not been convicted of a crime that involves moral turpitude.
CHARGE:
Order: Act of 1952 -- Section 241(a)(4) 8 U.S.C. 1251(a)(4) --
Convicted of crime involving moral turpitude committed within five years
after entry and sentenced for a year or more; 18 U.S.C. 2 and 1001.
This is an appeal by the Service from the order of the special
inquiry officer terminating proceedings. The respondent, a 34-year-old
male, a native and citizen of Cuba, last entered the United States in
January 1960 after a temporary visit abroad. He had been admitted for
permanent residence on December 20, 1957. On April 21, 1961, he was
convicted on a plea of guilty under 18 U.S.C. sections 2 and 1001 and
given a suspended sentence of a year. Deportation proceedings were
brought on the theory that respondent had been convicted of a crime
involving moral turpitude committed within five years after his entry
for which he had been sentenced to confinement for a year. The special
inquiry officer terminated proceedings on the ground that the record did
not establish that respondent's conviction was for a crime involving
moral turpitude.
Respondent was indicted for abetting a nonimmigrant visitor "to make
a false and fraudulent statement' in an application for an extension of
stay. Respondent was convicted "as charged.'
We need not concern ourselves with the effect of section 2 of Title
18 of United States Code which defines "principal'. The issues are (1)
under what clause of section 1001 was respondent convicted, and (2)
whether the portion under which conviction occurred involves moral
turpitude. Section 1001 of 18 U.S.C. consists of three parts. In
substance, a crime is created in the first part by the misrepresentation
of a material fact by scheme, in the second part by the making of "any
false, fictitious or fraudulent statements', and in the third part by
the use of a false writing knowing it to contain "any false, fictitious
or fraudulent statement'.
The special inquiry officer held that respondent had been convicted
under the third part. He terminated proceedings following a precedent
which held that a conviction under the third part does not involve moral
turpitude because of the conflict in the various circuits as to whether
materiality is required (Matter of G , 8 I. & N. Dec. 315).
The Service contends that the conviction was under the second clause
and that since the indictment to which the respondent pled guilty
charged him with the making of a false and fraudulent statement,
respondent must be deemed to have been convicted for making a fraudulent
statement. The Service urges that since fraud is involved, the crime
must be held one which involves moral turpitude. The special inquiry
officer was of the belief that even if the conviction had been under the
second part of section 1001, moral turpitude would not be involved
because the same words being used to spell out the crime in the second
and third clauses there still would remain a doubt as to whether
materiality is involved. Counsel's defense is based on the belief that
respondent committed the crime without any desire to violate the law.
He expresses his belief that the violation of law occurred when the
respondent, in an act of charity, suggested to a friend that she give a
Philadelphia address on an application for an extension of stay, rather
than a New York address, so that she could obtain a three-month
extension instead of one-month extension, thus avoiding the necessity of
making repeated applications. The examining officer takes issue with
this view of the motivation behind respondent's conduct (p. 11).
Whether or not respondent was convicted on the basis of the facts
alleged by counsel, the possibility of his conviction under such
circumstances is apparent; it raises considerable question as to
whether violation of such a law should be held to involve moral
turpitude. However, we need not decide the issue on this basis. We
agree with the special inquiry officer that the conviction was under the
third clause which concerns the making or use of a document containing a
misrepresentation and that such a conviction cannot at the present serve
as the basis for deportation. Even if we are wrong in this thesis, and
the crime consists of a violation of the second clause of section 1001
which concerns the making of false statements without reference to
writings, it seems to us that a question as to materiality would still
exist. Besides, the simple answer lies in the fact that the record does
not establish that there was a conviction for fraud rather than for
false misrepresentation. The second clause of 18 U.S. C. 1001 lists
the commission of several acts which can constitute the crime. These
acts are set forth in the disjunctive. Thus, it is a crime to make a
false writing knowing it to contain a "false, fictitious or fraudulent
statement' (emphasis supplied). In an indictment the elements of the
crime can be set forth in the conjunctive; however, a defendant can be
found guilty upon proof of the commission of any one of the acts charged
(United States v. Wells, 180 F.Supp. 707 (Del. 1959)). Under such
circumstances, there is a question as to whether the conviction was
based upon the existence of one element rather than another. We cannot
assume that the respondent pleaded guilty to fraudulent conduct rather
than false conduct. Since the burden is upon the Service, we must take
the case in the light most favorable to the respondent and assume that
the plea of guilty concerned a false rather than a fraudulent statememt
(Matter of B M , 6 I. & N. Dec. 806; Matter of B , 4 I. & N. Dec. 444,
448-451; Matter of B , 4 I. & N. Dec. 493, 496). The appeal of the
examining officer will be dismissed.
The Service also points out that the Board has held that an impairing
of Government functions can constitute fraud. The conviction in the
instant case was not for the impairing of Government functions, but for
violation of a law which this Board has held, cannot be said to involve
moral turpitude.
ORDER: It is ordered that the appeal of the examining officer be and
the same is hereby dismissed.
(1) Since respondent, a native and citizen of Yugoslavia, apparently had fulfilled his military obligations when he left Yugoslavia without permission; there is nothing in the record to indicate that he engaged in any activity inimical to the Communist Party in Yugoslavia or in any political activity whatever; and there appears to be no basis for assuming that the amnesty granted by Yugoslavia to about 150,000 persons outside the country, including persons who fled that country illegally after World War II, is inapplicable to a person deported to Yugoslavia, respondent has not established that he would be subject to physicial persecution under section 243(h) of the Immigration and Nationality Act.
(2) While respondent is apparently a refugee under the mandate of the United Nations High Commissioner for Refugees, this in itself does not establish that he would be subject to physical persecution under section 243(h) if deported to Yugoslavia because a person could be classified as a refugee for reasons other than fear of persecution.
CHARGE:
Order: Act of 1952 -- Section 241(a)(2) 8 U.S.C. 1251(a)(2) --
Nonimmigrant, remained longer than permitted.
This case is before us on appeal from a decision of a special inquiry
officer granting voluntary departure and directing that the respondent
be deported if he fails to depart voluntarily.
The respondent is a 33-year-old unmarried male, native and citizen of
Yugoslavia, who last entered the United States on May 28, 1959 at which
time he was admitted as a nonimmigrant crewman authorized to remain in
the United States during the time his vessel remained in port but not
exceeding 29 days. He has remained in the United States without
authority. In the event of failure to depart, the special inquiry
officer directed deportation to Australia, the country designated by the
respondent, with alternative orders of deportation to Yugoslavia and
Italy. That officer denied the respondent's application under 8 U.S.C.
1253(h) for withholding of deportation to Yugoslavia. The respondent
does not contest the special inquiry officer's conclusion that he is
deportable from the United States, and he stated that he does not think
he would be physically persecuted if deported to Italy. The sole issue
to be determined is whether the respondent has established that he would
be subject to physical persecution if deported to Yugoslavia.
We have carefully reviewed the entire record and our decision rests
solely upon this record. The respondent was born in 1928. He was
conscripted into the armed forces of Yugoslavia in 1948 and was
discharged about seven months later because of illness. Subsequently he
served about 17 months in the Army of Yugoslavia between 1951 and 1953.
With the exception of these two periods of military service, the
respondent lived and worked at home on the family farm until 1954 when
he left Yugoslavia in a small fishing vessel with five other adults and
landed in Italy. He testified that he lived in a refugee camp in Italy
from 1954 until he came to the United States in 1959.
In his application for withholding of deportation (Ex. 2), the
respondent asserts that he is opposed to communism; that he left
Yugoslavia without permission in 1954; and that, if he were deported to
Yugoslavia, he would be punished for having requested political asylum
in Italy. The respondent asserted that about 1950 he was interrogated
by the authorities in Yugoslavia because of certain statements he was
supposed to have made against the communists. He admitted that he was
not imprisoned at that time or subsequently; that he was not prevented
from attending church; and that his mother and sisters and brother
still attend church in the same place in Yugoslavia. He asserted,
however, that he believed the authorities intended to put him in jail
and that it was for that reason that he fled from Yugoslavia in 1954.
Under 8 CFR 242.17(c), the respondent has the burden of establishing
that he would be subject to physical persecution if deported to
Yugoslavia. The Government introduced a newspaper article dated March
14, 1962 (Ex. 6) indicating that Yugoslavia had granted an amnesty to
about 150,000 persons outside the country including persons who fled the
country illegally after World War II. In his letter accompanying the
appeal, the representative of the respondent states that he will not
return voluntarily to Yugoslavia and takes the position that the amnesty
may apply only to persons so returning and not to any who are deported
to Yugoslavia. While there appears to be no basis for assuming that the
amnesty is inapplicable to a person deported to Yugoslavia, it does not
appear to be too important whether the respondent is or is not
technically within the purview of this amnesty. He had apparently
fulfilled his military obligations when he left Yugoslavia, and we do
not believe that he has established that he would be physically
persecuted merely because he left Yugoslavia without permission. There
is nothing in this record to indicate that the respondent engaged in any
activity inimical to the Communist Party in Yugoslavia or in any
political activity whatever. Apparently he engaged principally in the
routine activity of a farmer. On the one occasion in 1950, when he
claims he was questioned by the authorities, no action was taken against
him. On this record, we are unable to say that the respondent has
established that he would be subject to physical persecution if returned
to Yugoslavia.
The remaining point in the argument on behalf of the respondent
relates to the letter (Ex. 4) dated May 10, 1962, by a representative of
the United Nations High Commissioner for Refugees which shows that the
respondent is a refugee under the mandate of the High Commissioner;
that his eligibility was determined on October 8, 1954; and that the
High Commissioner is opposed to the return, against his will, of any
refugee under the mandate to his country of origin. The special inquiry
officer stated that, even though the respondent was recognized as a
refugee in 1954, this did not mean that circumstances may not have
changed since that time. The letter of the respondent's representative
contains the assertion that the conditions have not changed for the
better in Yugoslavia since 1954 and he has referred to certain
statements indicating a closer relationship between Yugoslavia and the
Soviet Union. Actually, we do not believe it is material in the
respondent's case whether the present relationship between these
countries represents reapproachement or divergence. The fact remains
that Yugoslavia is a communist country, and we have considered this in
reaching our conclusion in the respondent's case.
Although the respondent is apparently a refugee under the mandate of
the United Nations High Commissioner for Refugees, this is itself does
not establish that he would be subject to physical persecution if
deported to Yugoslavia. In his decision (p. 5), the special inquiry
officer stated that an examination of the United Nations Resolutions
indicates that the jurisdiction of the High Commissioner, insofar as it
relates to this respondent, derives from the following: "Any person
who, as a result of events occurring before 1 January 1951 and owing to
well-founded fear of being persecuted for reasons of race, religion,
nationality or political opinion, is outside the country of his
nationality and is unable or, owning to such fear or for reasons other
than personal convenience, is unwilling to avail himself of the
protection of that country; * * *' (emphasis supplied). The language
which we have emphasized indicates that a person could be classified as
a refugee for reasons other than fear of persecution except that it
would not extend to a case where the reason was "personal convenience'.
We have taken into consideration the statement that the High
Commissioner is opposed to the involuntary return of any refugee under
the mandate to his country of origin. Nevertheless, we are required to
decide this case on the basis of the specific provisions of the laws of
this country. Since we have concluded that the respondent has not
established that he would be subject to physical persecution in
Yugoslavia, we are unable to make the finding required by 8 U.S.C.
1253(h). However, the respondent can avoid deportation to Yugoslavia by
departing voluntarily to any other country in accordance with the
voluntary departure privilege which was granted and, if he fails to
depart, an effort will be made to deport him to Australia, the
respondent having designated that country as the place of deportation.
In view of the foregoing, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
A petition for the issuance of an immigrant visa seeking to have the
beneficiary classified as the petitioner's "child' is denied because the
beneficiary, who was born out of wedlock in Port of Spain, Trinidad,
British West Indies, on March 17, 1948, does not come within the
definition of "child' set forth in section 101(b)(1)(C) of the
Immigration and Nationality Act, since under the law of her residence or
domicile (Chap. 5, No. 13 (1940) Revised Ordinances, Trinidad and
Tobago) and under the law of her father's residence or domicile (sec.
24, Domestic Relations Law of New York) her legitimation may be
accomplished only through the marriage of her natural parents.
This is an appeal from the order dated July 10, 1962, of the District
Director, New York District, denying the visa petition filed by the
petitioner to have the beneficiary classified as his "child' for the
issuance of an immigrant visa. The District Director ruled that the
petitioner had failed to establish that the beneficiary is his "child'
as that term is defined in the immigration laws.
The petitioner, a native of Carriacou Grenada, British West Indies, a
36-year-old male, is a naturalized citizen of the United States. The
beneficiary was born out of wedlock in Port of Spain, Trinidad, British
West Indies, on March 17, 1948. Petitioner has apparently had the
responsibility of raising the child since the child was one month of
age. The beneficiary apparently resides with petitioner's mother in
Trinidad. Petitioner alleges he was married once but no information is
furnished as to the name of his wife.
In order to qualify for nonquota or preference quota status as a
child or daughter of the petitioner, the beneficiary must fall within
the definition of "child' as set forth in section 101(b)(1) of the
Immigration and Nationality Act. The only category applicable to the
case of the beneficiary is section 101(b)(1)(C) which refers to a child
legitimated under the law of the child's residence or domicile, or under
the law of the father's residence or domicile, whether in or outside the
United States, if such legitimation takes place before the child reaches
the age of 18 years and the child is in the legal custody of the
legitimating parents at the time of such legitimation.
Under the law both of Trinidad and New York /1/ the natural parents
must marry in order to legitimate the child. There is no showing that
the beneficiary has been legitimated. The beneficiary cannot be
classified for immigration purposes as the child of the petitioner. The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
(1) Chapter 5, No. 13 (1940) Revised Ordinances, Trinidad and Tobago
(1950)
3. (1) Subject to the provisions sections concerning
legitimation:
(3). (1) Subject to the provisions of this section, where the
parents of an illegitimate person marry or have married one
another, whether before or after the commencement of this
Ordinance, the marriage shall, if the father of the illegitimate
person was or is at the date of the marriage domiciled in the
Colony, render that person, if living, legitimate from the
commencement of this Ordinance, or from the date of the marriage,
whichever last happens.
(2) Nothing in this Ordinance shall operate to legitimate a
person whose father or mother was married to a third person when
the illegitimate person was born.
(4) The provisions contained in the Schedule to this Ordinance
shall have effect with respect to the re-registration of the
births of legitimated persons.
10. (1) Where the parents of an illegitimate person marry or
have married one another, whether before or after the commencement
of this Ordinance, and the father of the illegitimate person was
or is, at the time of the marriage, domiciled in a country, other
than this Colony, by the law of which the illegitimate person
became legitimated by virtue of such subsequent marriage, that
person, if living, shall in this Colony be recognized as having
been so legitimated from the commencement of this Ordinance or
from the date of the marriage, whichever last happens,
notwithstanding that his father was not at the time of the birth
of such person domiciled in a country in which legitimation by
subsequent marriage was permitted by law. (Law of New York is
found in section 24, Domestic Relations Law, McKinney's
Consolidated Laws of New York.)